Office Hours: Friday 2-4 PM, Hauser 510

Course Reading Assignments: January 26th: pp. 1-10 (Vosburg & Notes 1-9); pp 12 (Notes 1 & 2), and pp

14-15 (Note 5) January 27th: Form & Substance in Private Law Adjudication (website);

Consent pp. 16-17 (Intro & Note 1); pp. 19-21 (Notes 4-5); pp. 22-24 (Notes 7-9); pp. 25 (Note 11); pp. 26-27 (Notes 13-14)

January 28th: Trespass pp. 28-36 (Dresnick opinion, Notes 1-5, 7&8), Conversion pp. 41-45 (Intro & Note 1), pp. 46-49 (Notes 3-7), pp. 50-51 (Note 9), pp. 54-55 (Note 12)

February 2nd: Start at Conversion, Supplemental Reading-Restatement, False Imprisonment pp. 56-63 (Rest provisons, Notes 1-6, skip Note 4)

February 3rd: Start with Conversion, Assault pp. 65-66, Rests, pp. 68-70(Notes 2, 4 & 5, start with Note 4), Singer supplemental reading

February 4th: IIED pp. 70-81; Hohfeld's "Some Fundamental Legal Conceptions as Applied in Judicial Reasoning" and Prybyla v Przybyla, 87 Wis.2d 441 (1978)

February 9th: Start at Pemberton, pp. 85-88, pp. 88-94 (Notes 3-8), pp. 94-95 (Note 10)

February 10th: Private Necessity, pp 97-99 (Ploof & Notes 1-2) and pp 100-106 (Vincent & Notes 3-6)

February 11th: Public Necessity, pp 106-107 (Note 1) & pp 108-111 (Notes 3-5) and Discipline pp 111-113 (Notes 1 & 2) & pp 117-120 (Note 6)

February 16th: Reasonable person standard, pp 121-127 (Williams & Notes 1-3), pp 131-132 (Note 7), pp 133-137 (Notes 1-2, Purtle & Note 1), and pp 139-140 (Note 4)

February 17th: Risk and Precautions pp. 140-152 (case and notes 1-7); pp. 155-158 (n. 10-12)

February 18th: Custom and Medical malpractice, pp. 158-168 (case & notes 1-9),

February 23rd: Negligence per se (pp. 169-182, stop after note 12) February 24th: Res Ipsa Loquitur pp. 190-194 (n. 1- 3), 195-198( n. 5-8) February 25th: pp. 199–201 (case); pp. 202-206 (N. 3-6); pp. 206-214 (case

& N. 1-7) March 2nd: Strict Liability pp. 394-399 (Behrens & n. 2); pp. 404-408 (case &

n. 1-2); pp. 410-413 (n. 7-9). Supplemental Reading by the end of week March 3rd: Abnormally dangerous activities pp. 414-426 (Rest provisions,

case Indiana, n 1-4), pp. 428-431 (n. 9-10) March 4th: Respondeat superior pp. 431-439(case n. 1-5); pp. 440-446 (n. 7-

13); addtl supp reading from Shavell March 9th: Construction & Duty of care pp. 215-222 (case and notes 1-4); pp.

224-227 (n. 7); pp. 227-231 (case and notes 1-5) March 10th: pp. 234-236 (n. 1-3); pp. 239-247 (rest, case, n. 1-6) March 11th: Duties arising from occupation of land, p. 253-4 n. 1, 2. p. 256-

262 n.5-7, 1-3, n. 1, p. 264 n. 3, p. 267-68 n. 6, p. 249-250 n. 1

March 16th: Privity and Pure Economic Loss pp. 270-275 (case & notes 1-4) pp. 277-279 (case and n. 1) pp. 281-282 (n. 5) pp. 283-285 (n. 9)

March 17th: pp. 288-295 (Case & notes 1-3) and pages 300-303 (notes 10-14) March 18th: pp. 307-310 (Grimstad and n 1-2) pp. 312-313 (n. 4), pp. 317-324

(case and n 1); pp. 326-328 (n. 3) March 30th: pp. 332-335 (summers & n. 1-3), pp. 336-343 (sindell & n. 1-5) March 31st: Proximate Cause, p. 351-67 April 1st: p. 367-377; p. Palsgraf 377-385 April 6th: Defense p. 565-580 April 7th: pp. 580-590 Express Assumption of Risk. April 8th: pp. 590-597 (Murphy and notes 1-4: Primary Assumption of Risk April 13th: pp. 598-603 (n. 1-5) April 14th: Products Liability-Historical Development of Doctrine pp. 447-463

(3 cases) April 15th: No new reading April 20th: Manufacturing Defects pp. 463-468 (Rest and Welge); pp. 471-477

(Notes 4-10) April 21st: pp. 477-491 (rest, case dawson, notes 1-7) April 22nd:Failure to Warn pp. 493-508 (probably only the beginning) April 27th: No new reading April 28th: Damages, pp. 515-523, online case April 29th: Review

I. Intentional Torts:Two Types of Torts:

1) Unintentional: harms generally regarded as accidental2) Intentional: harms inflicted more or less deliberately

Most of tort law is state by and state and is mostly judge-made rule rather than statutory.

For each intentional tort there is a distinct prima facie case consisting of “elements” of the claim that a plaintiff must allege and prove in order to win a lawsuit.

A. Battery

1. Intent and Volition

Vosburg v. Putney (1891) [pp 1] Facts : Defendant (12) kicked the Plaintiff (14) in the shin in a schoolroom,

after the teacher called the class to order. It was a light kick, but it aggravated a prior injury and caused the Plaintiff’s leg to become lame.

Procedural History: The jury rendered a special verdict finding that the above did occur, but that the defendant did not intend to do the Plaintiff harm. They calculated damages at $2500. Trial court entered judgment for Plaintiff and Defendant appeals.

Ruling : Judgment affirmed. Rule of Intent: Plaintiff must show that either the intention was unlawful, or

that the defendant is in fault. If the intended act is unlawful, the intention to commit it must necessarily be unlawful.

o The defendant’s act of kicking the plaintiff, which was a violation of the rules of the school, was unlawful; therefore, the intention was unlawful.

Rule of Damages: the wrongdoer is liable for all injuries resulting directly from the wrongful act, whether they could or could not have been foreseen by him. (Brown v. Railway Co.) This is in contrast to contract law, which holds that one is liable only for damages that are reasonably foreseen.

o The Defendant was responsible for damages for causing the Plaintiff’s leg to become lame although he could not have anticipated such an outcome.

The Eggshell Skull Plaintiff Rule: You take your victim as you find him/her; even if there is no way to anticipate the harm that will befall someone, you are still liable for the damages.

o Derives from the idea of a person’s rights to his/her bodily security. By engaging in an infringement of those rights, the plaintiff becomes liable.

Elements of the Crime:

o Intento Some sort of harmful or offensive bodily contacto Harm that arises from that contact

Torts liability is based on the idea that there shouldn’t be liability without fault. However, it may go against our judgment to punish a 12-yr old boy for kicking someone. At the other end of the spectrum is the idea of two innocents and punishing the less innocent (more guilty) party.

Knight v. Jewett (1990) [pp. 3] Facts : Knight and Jewett played a game of touch football in which there was

one explicit rule: to stop the player with the ball it was necessary to touch the player above the waist. During the game Knight warned Jewett that if he did not stop playing so roughly she was going to leave the game. Later Jewett knocked Knight down and stepped on her little finger. There are conflicting versions, but Knight admitted that Jewett did not intend to step on her hand and did not intend to hurt her. Knight had 3 surgeries and her finger was eventually amputated.

Ruling : In an action against Jewett to recover damages for battery, etc., the Ca S Ct affirmed summary judgment for Jewett stating, “without the requisite intent, Knight cannot state a cause of action for assault and battery.

Differentiation : The initial contact (the push) wasn’t harmful or offensive and he did not intend to step on her finger. Given the context, the contact was not unlawful.

Definition of Battery: intentional bodily contact, which is either harmful or offensive. The intent element is with respect to the contact, rather than a desire to bring about a specific result or injury. [pp. 4]

White v. University of Idaho (1989) [pp. 4]: The piano lesson. A piano teacher walked up behind his student and drummed his fingers on her back to demonstrate the motions of a piano teacher. This contact caused thoracic outlet syndrome, requiring the removal of a rib. The court held that, although he did not intend to cause the harm, White is still liable for the damages.

Subjective Test for “Harmful or Offensive”: Look to the mindset of the person who was touched. This is NOT the majority rule. There is likely a reasonable person standard.

o White said that she was surprised by the teacher’s action and that she would not have permitted it.

The Insanity Defense:Polmatier v. Russ [pp. 5]: A man suffering from paranoid schizophrenia was convicted for wrongful death for shooting his father-in-law due to his belief that his father was a spy who planned to kill him. The insanity defense was rejected and the defense of involuntary act was rejected. See Restatement example on pp. 6.

The Traditional Rule is against making an allowance for insanity in measuring a defendant’s intent. This is based on public policy: the liability of lunatics for their torts tends to secure a more efficient custody and guardianship of their persons; there is more injustice in denying to the injured party the recovery of damages for the wrong suffered by him, than there is in making the estate pay (as between two innocents), and otherwise there will be an incentive to claim insanity to escape punishment.

Voluntary Acts: “Act” is used to denote an external manifestation of the actor’s will and does not include any of its results. Restatement Second of Torts §2

Laidlaw v. Sage (1896) [pp. 6]: A man threatened with dynamite in his office walks toward one of his unsuspecting employees and places the employee between himself and the carrier of the dynamite. The dynamite explodes; the employee is injured, but the man is not. The employee brings a claim for battery. The NY Ct of Appeals ruled that the trial court gave an improper instruction on involuntary acts.

Self-preservation is the first law of nature. The law presumes that an act or omission done or neglected under the influence of pressing danger was done or neglected involuntarily.

Distinction between Laidlaw and Polmatier: Laidlaw is based upon the idea that we will not punish people who are not at fault. Polmatier is based on the theory of punishing the lesser innocent. The court believes that acting under extreme duress should be treated differently; you cannot deter this type of behavior.

Keel v. Hainline (1958) [pp. 8]: Kids playing in a classroom were throwing blackboard erasers and chalk back and forth across the room. One of the erasers hit a girl sitting in the middle of the room and shattered her glasses causing her to lose an eye. The defendant was convicted although he did not intend to cause her harm. He intended to engage in the wrongful act, so the intent was wrongful. The other students engaging in the “horseplay” were also convicted because they were aiding and encouraging the assault and battery.

Transferred Intent: If A attempts to commit a battery against B but mistakenly hits C instead, C can sue A for battery. A’s intentions toward B are combined with the harmful contact with C to create a battery.

Although the defendant had a defense of consent against the original victim, there was still a prima facie case of battery against the original victim, which was sufficient for transferred intent.

Aiding and abetting: the actions of the group created the situation that caused the harm so the group should be punished.

Garrett v. Daly: A 5-yr old boy pulls a chair out while an elderly woman is about to sit down. The 5 yr-old did not intend for the woman to hit the floor, but she did and she injured her hip. The trial court found the boy not liable because he didn’t have the intent to cause the contact (between the woman and the floor). The appellate court reversed; even without the intent, there was substantial certainty (even for a

5-yr old) that the woman would hit the floor, and that was enough to satisfy the intent requirement.

Rule: It is not necessary to know or intend that the contact will occur. As long as there is a substantial certainty of contact, the intent element is satisfied.

There is no infancy defense.Parental Liability: The common law does not hold parents liable for their childrens’ tortuous acts. Some state laws have modified this rule (see NC statute, pp. 10).

2. Minimum Requirements-Harmful or Offensive Contact:Leichtman v. WLW Jacor Communications [pp. 12] held that intentionally blowing tobacco smoke repeatedly in someone’s eyes is sufficient to constitute battery. The contact occurred through the particulate matter. The real harm was the insult; damages would be nominal.

Madden v. DC Transit System [pp. 12] held that the fumes emitting from a bus, which made contact with the plaintiff while he was standing on a traffic island, were not sufficient to constitute battery. The court said that there was an absence of malice, willfulness, or specific wrongful intent. Distinction: Reasonable expectations as a reason to infer consent. Intent. Offensiveness.

Restatement Second §18 [pp. 14]: 1. Comment c. Meaning of contact : Intentional contact can be inflicted through

clothing or anything held or attached to one’s body. If the actor directly or indirectly causes the person to come into contact with a foreign substance that is offensive (i.e. throwing water on him, setting a dog lose on him, or soaking a towel in filth that he knows the person will likely use).

2. Comment d. Knowledge of contact : It is not necessary that the person know of the contact when it is made. Example: A kisses B while asleep but does not waken or harm her. A is subject to liability to B.

3. Comment g. Necessity of Intention : An actor cannot be liable for only offensive contact, which is not harmful, if he did not intend the contact, although his actions may be reckless or negligent.

Restatement Second §19: Offensive Contact [pp. 14]: A contact is offensive if it offends a reasonable sense of personal dignity.

3. Consent and its LimitsConsent can be used as an affirmative defense to battery or render an otherwise offensive contact inoffensive.

Grabowski v. Quigley (1996) [pp. 16]

Facts: Grabowski went to Quigley for surgery. After experiencing complications after the surgery G requested his medical charts and discovered that another doctor performed most of the surgery as Quigley was dealing with another patient across the county. Grabowski brought charges of battery against Quigley and the other doctor.

Procedural History: Trial court gave summary judgment to the defendants. Rule: Where a patient is physically and mentally able to consult about his

condition, in the absence of an emergency . . .an operation without the patient’s consent is a technical assault. The consent goes to the specific person you consented to.

o Rest. §52 Comment b : In many cases a patient may be giving consent to the hospital and not one particular physician.

Ruling: Summary judgment reversed.

Werth v. Taylor (1991) [pp. 19]: Facts: Cindy Werth was a Jehovah’s Witness and did not believe in blood

transfusions. Werth deliverd twins. Her doctor talked with her about her unwillingness to have blood transfusions. She experienced complications and it was determined that she needed a transfusion or she woud die. Another doctor, Taylor, ordered the procedure although he was aware of her beliefs and she had filled out a refusal form.

Procedural History: Werth sued Parsons, Taylor, and the hospital for battery. The trial court gave summary judgment to the defendants.

Rule: Consent is implied where an emergency procedure is required and there is no opportunity to obtain actual consent (i.e. unconscious patient and procedure needed to save patient’s life). Consent is also implied where a patient seeks treatment or otherwise manifests a willingness to submit.

Holding: Court of Appeals affirmed summary judgment for defendants. Her prior refusals had not been made when her life was hanging in the balance or when it appeared that death would result if a transfusion was not given. Her refusals were not informed.

Rest. §892 Meaning of Consent [pp. 20] Consent is willingness in fact for conduct to occur. It can be manifested

through action or inaction. Apparent consent: when words or conduct would be reasonably understood

by another to be intended as consent. If you wanted the contact, even though this was not communicated, battery

did not occur.

Freedman v. Superior Court (1989) [pp. 22] Facts: Plaintiff was in labor and called her doctor who instructed her to go to

the hospital and ask for Pitocin, which would prevent infections. In fact, the drug was meant to induce hard labor contractions.

Procedural History: Plaintiff sued for battery. Trial court granted defendants’ motion to dismiss. Appellate court affirms.

Rule: To negate consent the mistake must extend to the essential character of the act itself (what makes it harmful or offensive) rather than to some collateral matter, which merely acts as an inducement.

o Example: The doctor who delivers your child is a former Nazi war criminal. He lies about this. You are injured in the sense that your baby was delivered by him, but there is no liability.

o Example: A dentist lies about having HIV; there is no liability. Note: The court views the consent as consent to do what’s necessary to

deliver the baby, not as consent to take a specific drug. The plaintiffs later alleged that the doctor gave the plaintiff the drug because he did not want to be in the hospital all day on a Saturday. The court implied that if this claim was alleged in their initial complaint, then the outcome would have been different because the intent would have been a selfish purpose and it would have gone to the “essential character” of the act.

Neal v. Neal [pp. 23] Facts: Mary Neal’s husband was having an affair. She said that she would not

have consented to having sex with him if she knew what he was doing and thus her consent was fraudulently induced and this was battery.

Ruling: She consented to having intimate relations with her faithful husband. Battery did occur according to the appellate court.

o According to the majority rule: Battery did not occur. The fraudulent behavior did not go to the essence of the act.

Causation and something that goes to the essence of the case are not necessarily the same thing.

Rest. §892B Consent under Mistake, Representation, or Duress [pp. 23]A permits B to stain A’s face with walnut juice, for purposes of masquerade. A is ignorant of the fact that walnut juice leaves a permanent stain and B knows that A does not know it. B is subject to liability to A for battery.

Rest. §57 Fraud or Mistake as to Collateral Matter [pp. 24]

McNeil v. Mullin (1905) [pp. 25]: Facts: Case of road rage. Two men exchange hostile words. They get out of

their horse-drawn buggies and begin fighting. Procedural History: Plaintiff sues defendant to recover for injuries.

Defendant claims plaintiff consented to fight. Trial court finds for the defendant.

Minority Rule: Consent to an illegal act is void.o The consent to a breach of the peace (a public fight) is void because

the state is a party and the law will not listen to an excuse based on the breach of the law.

Majority Rule: Consent to an illegal act is valid consent (see Rest). Ruling: Kansas S Ct reversed and remanded. Battery did occur.

Rest. §892C Consent to Crime [pp. 26] Consent is effective to bar recovery even if the conduct consented to is a

crime. o Example: A and B commit adultery (a crime). Neither is liable to the

other for those contacts. Exception: If conduct is criminal to protect a certain group, a person of that

group cannot give consent that would bar recovery. o Example: statutory rape with the consent of the minor

Hollerud v. Malamis (1969) [pp. 27]: Facts: Hollerud consumed several drinks at defendant’s bar. Hollerud

engaged in a friendly wrestling match with the bartender. Hollerud injured his fingers.

Procedural History: Hollerud sues for battery. Trial court grants summary judgment to defendants on the basis of consent. Court of appeals reverses.

Rule: If the plaintiff, owing to his intoxication, was incapable of expressing a rational will and the defendant had knowledge of this, the consent is ineffective.

o In general, being intoxicated is not a defense to battery.

Form & Substance in Private Law AdjudicationThe jurisprudence of rules is the body of legal thought that deals with legal form-the choice between rules and standards.Dimensions of Form:

Formal Realizability : the degree to which a legal directive has a quality of “ruleness.” The two extremes of the spectrum are a definitive rule (such as liability based on age) versus a standard or policy.

o Virtues of Formally Realizable Rules: 1. Restraint of official arbitrariness: use of criteria of decision

that are inappropriate in view of the underlying purposes of the rule (i.e. corruption, political bias)

2. Certainty: If private actors can have advance notice of the incidence of official intervention, they will adjust their behavior.

Generality v. Particularity o A general rule will be more over- and underinclusive than a particular

rule. o The multiplication of particular rules undermines their formal

realizability. (Ex: different age of capacity for drinking, voting, etc.)o A regime of general rules should reduce to a minimum the occasions

of judicial lawmaking.o The application of a standard to a particular fact situation will

generate a particular rule much narrower in scope than that standard.

B. Trespass

Definition: to enter upon another’s land without consent Intentionally enter upon someone else’s land or cause something to enter

onto someone else’s land. Mistake of fact (believing the land is yours) is not a defense to trespass.

Trespass v. Nuisance: Trespass : interference with the right to exclusive possession of land Nuisance : interference with the right to the use and enjoyment of land

Desnick v. American Broadcasting Companies (1995) [pp. 28] Facts: ABC sent employees posing as patients to the Desnick Eye Center to

secretly videotape the Desnick employees. The recordings were featured on Primetime Live.

Procedural History: Desnick sues for trespass on the basis that consent would not have been given if their true identities were known. The district court dismissed the trespass complaint.

Rule: Fraud does not automatically invalidate consent. There must be an infringement of the interest that the law of trespass protects (right to exclusive possession). Parallel between battery and trespass.

o Trespass: A stranger enters someone’s house under the guise of being a meter reader. The homeowner does not want strangers in his house unless they have authorized service functions.

o No Trespass: Food critic conceals his identity in a restaurant. The restaurant owner wants customers so no infringement of interests.

Holding: The entry of the ABC employees did not infringe the kind of interest protected by the law of trespass. The offices were open to anyone seeking their services. Dismissal of trespass count affirmed.

Policy Rationale: There are an endless amount of situations where someone can claim trespass, such as a restaurant critic. Some of these situations are activities that we want to allow. In addition, we don’t want to open the floodgates to this type of litigation.

Rest §168 Conditional or Restricted Consent [pp. 31]Conditional or restricted consent to enter land creates a privilege to do so only in so far as the condition or restriction is complied with.

Example: A give B permission to drive his cow through Blackacre to B’s pasture, lot X. B enters Blackacre to draw gravel from lot X, or to go to lot Y. Both are trespasses.

Rest §158 Liability for Intentional Intrusions on Land [pp. 32]

You are liable for trespass if you intentionally enter on another’s land, remains on the land, or fails to remove from the land something which you have a duty to remove. Pegg v. Gray (1954) [pp. 32]

Facts: The defendant and plaintiff owned adjoining farms. During hunting season, the defendant’s dogs would often chase foxes onto plaintiff’s land causing his cattle to stampede and break down the fences.

Rule: If you intentionally cause something to enter onto someone else’s land, you are liable for trespass.

o Without the permission to hunt, an owner is liable for his animals entering another’s land.

Holding: The defendant is liable for trespass. He had actual or constructive knowledge that his dogs would likely enter the plaintiff’s land.

Malouf v. Dallas Athletic Country Club (1992) [pp. 33] Facts: Plaintiff lived next to the defendant’s golf course. On three occasions

golf balls from the course hit the plaintiff’s car. The golf boys went astray at the sixth hole

Holding: No trespass. There was no evidence that the individual golfers intended to hit their balls in that direction or violate the plaintiff’s rights.

Distinction: The certainty that the object will enter someone else’s land is a distinguishing factor regarding the intent element.

Van Alstyne v. Rochester Telephone Corp (1937) [pp. 35] Facts: Defendants owned a telephone line that ran through plaintiff’s land.

After repairing the line, with permission of the landowners, the defendants left behind drops of lead. The plaintiffs’ two dogs subsequently died of lead poisoning.

Rule: If you cast articles or substances upon the premises of another without permission, you are liable for trespass. This includes leaving behind substances that you were responsible for removing. (This case is likely not the right outcome in accordance with the doctrine-the intent element is missing).

o Non-negligence is not a defense because this is private property (castle doctrine).

Holding: The defendants are liable for trespass. Intent does not matter in this case because the defendant’. A defendant is liable even for unforeseeable damages.

C. Conversion

In general, trespass involves real property and conversion involves personal property.

1) Definition: interference with the plaintiff’s personal property to such an extent that the defendant is required to pay its full value. In a conversion action, the plaintiff is seeking damages equaling the value of the converted property.Elements

1) Intentional exercise of dominion or control2) that seriously interferes with the rights of the possessor

a. serious interferences are listed in §222A: extent and duration of control, good faith, extent of interference with owner’s right of control, harm done to chattel, inconvenience and expense caused to the other

2) Trespass to chattel: dispossession or use of someone else’s chattel. If you are using or meddling with someone’s chattel, you will only be liable if you diminished the value of the chattel, if you have deprived the person of use for a period of time, or have harmed a person or thing that the person has an interest in. Damages will be equal to the diminished value, not the value of the property.

harm to the personal property, diminution of its quality, condition, or value as a result of the defendant’s use (CompuServe)

3) Replevin: An action where the plaintiff is seeking return of the property, as opposed to damages.

Russell-Vaughn Ford, Inc. v. Rouse (1968) [pp. 44] Facts: The plaintiff went to a car dealership to discuss trading in his car. He

gave his keys to a salesman. Negotiations failed and he asked for his keys back. The salesman claimed they were lost; no one would help him and other salesmen laughed. Once the police arrived, they returned the plaintiff’s keys.

Rule: The refusal, without legal excuse, to deliver a chattel, constitutes a conversion. It is enough that the defendant exercised dominion over the property in exclusion or defiance of the plaintiff’s right; the defendant does not need to appropriate the property to his own use.

Holding: Conversion did occur. The plaintiff receives $5,000 in damages-the value of the car.

The damages award was based on a deterrence goal. It was often the practice of the dealership to play such jokes. The idea is that you will only catch the person one out of every ten times that he has committed such an act, so when you do catch the person the court really wants to punish the person. The counter-argument to this idea is that you are punishing someone for something that they have not been convicted of and that they might not have done, in essence, making an example of the person. Also, you do not want to deter individuals from committing efficient breaches (i.e. borrowing a car for an hour to save your child’s life by driving him to the hospital). On the other hand, if you don’t set the damages amount high enough, this behavior may continue because the damages will be so low that the party may be willing to pay the few times that he/she is caught. High damages are way of bribing people to bring suits, which help accomplish these desirable social outcomes.

Spooner v. Manchester (1882) [pp. 46] Facts: Defendant rented a horse from plaintiff for a trip from Worcester to

Clinton and back. On the way back the plaintiff got lost and was delayed. The horse became lame during this time.

Rule: Whether an act involving temporary use, control or detention of property implies an assertion of a right of dominion depends on the circumstances of the case and the intention of the person.

o The important element in this case is the intent to assert a right of dominion or property, not the intent with respect to the property of another.

If a person wrongfully exercises acts of ownership or of dominion over property under a mistaken view of his rights, the tort may still be a conversion.

Holding: The defendant intended to return the horse at all times. No conversion.

Wiseman v. Schaffer (1989) [pp. 47] Facts: A tow truck driver towed an unattended vehicle on the basis of

information furnished over the phone. The caller was an imposter and the truck was later stolen from the place it was towed.

Holding: No negligence because this is standard practice. The court says this is conversion.

o This is an example of “as between two innocents”-we want the harm to fall on the tow truck driver because he is the party who is better able to protect against this. Tension between the right to security (the car owner) and the right to go about one’s job freely.

O’Keeffe v. Snyder (1980) [pp. 47]: Facts: O’Keeffe’s paintings were stolen from an art gallery. The paintings

were later discovered on display in an art gallery. Snyder claimed to own the paintings; he bought them from Ulrich who inherited them from his father. There was no way to show how Ulrich’s father gained possession of the paintings.

Rule: A thief acquires no title and cannot transfer good title to others regardless of their good faith and ignorance of the theft.

Holding: This was an action for replevin. O’Keeffe was entitled to recover her paintings (if she met the SOL requirements).

Phelps v. McQuade (1917) [pp. 48] Facts: The plaintiffs, jewelers, gave a man valuable jewelry on the basis of a

credit rating of the person the man was posing as. The man sold the jewelry to McQuade.

Procedural History: The plaintiffs sued McQuade to recover the jewelry.

Rule: When the vendor intends to sell goods to the person he’s dealing with, title passes, even if he is deceived as to the person’s identity or responsibility. It is a question of the vendor’s intention.

Holding: The plaintiffs can’t recover. Title passed to the imposter and, therefore, to McQuade through the subsequent sale.

Theft v. Fraud: Theft: A thief acquires no legal title and cannot transfer title to a purchaser.

A purchaser cannot transfer title to a subsequent purchaser. The thief has a “void” title.

o A subsequent purchaser is liable for conversion to the original owner. Fraud: The fraud obtains “voidable” title. Up until the voiding occurs the

fraud has title to the goods and can pass it on to an innocent purchaser. The reason for the distinction may be based on the idea that fraud is more

difficult to ascertain and would make chain of title less certain. UCC §2-403 [pp. 49] Restatements (supplements)

Anderson v. Gouldberg (1892) [pp. 50] Facts: Defendants took logs from the property of Anderson. Anderson

sues for replevin. Defendants claim Anderson tortiously acquired the logs by trespassing on the property of a third party.

Rule: To maintain an action for replevin a plaintiff’s possession must have been lawful against the person who deprived him of it; possession is good title against everyone except those having better title.

o Possession creates the presumption of title. Holding: Anderson can replevy the logs.

CompuServe, Inc. v. Cyber Promotions (1997) [pp. 54] Facts: CompuServe was an internet service provider. Cyber Promotions was

an advertising company that sent spam mail to email accounts held by CompuServe customers. CompuServe prohibited the defendant from using its equipment to process and store its spam, but they continued to do so. CompuServe sued for trespass to chattels.

Rule: An action for trespass to chattels can be sustained on the basis of harm to the personal property, diminution of its quality, condition, or value as a result of the defendant’s use.

o The defendant’s use demand disk space and drain processing power.o Electronic signals generated and sent by computers can be sufficient

to support a trespass cause of action. (The final destination is the place used to determine trespass.)

D. False Imprisonment

Definition: protects the plaintiff’s interest in freedom of movement; when one party confines another without authorization. It can be formal or informal incarceration. Elements:

1) An act intending to confine someone within fixed boundaries2) The act directly or indirectly results in confinement3) Either the person knows they are confined or is harmed by the confinement

Rest §35 False Imprisonment [pp.56]If the person knows that there is another exit or mode of escape than they are not imprisoned. Rest §36 What Constitutes Confinement [pp. 56]Hypos:

The police tell you that you are not allowed to leave, but they do not handcuff you. This may or may not be false imprisonment. Although there was an escape, the person doesn’t know that they are able to leave because they believe they are under arrest.

Confinement within a country is not false imprisonment, but confinement within a state or city may be (see Rest §36).

Rest §38 Confinement by Physical Barriers [pp. 56] Removes a ladder prohibiting B from exiting a well. Takes away crutches from someone who is cripple.

Peterson v. Sorlien (1980) [pp. 57] Facts: A college girl joins a religious group and becomes very involved. Her

parents believe that she has been brainwashed and they stage an intervention. Her father takes her to a house to be “deprogrammed.” The first couple of days she is distraught and begs to be released but then she becomes happier. After two weeks the plaintiff leaves.

Proc History: Plaintiff sues her parents and the deprogrammers for false imprisonment. Jury finds for the defendants and the Minnesota S Ct affirms.

Rule : To utilize consent as a defense for the entire period or any part, the evidence must demonstrate that the plaintiff voluntarily consented.

Analysis: The jury found that the plaintiff’s voluntary participation after the first three days was a waiver. Due to cult indoctrination, the plaintiff was thought to regain her volitional capacity to consent only after the first 3 days. Society has a compelling interest in intervention.

Holding : When a parent believes his/her child’s judgmental capacity is impaired due to participation in a religious cult, and the child at some point assents to the actions in question, then the limitations upon the child’s mobility do not constitute false imprisonment.

Eilers v. Coy (1984) [pp. 59] Facts: 24-year old plaintiff joined a religious group. His family arranged to

have him abducted and taken to an institution for deprogramming. During the beginning he was kept handcuffed to the bed. Plaintiff tried to escape and failed. He pretended to cooperate and eventually escaped. He sues for false imprisonment.

Holding: Directed verdict for the plaintiff. Distinguished: The child never consented to the confinement-he

continuously tried to escape. Narrow interpretation of the first case. Also, the deprogramming in this case seems more severe than that in Peterson (handcuffs, boarded windows, etc).

Bright v. Ailshie (2002) [pp. 59] Facts: Vincent Bright was arrested. He gave the police and bail bondsman his

brother’s name and information. Vincent jumped bail and the bond company hired a bounty hunter. They apprehended Dennis Bright, the brother, and brought him from Detroit to Missouri. He was released after the mistake was discovered.

Analysis: According to Michigan law, a private person may arrest a person who has committed a felony. There is no probable cause qualification.

o Although the bounty hunter had probable cause to believe Dennis Bright committed a felony, he is still liable for false imprisonment.

Holding: Michigan S Ct finds for plaintiff. Probable cause does not vitiate the lack of commission of a felony. This is viewed in the lens of strict liability.

California Rule: if you have a reasonable belief that the person committed the felony in question, then you are not liable for false imprisonment; closer to a negligence standard.

Shoplifters: Most states have passed laws allowing shopkeepers to detain suspected shoplifters in a reasonable manner and for a reasonable time, without liability even if their suspicions are wrong.

Baggett v. National Bank & Trust Co (1985) [pp. 62] Facts : A man goes to a bank to deposit a check. He picks up a deposit slip

at the bank and hands it to the teller. The slip has the words “this is a stek up” written on the back. The man is arrested and detained for 3 hours. Evidence showed that there were a number of similar deposit slips at the bank and that the man’s handwriting did not match, but he was still taken to the police station and questioned.

Proc History : He sues the bank for false imprisonment. Trial court grants SJ to bank. Ct of Appeals affirms. ‘

Analysis : The decision to arrest Baggett was made by the police and the evidence provided by the bank was accurate. The bank was not liable.

o There is an implication that if the bank employees provided inaccurate information, which led to the arrest, then they would be liable.

o If the employees demanded that the officers arrest Baggett, then they may be liable for false imprisonment. The more assertions you make as opposed to just recounting the facts, the more the actions approach the realm of false imprisonment

E. Assault

Definition: intending to cause harmful or offensive contact, or creating the imminent apprehension of such contact

1) An act intending to cause harmful or offensive contact OR an act intending cause apprehension of harmful or offensive contact

2) And the person actually has imminent apprehension of such contact

Hypo§24: A scrawny individual attempts to swing at a heavyweight champion. Although the heavyweight may not be scared of injury, this is still assault. On the other hand, if the heavyweight takes a swing at the scrawny man, but the scrawny man’s back is turned and he doesn’t see the swing, this is not assault.

Tuberville v. Savage (1669) [pp. 70] Facts: The plaintiff put his hands on his sword saying that if the judge was

not in town, I would not take such language from you. The defendant attacked the plaintiff on the basis of this.

Proc History: the plaintiff sues the defendant for battery and the defendant uses assault/provocation as a defense.

Holding: This was not assault because there was no imminent apprehension of harm. The defendant knew that the plaintiff would not strike then.

Bennight v. Western Auto Supply Co (1984) [pp. 68] Facts: Bennight worked in a retail store owned by the defendant. There was

a warehouse in back that he knew to be infested by bats. Against her protests her boss ordered her to go into the warehouse. She was bitten; she responded poorly to treatment and became blind.

Proc History: Bennight’s husband sues on the basis of assault Holding: The manager’s intent to place Bennight in imminent apprehension

of harm (she was afraid of the bats) by making her enter an unsafe situation is sufficient to establish the intent for assault. It is not necessary for him to intend that the harm actually befall her.

Newell v. Whitcher (1880) [pp. 70] Facts: Newell, a blind woman, spent the night in the defendant’s home. She

was a music instructor for the defendant’s children. The defendant entered her room and made repeated sexual advances. She spent the rest of the night awake.

Proc History: Newell sues for battery. Trial court gives a directed verdict for Newell. Defendant appeals.

Ruling: The court finds that assault did occur. Note that this case was in 1880, and the court references the virtue of the poor girl, etc . . .

There is clearly a causal link between the defendant’s actions and the fear or harm experienced by the plaintiff. The issue lies in the imminent apprehension element-if the defendant framed these sexual advances as

simply requests than, objectively, the plaintiff was in no danger. The intent element is also may be lacking; it is not clear that the defendant intended the contact or the apprehension to occur. The outcome of this case depends a lot on the actual words that were used and how insistent the defendant was.

The Legal Rights Debate, Singer Damnum Absque Injuria: literally “damage without legal wrong;” damage for

which the legal system provides no remedy. The best examples are economic activities (firing employees, taking away

another business’s customers, etc.)

F. Outrage-Intentional Infliction of Emotional Distress

Elements1) Extreme or outrageous conduct2) That intentionally or recklessly causes severe emotional distressDamages include compensation for the emotional distress and bodily harm that results.

The relationship between the parties plays a part in a finding of IIED (doctor-patient relationship, psychologist-patient). Consider Roberts where the doctor is not the plaintiff’s doctor and the court finds no IIED and Greer where the doctor was the plaintiff’s doctor and IIED did occur.

The character of the victim matters (“rough and tumble” union organizer) Truthfulness may play a part A different standard for public officials-actual malice Consider the theories of punishment-rights, deterrence

Roberts v. Saylor (1981) [pp. 74] Facts: The plaintiff undergoes 3 surgeries at a hospital. The plaintiff attempts

to bring a malpractice suit against the 1st surgeon and asks the second surgeon to help her. He refuses and states that he despises people like her. Plaintiff undergoes a 3rd unrelated surgery and right before entering the operating room the 2nd surgeon tells her he doesn’t like her. Plaintiff is frightened but suffers no bodily harm.

Holding: The plaintiff cannot sustain an action for IIED. The conduct must be outrageous meaning it goes beyond the bounds of decency.

Greer v. Medders (1985) [pp. 75] Facts: Plaintiff was recovering in the hospital after surgery. His surgeon left

him under the care of Medders. After not seeing Medders for several days, Greer phoned his secretary. Medders visited Greer and ranted at him and insulted his wife. Greer’s wife began to cry and Greer experienced episodes of uncontrollable shaking, for which he received psychiatric treatment.

Proc History: The trial ct grants SJ to Medders. Appellate court reverse SJ on the basis that Medders’ conduct may qualify as outrageous because his

statements were made to a post-operative patient under his care and his wife while the patient was still recovering.

Muratore v. M/S Scotia Prince (1988) [pp. 76] Facts: The plaintiff was a passenger on a cruise ship who did not want her

picture taken. The photographers continued to harass her. They took a picture of her backside and displayed it with a gorilla’s head superimposed where her head should be. On one occasion the photographer made the comment “Take her from the back-she likes things from the back.”

Proc History: Plaintiff sues for IIED. Trial ct finds in her favor and ct of appeals affirmed.

Pemberton v. Bethlehem Steel Corp (1986) [pp. 77] Facts: Plaintiff was a union official for Bethlehem’s employees and Bethlehem

was unhappy with his activities. Bethlehem allegedly hired a Private Investigator and sent evidence of Pemberton’s extramarital affair to his wife (causing a divorce), as well as circulated mug shots from a prior arrest.

Pemberton sues for IIED. SJ was granted to Bethlehem. Rule: When deciding whether conduct is outrageous, the court should

consider the personality of the individual to whom the misconduct is directed.

o The plaintiff was described as a “rough and tumble” union man. The information regarding the affair and conviction were true. This is not

outrageous conduct. The emotional distress must be something “that no reasonable person could

be expected to endure it.” Distinction : The character of the Plaintiff matters as well as the context of the

incident (a labor dispute is expected to be rough).

Figueiredo-Torres v. Nickel (1991) [pp. 78] Facts: Defendant was the marriage counselor for the plaintiff and his wife.

The defendant engaged in an affair with plaintiff’s wife then counseled plaintiff to seek a separation.

Proc History: Pl sues for professional negligence and IIED. Rule: Outrageous conduct may arise from abuse of a position or relationship

with another person that gives him power to affect that person’s interest. In cases where the defendant is in a peculiar position to cause emotional distress to the plaintiff, his conduct will be carefully scrutinized.

o Psychologist-patient relationship falls into this realm.o The use of his position to sabotage the relationship is evidence of

malice (insulting him, damaging his self-esteem). If the psychologist only had an affair and did not engage in the additional behavior, the court may not have found that IIED occurred.

Holding: Defendant’s behavior constituted IIED.

Hustler Magazine v. Falwell (1988) [pp. 80] Facts: the magazine featured a parody a liquor campaign describing the “first

time.” The parody featured Jerry Falwell stating that his “first time” was during a drunken rendezvous with his mother.

Proc History: Falwell sues for libel and IIED. Trial court found that libel did not occur but ruled in favor of Falwell on the IIED claim. The US S Ct reversed as unconstitutional.

Holding: Public officials cannot recover on IIED claims such as this unless the publication contained a false statement of fact made with actual malice or with reckless disregard for the truth.

Objections to IIED Tort: Constrains personal liberty (“I should be able to say what I want”) It’s a standard so it’s difficult for people to conform their behavior and

provides too much judicial discretiono There are narrow rules imposed in addition to the standards to

protect against this (public official exception, Falwell)

Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, Hohfeld Rights and duties (correlatives)

o Right: give you the power to call upon the authority of the state to get someone to take a particular course of action or refrain from doing so, or to get liability (opposite of no rights)

o Duty: an obligation to take a particular course of action or not take a particular course of action

No rights and privileges (correlatives)o No right: o Privilege: no one else can call upon the authority of the state to either

prevent you or make you take a particular course of action (opposite of duty)

Example: If you have a privilege to eat shrimp salad no one else can call upon the law to stop you. However, if someone else is trying to eat the shrimp salad as well you can’t call upon the authority of the state to stop them from doing so. You don’t have a right to the salad.

Przybyla v Przybyla, 87 Wis.2d 441 (1978)Plaintiff is suing his wife for IIED for having an abortion against his wishes and depriving him of the joy of fatherhood as well as misleading him about her intentions to have an abortion.

Rule: The court holds that abortion cannot be the grounds for IIED because it is the right of a woman to do so without the consent of her spouse and, therefore, is not outrageous conduct.

o Mrs. Prybyla has a privilege to get an abortion vis a vis the state and the husband has no right to interfere.

II. INTENTIONAL TORTS: PRIVILEGES

A. Defense of Person and Property

Katko v. Briney (1971) [pp. 85] Facts: The Briney’s owned a house used mostly for storage. There were

repeated break-ins. Mr. Briney set a trap in the bedroom so that a shotgun would fire at a person’s legs if he tried to enter the room. The gun was not visible from the outside and there was no sign posted. The plaintiff broke into he house and set off the gun; most of his right leg was removed.

Proc History: The plaintiff was convicted of petty larceny and fined $50 and paroled from a 60-day jail sentence. He brought suit against the Brineys and was given a verdict of $20,000 in actual damages and $10,000 in petty damages. Brineys appeal.

Policy: The societal value on human life and limb is greater than the interest in securing one’s land. Rest §85

Rule: There is NO privilege to use force calculated to cause death or serious bodily injury to repel threats to property, unless there is also a threat to the defendant’s personal safety. Rest §79

Rule: A property owner cannot do indirectly and by a mechanical device what he is not allowed to do in person.

Holding: The use of a mechanical device to inflict serious bodily injury on a trespasser is prohibited. Decision affirmed.

Dissent: Better rule is that owners should be able to use mechanical devices intended to repeal but not seriously injure intruders. The question of the owner’s intent should be put to the jury.

Crabtree v. Dawson (1904) [pp. 89] Dawson owned a building in which a dance and a party were being held. An

intoxicated man, Noble, attempted to enter the dance without paying and Dawson escorted him outside. After returning to the dance Dawson heard someone say “he is getting some bricks” and heard footsteps n the stairs. Believing it was Noble returning, he yelled “don’t come up here.” The person didn’t stop. As he came through the doorway Dawson hit him in the face with the butt of the musket.

Proc History: Crabtree sued for battery. Trial court found for Dawson. Rule: If the defendant believed, reasonably so, that the plaintiff was another

and that he believed it was necessary to strike this other person in order to defend against a threatened attack, and he used no more force than necessary, then he is excused on the grounds of self-defense and apparent necessity.

o Defendant must exercise the highest degree of care practicable.o Even if the defendant is mistaken, the defense holds as long as it was

reasonable.

Holding: Court of appeals reversed but said that Dawson might yet be found free from liability.

Wright v. Haffke (1972) [pp. 89] Facts: Plaintiff enters a grocery store with another. One of them knocks the

owner down and they reach into the register. Haffke shoots the plaintiff. Ruling: Verdict for the defendant; no liability. Rule: A firearm can be used to prevent the commission of a felony. The force

used must be within permissible limits (question for the jury). o Firearm use not justified to prevent minor thefts; may be justified to

prevent felonies. o Haffke was actually attacked.

Woodbridge v. Marks (1897) [pp. 90] Facts: Defendants had two vicious watchdogs chained on his property. The

chains allowed the dogs to protect the ice-house and chicken coop, but not the walkway or house. Plaintiff entered property at night in search of a man at work in the barn. Plaintiff left the walkway because he couldn’t see it in the dark and was injured by one of the dogs.

Proc History: Trial court ruled for the plaintiff and appellate court reversed. Holding: The dog was properly confined so the owner should not be liable. If

liability were to arise it would be almost impossible to keep a watchdog to guard against trespassers.

Distinction between Woodbridge and Katko: the primary function of the spring gun is to punish trespassers, the gun is silent, no warning; the primary function of a guard dog is to deter trespassers and thieves, people will usually be aware of dogs.

Hull v. Scruggs (1941) [pp. 91] Facts: Plaintiff’s dog continuously came onto defendant’s property and

sucked the eggs laid by defendant’s turkeys and hens. Defendant shot the dog, although not while the dog was in the act.

Proc History: Pl sues for value of dog. Trial ct finds for the plaintiff. Mississippi S Ct reverses.

There are certain steps that must be taken to deal with the dog. After the necessary steps have been taken and the behavior continues for a period, the owner is justified in killing the dog.

***There is a rule that when valuable livestock trespasses on your land that you are supposed to detain the animal. The rules for livestock in general are very specific by state.

Kershaw v. McKown (1916) [pp. 92] Facts: Plaintiff’s dog had been attacking defendant’s goat. Defendant killed

the dog.

When determining reasonableness of the defense, one can consider: the consequences of the proposed act to the aggressor in connection with the consequences of non-action to the defender.

o The relative value of the animals was an appropriate consideration. Ruling: Verdict for defendant. Difference between instructions:

o Instruction given: If the animals were not greatly disproportionate than no liability exists.

o Proposed instruction by Plaintiff: If the animals were not greatly disproportionate than liability does exist.

Bamford v. Turnley (1860) [pp. 94]Bramwell’s argument: In deciding whether a defendant has acted wrongfully, ask how the situation would have been handled by a single owner who was responsible both for the source of the threat and the property being threatened.

Policy: The main policy behind these rules is public safety. We want to minimize the chance that an unintended party will be hurt (e.g. ban on spring guns); however, the state still recognizes the need of property owners to protect themselves (e.g. allowance of guard dogs).

B. Private Necessity

Ploof v. Putnam (1908) [pp. 97] Facts: The defendant owned an island and a dock, which were attended to by

his servant. The plaintiff was out sailing with his family. A storm suddenly came upon them and to save his boat and family the Pl tied his boat to the Def’s dock. The servant unmoored the boat and it was driven onto the shore by the storm and destroyed. The Pl and his family were thrown into the lake and injured.

Proc Hist: Pl sues defendant for trespass (unmooring the boat) and negligence and carelessness by ignoring duty.

o A necessity defense can sometimes be a cause of action or its own separate tort.

Rule: One may sacrifice or intrude upon the personal property of another to save his life or the lives of others.

o Actions of plaintiffs were justified because the storm threatened his life and the lives of his family.

o Defendant attempts to prove that necessity did not exist by stating that there were natural objects to which the plaintiff could have moored his boat. Rejected.

o Human life is more valuable than property rights. Holding: Judgment for plaintiff affirmed. Examples of Necessity:

o A traveler on a highway that finds it suddenly obstructed can pass upon adjoining land

o Entering land to save goods in danger of being destroyed by water or fire

Rossi v. DelDuca (1962) [pp. 99] Facts: Plaintiff was chased by dog. Escaped into defendant’s field.

Defendant’s guard dog bit plaintiff. Proc History: Plaintiff sues for damages. Defendant moves for a directed

verdict on the ground that the plaintiff was a trespasser. Trial court and appellate court deny motion.

Rule: One is privileged to enter land when necessary to prevent serious harm to yourself or property. The intruder is not liable for trespass and the possessor no longer has immunity from liability in resisting the intrusion.

The court looks at whether the property owner “scared” the privileged trespasser away from the land. A fence is allowable; however, a dog that bites the trespasser may still cause liability because it causes damages and resembles an intentional tort.

Vincent v. Lake Erie Transportation Co. (1910) [pp. 100] Facts: The ship the Reynolds was unloading cargo while moored to the

plaintiff’s dock. During this time a storm grew and continued throughout the night. Navigation was suspended until the storm abated. The ship remained moored to the dock and caused $500 in damage from being thrown against the dock.

The defendants were not at fault in remaining moored to the dock. The exercised ordinary prudence and care.

The defendants are liable for the damages that resulted from their ship remaining moored to the dock.

o The defendants deliberately and by their direct efforts held the boat in such a position that the damage to the dock resulted. (They kept the ship moored at the dock and continued to replace the lines holding the ship in place.)

There is a distinction between acts attributed to God and the intervention of some act by the one sought to be held liable.

o If the ship entered the harbor during the storm and became disabled and been thrown against the plaintiff’s dock, then no liability would result.

o If the lines holding the ship to the dock had broken and the ship struck another vessel in the harbor, the no liability would result.

Holding: The defendants must compensate plaintiffs for damage.

A Theory of Strict Liability , Epstein :If the Transportation Co had owned both the boat and dock, it would have sacrificed the dock for the preservation of the boat. The action in tort in effect enables the

inured party to require the defendant to treat the loss he has inflicted on another as though it were his own. If the Transportation Co would bear the costs in cases in which it damages its own property, it should bear those costs when it damages the property of another.

Texas Midland Ry. Co. v. Geraldon (1910) [pp. 103] Facts: Plaintiff and his family went to a railroad station. They missed their

train and decided to wait for the next one, which would arrive at 5 the next morning. At 10:00 pm the family was forced to leave the station despite the fact that it was raining and the wife was vulnerable to illness, which was made known to the agent of the railroad. The family went to a boarding house 150 to 300 yards away and the wife’s clothing was soaked and she became ill. (She had no change of clothes because they were left in boxes nailed shut at the station ready to be loaded onto the train.)

Pl sued the railway company. Trial ct found for Pl and TX S Ct affirmed. Holding: It was not lawful for the agent of the railway company to force Mrs.

Geraldon outside into the rain knowing that injury to her health might result.

London Borough of Southwark v. Williams (1971) [pp. 104] Facts: A homeless family became squatters on land owned by the Boroughs.

The Boroughs brought an action to evict them and the Williams claimed necessity as a defense.

Allowing a necessity defense for homelessness or hunger would promote lawlessness.

Holding: Necessity is not allowable as a defense to trespass in the case of homelessness.

Distinguished from Texas Midland: allowances for acute necessity as opposed to chronic necessity. Allowing necessity defenses for chronic necessity (i.e. homelessness, hunger) would create a utilitarian disruption.

Transaction Costs [pp.105]Economists argue that the law treats rights as more flexible and less absolute where it is hard to enter into voluntary transactions over them. When transaction costs are too high as a practical matter, the law allows people to take each other’s entitlements and pay damages; by awarding damages, the law makes the deal for the parties that they might have made for themselves if bargaining had been feasible. Example: In Ploof, Putnam could have demanded any price from Ploof for the use of his dock because there was no time to bargain.

C. Public Necessity

Mouse’s Case (1609) [pp. 106] Facts: There were forty-seven passengers on a barge. A storm came upon

them and it was decided that they needed to throw cargo overboard or else they would drown. The ferryman threw Mouse’s casket overboard.

Holding: To prevent a public disaster, it is allowable to damage private property and no liability accrues.

o If the ferryman overloaded the boat, then he would be responsible for the lost/damaged property.

Distinction between Mouse and Lake Erie Transportation: The danger was to life as opposed to property.

Struve v. Droge (1881) [pp. 108] Facts: The landlord saw smoke outside the window of his tenant’s building.

The tenant was not home so he broke into the apartment to stop the fire, but found that there was no fire.

Proc History: The tenant sues for damages to his property. The trial court rules in favor of the defendant finding that his belief was reasonable and his actions justified. The court of appeals reversed.

Holding: If, in fact, a public necessity does not exist, a person who commits destruction is responsible for damages.

The court may be taking into account the fact that the landlord’s interest was in protecting his private property rather than a public necessity.

Rest §262 Privilege Created by Public Necessity [pp. 109]You have the privilege of committing an act that is considered a trespass or conversion if the act is [reasonably believed to be] necessary to avoid a public disaster.

Government Use of Public Necessity DefenseThe Fifth Amendment provides “nor shall private property be taken for public use, without just compensation.” Courts disagree about the application of similar state provisions in cases involving police action. Two alternative approaches:

1. Wegner v. Milwaukee Mutual Ins. Co. (1992) [pp. 110] Facts: A violent suspect entered a private home. A SWAT team threw tear

gas and grenades through the windows causing $70k in damages. Holding: The court ruled that the city must compensate the innocent third

party. Policy considerations: The risk of loss should be allocated to the

municipality, rather than on innocent citizens.2. Customer Company v. City of Sacramento (1995) [pp. 111]

Facts: A SWAT team fired tear gas inside the plaintiff’s building. The plaintiff sought damages on the basis of the eminent domain provision of CA’s constitution requiring the government to provide just compensation.

Holding: The city does not have to compensate the plaintiff; the actions were an exercise of the state’s “police power” and not eminent domain.

D. DisciplineCertain defendants have the limited privilege to use reasonable force to maintain order (i.e. parents, teachers, etc.)

Forbes v. Parsons (1839) [pp. 111] Facts: Forbes served as a cook aboard a ship. The crew alleged that Forbes

kept the galley in an unclean state and provided them with poorly cooked food. The captain, Parsons, beat him with a rope and frying pan.

Proc History: Forbes brought suit for battery. Parsons claimed he was justified by a privilege to maintain order on the ship.

Holding: The court found in favor of Parsons. There is a different standard of conduct aboard a ship. The punishments were not overly severe. The crew was dissatisfied and the captain had a need to maintain order.

Elements of Unintentional Torts1. Duty of care2. Negligence3. Causation4. Damages

III. The Negligence StandardIn a suit for negligence ask:

1) Did the defendant owe the plaintiff a duty?a. Often, the duty is taken for granted because a defendant’s obligation is

obvious because of the risks the activity creates (i.e. driving)2) Did the defendant breach that duty by failing to use reasonable care?

a. Did the defendant take reasonable precautions against the harm that occurred?

A. The Reasonable Person

Rest §238 [pp. 122]: The standard of care is that of a reasonable man in similar circumstances. There is an exception for children.

1. Mental Ability and Mental States

Williams v. Hays (1899) [pp. 122] Facts: The defendant was the captain of a ship that was caught in a storm at

sea. After 2 days the storm subsided and the captain retired to his cabin for the first time since the storm began. He took a malaria and fever remedy. The crew began having trouble steering. Two tugboats passed the ship and informed the crew that their rudder was broken. They offered to tug the boat to shore, but the captain declined. He was stumbling around in a daze. The ship crashed on shore and a life-saving boat arrived. The captain has no recollection of the events.

Proc History: The plaintiff, as a representative of the ship’s owners, brought a suit for negligence. Defendant claims that he was unaware of his actions and insane so not responsible. Trial court found for the defendant. Plaintiff appealed. Ct of Appeals reversed and demanded. Trial court found for the plaintiff. Defendant appealed. Ct of Appeals reversed and remanded.

Issue: Is insanity a defense to the plaintiff’s claim? Holding: Insanity is not a defense to negligence with certain qualifications. Opinion 1 Rule: An insane person is just as responsible for his torts as a sane person,

except for those torts where malice or intention is a necessary element.o Based upon the theory of as between two innocents; the innocent who

caused the act must bear the loss. o Encourages relatives of the insane to maintain control and

discourages imposters. Rule: If in your efforts to uphold a duty of care, you become insane then

liability does not fall on you.o Would not apply in the case of a doctor or lawyer. In the case at and,

there was no way for the captain to avoid these duties. A doctor or lawyer can prevent any chance of insanity by going to sleep.

If the defendant had become insane during the course of his efforts to save the vessel, there would have been a different case.

Opinion 2 Rule: Insanity is not a defense to negligence. Qualifications: The law intends what is agreeable to reason. Impossibility is

an excuse in law, and there is no obligation to perform impossible things.o The captain spent 3 days on duty and 48 hours on deck during the

storm. There is a limit to physical and mental endurance.

Vaughan v. Menlove (1837) [pp. 125] Facts: Defendant built a haystack. Plaintiff, his neighbor, warned that this

was a fire hazard. The defendant built a chimney through the haystack. The stack burst into flames and the fire spread to the defendant’s barn and stables and the plaintiff’s cottages.

Proc History: Plaintiff sues for negligence. Trial court finds for plaintiff. Defendant appeals on the basis of an incorrect jury instruction (the defendant had to use reasonable caution as a prudent person would have exercised). He states that he should not be punished for not being the smartest man.

Holding: The trial court instructed the jury correctly. Reasonable Person Standard: the standard is the caution a man of ordinary prudence would observe. The jury should not account for the judgment of each individual.

Lynch v. Rosenthal (1965) [pp. 126] Facts: Lynch was a man with the mental capacity of a ten year-old. He lived

on the defendant’s farm and was treated as part of the family. Lynch was asked to help the defendant with the corn picking. Lynch stumbled into the picker and his right arm was seriously injured.

Proc History: Lynch brought a suit for negligence in the failure to warn him of the danger of coming too close to the picker. The defendant claims contributory negligence because the danger was obvious.

Analysis: An expert testified that Lynch did not have the mental capacity to appreciate the danger of moving machinery, but could have understood a clear warning or direction to stay away. Trial ct found for Lynch. Def appealed.

Holding: The plaintiff was not contributorily negligent. The defendant knew about the plaintiff’s mental capacity and failed to give a warning. The basis of the negligence claim was that the person was mentally impaired. To recognize a contributory negligence defense on the reasonable person basis would be unjust. This applies specifically because the plaintiff is being accused of contributory negligence.

Contributory Negligence (Defense)The doctrine states that a plaintiff’s whose own carelessness contributed to their injuries can collect nothing from a defendant. This applies even if the defendant’s negligence was clear and the plaintiff was only slightly at fault.

Last Clear Chance Doctrine : A plaintiff was not barred from recovery by his own negligence if the defendant had the last good opportunity to avoid the accident through the use of due care and failed to do so.

o Usually applies where the plaintiff was helpless or inattentive and the defendant became aware of the danger, but did not prevent it.

Comparative Negligence : The doctrine reduces recoveries by negligent plaintiffs in proportion to their fault, but does not prevent them from recovering altogether. Adopted in most states.

o Modified : Plaintiffs can only collect if they are not more than 50% responsible.

o Pure : Plaintiffs who are 90% to blame can still bring suit to collect the remaining 10%.

2. Physical Infirmities

Kerr v. Connecticut Co. (1928) [pp. 133] Facts: William Kerr was a man with poor hearing. He was walking home on a

road alongside which ran a trolley line. The trolley driver saw Kerr and sounded the gong, but Kerr did not heed. The driver applied his brakes, but it was too late. Kerr died from injuries.

Proc History: Kerr’s administratrix sued the trolley company. Trial court found no negligence on the part of the trolley company. Plaintiff appealed and CT S CT affirmed.

Holding: The plaintiff was contributorily negligent. The law required the decedent to exercise the care for his safety that a reasonably prudent man would exercise under similar circumstances. He had to take precautions that a reasonably prudent deaf man would exercise.

Davis v. Feinstein (1952) [pp. 134]

Facts: A blind man was walking down the street using a cane to touch the ground in front of him. He fell through an open cellar door in front of defendant’s furniture shop.

Holding: He was not contributorily negligent. A blind man is bound to use due care under the circumstances, which he did by using the cane. He is not to discover everything that a person of normal vision would discover. The court holds him to the standard of a reasonable blind man.

The reasonable person standard makes an exception for physical impairments, where it will not make an exception for mental impairments. The standard then becomes the reasonable person with this physical impairment.

A person with a physical impairment can compensate by taking certain precautions.

There is a clear idea of the capacity of a person with a physical impairment, whereas, no such clear idea or standard exists for a person with a mental impairment.

Proving a physical impairment is easier than proving most mental impairments.

3. Age

Purtle v. Shelton (1971) [pp. 134] Facts: Plaintiff (16) and defendant (17) were hunting companions.

Defendant accidentally shot plaintiff. Proc History: Plaintiff found to be contributorily negligent. Plaintiff appeals.

Plaintiff contends that the jury should have been instructed that the defendant was required to use the degree of care of an adult, rather than a minor of his age and intelligence.

Rule: If a minor is to be held to an adult standard of care he must be engaging in an activity that is (a) dangerous to others and (b) normally engaged in only by adults. (Rest)

o This rule applies to driving. Holding: Deer hunting is not an activity that is normally engaged in by adults

only. Therefore, a minor should not be held to an adult standard of care. Burden is placed on society to take extra precautions to protect children. It is difficult to deter children from making poor decisions; it would be wrong

to punish them for engaging in behavior that is characteristic of children.

Roberts v. Ring (1919) [pp. 137] Facts: The plaintiff’s 7 year-old son ran across a street and was hit by a car

driven by a 77 year-old man with defective sight and hearing. The defendant was traveling at four or five miles per hour and did not see the boy until he was 5 feet away; he could not stop.

Proc History: Trial ct found for the defendant. Plaintiff appealed. Holding: Jury was improperly instructed. The court was correct in

instructing the jury to make allowances for the youth of the boy. However,

the court was incorrect in allowing the jury to take into account defendant’s age and infirmities.

Exceptions for youth, but not for age infirmities.

Dunn v. Teti (1979) [pp. 139] Facts: Defendant swung a stick negligently and injured plaintiff. Both were 6

years old. Proc History: Trial court gave SJ to the defendant and ct of appeals affirmed. Rule: A child is held to the standard of care that other minors of like age,

experience, capacity, and development would exercise under similar circumstances.

1) Minors under the age of 7 are presumed incapable of negligence.2) Minors between 7 and 14 are presumed incapable of negligence, but this

presumption is rebuttable and weakens as the child grows older.3) Minors over 14 are presumed capable of negligence; the burden to prove

incapacity is on the minor.

B. Risks and Precautions

United States v. Carroll Towing Co (1947) [pp. 140] Facts: The Pennsylvania Railroad Co chartered a barge, the Anna C, and a

bargee from the Conners Co for one day. The Anna C was loaded with flour. The Grace Line Co sent the Carroll to pick up another barge and the crew untied the Anna C’s lines and failed to retie them. The Anna C broke away from the pier and bumped into a tanker who punched a hole in the Anna. The ship eventually sank. No one was aboard to discover the leak.

Proc Hist: Conners sued Carroll C and Grace Line. The court determined that Grace Line was negligent and partially responsible.

Issue: Was the Conners Co negligent because its bargee was not aboard the Anna C at the critical moment? If Conners was also negligent then they will have to cover a third of the damages.

The owner’s duty to provide against resulting injuries is based upon: (1) probability the boat will break away-P, (2) the gravity of the injury-L, (3) the burden of adequate precautions-B.

o Liability depends on if B<LPo This simulates how a reasonable person should act

Holding: The fact that the boat was properly tied up is not always an excuse to a bargee’s absence during working hours. It was reasonable to expect that due to the busy time and lines being untied and retied, that the work might not be done properly. It was a fair requirement that Conners have a bargee aboard during working hours. The Conners Co. is liable and can only recover two-thirds.

This decision encourages parties to take precautionary measures to minimize the harm that could occur.

The Hand FormulaThe owner’s duty to provide against resulting injuries is based upon 3 elements:

(1) probability the boat will break away, P(2) the gravity of the injury, L(3) the burden of adequate precautions, B

Liability depends on if B<LP.This is interpreted as an economic formula-putting dollar values on B and L.

Example: If the defendant fails to take the precaution of having a bargee on its barge, there is a 10% chance that during the coming year and accident will occur (P=0.10). The total cost of the accident (the typical cost of a barge) will be $100,000 (L=100,000). LP=$10,000, the expected cost of an accident. B is the cost of having a bargee. If this cost is $5,000 then it is negligent to not have a bargee. If it is $30,000 to have one, it is not negligent to do without one. This avoids economic waste.

The Hand formula is unrealistic because it is impossible to assign clear numbers for each variable (probability statistics usually aren’t available and vary with the severity of the injury, injuries are always a variable). It is possible to compare the relative relationships of each element.

Hand formula is rarely given to juries. Sometimes used in the ct of appeals when reviewing jury decisions. Most courts use it if the appeal is couched in cot-benefit terns or ignore it under the reasonable person standard.

Consider marginal costs and marginal benefits [pp. 147]

Adams v. Bullock (1919) [pp. 144] Facts: The plaintiff, a 12 yr-old boy, crossed a bridge that ran across a

trolley line. The boy was swinging a wire that came in contact with the trolley wire and the boy was burned and shocked. There was a parapet and the wire was placed 4 ft below the top of the parapet.

Proc History: Trial ct found for the plaintiff. Def appeals on the basis of insufficient evidence.

Ruling: Trial ct erred. Defendant not liable. Ordinary caution could not have prevented this accident.

The defendant exercised reasonable precautions to minimize danger.o The trolley wire was placed so that no one bending over the wall

could reach it. The defendant was lawful in using an overhead trolley. He cannot be

negligent for using that system and not another.

Bolton v. Stone (1951) [pp. 145] Facts: Plaintiff was hit by a ball from Lord’s Cricket Ground while standing on

her property, which was adjacent to the ground and enclosed by a 7-foot fence. The hit covered 20 yards.

Proc History: Plaintiff sued owners for negligence. Trial ct awarded judgment for defendants. Ct. of Appeals reversed. House of Lords reversed again.

The chance of being struck by a ball was small enough so that a reasonable man would have refrained from taking precautions against it.

Test: Does likelihood of injury warrant taking precautions?

Eckert v. Long Island R. Co. (1871) [pp. 148] Facts: Decedent pushed a child from in front of an oncoming train and was

hit and killed. Proc History: Plaintiff sues for negligence on the basis of the train’s speed

and no warning whistle. Trial ct awarded judgment for the plaintiff. Defendant appealed citing contributory negligence.

If decedent for his own purposes jumped in front of the train, he would have been contributorily negligent. Ordinarily, placing oneself in a position of danger is negligence.

The decedent owed a duty to the child to attempt to save him if he believed he could do so reasonably. He had to make a split second decision.

Negligence implies a wrongful act. Decedent’s act was not wrong. The law’s regard for human life will not impute negligence on someone

attempting to save human life unless done so rashly. If the railroad had the option, they would have paid the decedent in advance

to try to save the child. There was a chance that he could save the kid and not die. If he didn’t the child would surely die.

Holding: judgment for plaintiff affirmed.

The Margharita (1905) [pp. 150] Facts: During a sea voyage, Martinez fell overboard and a portion of his leg

was bitten off by a shark. The nearest port where a surgeon was located would have caused a detour of 3 weeks. The boat did not take the detour and continued on its journey, which took 3 mos. Martinez had an additional portion of his leg amputated and he sued for negligence.

Proc History: Trial ct gave judgment to Martinez. Ct of appeals reversed. The acute stage of his condition concluded before the 3 week period expired.

The only injury the plaintiff suffered was prolonged suffering; no additional disability resulted.

A ship master is expected to exercise the reasonable judgment of a seaman. He can weigh damage to humans against damage to cargo.

o The detour would have been for an indefinite time. The ship owners would have sustained heavy losses.

A person entering a dangerous employment assumes the risks of that employment.

o Seaman assumes risk of accidents.

Rest §3 Negligence [pp. 155]: Reasonable care is determined by factors such as likelihood the harm will occur, severity of harm, and burden to take precautions. Similar to the Hand formula.

C. Custom and the Problem of Medical Malpractice

The T.J. Hooper (1932) [pp. 158] Facts: The Hooper and Montrose, tugboats, lost several coal barges in a storm

while towing them. Proc History: The tugboats were ruled unseaworthy-meaning the company

was negligent-for failing to have working radios, which would have given them news of the approaching storm. The company appealed.

Custom can be used to determine reasonable care, but is not determinate. o Only a small percentage of tugboats were equipped with radios.

There are precautions so imperative that even their universal disregard will not justify an omission.

Holding: Tugboats were negligent because if they were properly equipped with radios they could have avoided some of the damage.

Ellis v. Louisville & Nashville Ry. (1952) [pp. 159] Facts: plaintiff worked on mechanisms that deposited sand onto railroad

tracks. During his 25 yrs of work he routinely breathed in dust. Plaintiff develops silicosis and sues company for negligence by failing to issue him a mask.

Proc History: Trial ct ruled for defendant. Court of appeals affirmed. Test according to Am Jur. Negligence §34: The test of negligence with respect

to instrumentalities, methods, etc. is the ordinary custom and usage.o People should be able to rely on common practice.o If everyone uses the same practice then it is reasonable.

Defendant claims that the general practice among railroad companies was not to issue masks.

MacDougall v. Pennsylvania Power and Light Co. (1933) [pp. 160] Facts: The power company maintained a fuse box on a pole at the edge of

Tiddy’s roof. It conducted electricity in wet weather. A plumber went onto the roof to make repairs and was electrocuted. Plaintiff sues power company for negligence in placing box with a high voltage so close to the roof.

Proc History: Trial ct found for plaintiff. Defendant appealed on the basis of ordinary custom. Appellate court affirmed.

The conduct was inherently dangerous. Usage doesn’t matter. Care to be exercised proportionate with severity of possible harm.

Customs and usage are only considerations in reasonable person test.

Rodi Yachts, Inc. v. National Marine, Inc. (1993) [pp. 161] Facts: TDI owned dock. Natl Marine sent a boat there to be unloaded. The

boat became untied from the dock before being unloaded and crashed into 2 other boats. Owners of damaged property sued Natl Marine who impleaded TDI.

Issue: What is the extent to which Natl Marine and TDI were each negligent? Proc History: Trial court found Natl 2/3 liable and TDI 1/3 liable. Ct of

appeals reversed and remanded stating that the trial ct did not make sufficient findings.

In contractual relations the market fixes the standard of care by the preferences of the customer and price; it is the function of tort law to enforce this standard and protect customers’ reasonable expectations.

o Natl Marine argues that TDI increased the risk of the accident by not conducting a dock inspection, in accordance with custom.

The court wishes to know whether TDI abided by the above custom and whether Natl followed custom by tying the boat properly. This will determine negligence.

Brune v. Belinkoff (1968) [pp. 164] Facts: Plaintiff was administered 8 mg of pontocaine before her delivery.

This was the customary dosage in New Bedford. In Boston the customary dosage was 5 mg. Plaintiff suffered numbness and weakness in one leg. She sued for negligence.

Proc History: Trial court ruled for defendant. They applied the locality rule and used the reasonable doctor standard of doctors in New Bedford. Appellate court reversed.

Locality rule is outdated. The proper standard is the reasonable care and skill of the average qualified practitioner, taking into account advances in the profession.

o The standard allows for the consideration of the resources available and the type of community.

o This eliminated the need for an expert witness from the same community; this was a problem because it was difficult to find a doctor who was willing to testify against another doctor in the same community.

In medical malpractice cases, custom is decisive. In most medical malpractice cases, you need expert testimony to establish

the standard of care.

Gambill v. Stroud (1976 Arkansas) [pp. 166] Facts: Defendant was a surgeon. Plaintiff’s surgery was abandoned because

of complications with anesthesia. She suffered cardiac arrest and brain damage.

Modified Locality Rule: The standard is that of persons engaged in a similar practice in similar localities. Considerations: geography, size, character of the community.

o The opportunities available to doctors in small towns are not the same available to doctors in large cities.

Johnson v. Wills Memorial Hospital (1986) [pp. 167]

Facts: Decedent was a patient in a hospital. He began behaving strangely and had to be sedated. An orderly was stationed outside his room, but decedent escaped through the window. He died of hypothermia presumably.

Ruling for defendant based on locality rule. The locality rule should be used when the adequacy of a hospital’s facilities

or services is questioned.o Security is a service limited by small town resources.

Cook v. Irion (1966) [pp. 168] Facts: Plaintiff tripped and fell. She brought a negligence suit. There were 3

possible parties to sue and her lawyer only filed suit against one. Plaintiff lost her suit and then sued her lawyer for malpractice.

Proc History: Trial ct gave verdict to defendant and ct of appeals affirmed. Locality is a factor in determining legal malpractice.

o The probable make-up of the jury is an important factor when considering whom to sue. This is dependent upon locality.

D. Negligence Per Se

The court determines that the defendant has violated some sort of rule, either statutory or judge-made, and that the violation establishes the defendant’s negligence as a matter of law.

1. Violations of Criminal Statutes

Martin v. Herzog (1920) [pp. 170] Facts: Plaintiff and her husband were traveling in a buggy. Defendant’s car

was rounding a curve and struck the buggy. Plaintiff and her husband were thrown from the car. The husband was killed.

Proc History: Defendant is charged with negligence for not keeping to the right of the highway. Plaintiff’s intestate is charged with negligence for failure to drive with lights. Trial ct found the defendant negligent. Appellate court reversed.

Trial court gave jury the instruction that the plaintiff’s absence of lights did not necessarily make him negligent, but was a consideration. This was erroneous.

The violation of a highway statute is negligence. This is not a decision for the jury.

o Highway regulations are meant to protect al drivers. Failing to abide by these rules is negligence.

The proper instruction was that the omission of the light was prima facie evidence of contributory negligence i.e. it was sufficient in itself unless its probative force was overcome.

Negligence does not bar recovery unless the negligence was the cause or a contributing cause of the accident. The cause of the accident was the failure of the defendant to see the buggy. The plaintiff must prove that the omission of the light was not the cause by showing that other lights illuminated the area.

Holding: Jury instruction was erroneous. A highway violation is per se negligence. New trial.

Tedla v. Ellman (1939) [pp. 172] Facts: Plaintiff and her brother were walking along a highway at 6 pm. It was

already dark and the brother carried a lantern. There were no footpaths on either side of the highway. The defendant struck them with the car and killed the plaintiff’s brother. Plaintiff sues to recover for her injuries.

Plaintiff and her brother were in violation of a statute regarding pedestrians requiring them to keep to the left of the centerline. At trial, plaintiff introduced evidence that the side of the road they were walking on was much safer due to less traffic; trial ct found for plaintiff. Ct of appeals affirmed.

Exceptions can be made to a general rule in the face of unusual conditions.o Heavy traffic on one side of the road creates an exception to the rule

requiring plaintiffs to walk on the left side.

Tingle v. Chicago (1882) [pp. 174] Facts: Defendant’s train ran over plaintiff’s cow on a Sunday. There was a

state law against operating trains on Sunday. Proc History: Trial ct gave judgment to the plaintiff. Iowa Supreme Ct

reversed. The train was not operated negligently. The operation of the train was not

the proximate cause of the accident. Even when a statute is violated, you only get per se negligence if the harm

that was caused was the kind that the statute was meant to protect.

Rest §286 Illustration 5There is a law requiring railroads to fence their tracks to prevent animals from being hit by the trains. Railroad A fails to fence its tracks. 2 cows wander onto the track. One cow is hit by a train; the other die from poisonous weeds growing beside the tracks. A is liable for the cow that was hit, but not the other cow.

White v. Levarn (1918) [pp. 174] Facts: Plaintiff and defendant went squirrel hunting on a Sunday. Defendant

accidentally shot and injured the plaintiff. Plaintiff sued on the theory that hunting on Sunday was illegal.

Proc History: Trial ct gave judgment to defendant. VT S CT reversed. Holding: Judgment for plaintiff. The injury was the result of an unlawful

voluntary act by the defendant. He is responsible for trespass.

Contributory negligence is not a defense to an action for trespass based on the idea that consent is not a justification for an assault, since the state forbids it on public grounds.

Selger v. Steven Brothers, Inc (1990) [pp. 176] Facts: Defendant owned a store. Dog excrement often accumulated on the

sidewalk in front of the store. He usually directed employees to clean it up each morning. One morning before doing so, the plaintiff fell on the sidewalk and required extensive surgeries (she already had a hip implant).

Proc History: Plaintiff sued for negligence on the basis of an LA ordinance that required store owners to keep the sidewalks clean. Trial ct found defendant guilty-per se negligence for violating ordinance. Ct of appeals reversed.

The ordinance imposed a duty to the municipality and did not create a standard of care toward pedestrians.

o Similar result when pedestrians sue when they slip on snow or ice.o The legislature did not intend to create a private right of action under

this ordinance or a case for per se negligence.o The plaintiff can use the statute as evidence to establish negligence,

although per se negligence is not appropriate.

Rest §288A Comment f. Knowledge: Where the actor neither knows nor should know of any occasion or necessity for action in compliance with the legislation or regulation, his violation of it will ordinarily be excused.Illustration: A is driving and his rear light bulb goes out. B, approaching from the rear, hits A. A is not liable on basis of violation of the statute.

Sparkman v. Maxwell (1975) [pp. 177] Facts: Automobile accident in which the defendant attempted a left turn in

front of the plaintiff (they were traveling in opposite directions). The plaintiff had a green light; defendant had a red arrow. This was the first time the red arrow had been used in Texas.

Proc History: Jury found defendant not negligent. Plaintiff sought JMOL on the basis of negligence per se.

The statute does not provide a mistake of the law exception, rather it provides a mistake of fact provision (i.e. you don’t know your tail light is out).

Vesely v. Sager (1971) [pp. 178] Facts: Defendant owned a lodge. The Lodge served one of its patrons several

alcoholic beverages. The patron left the lodge and crashed into the plaintiff. Proc History: Plaintiff sues lodge owner for negligence per se based on CA

ordinance making it illegal to serve alcohol to an obviously intoxicated person. Trial ct dismissed complaint. CA S Ct reversed.

The ordinance was meant to protect these types of occurrences. The victim was a member of the protected class under this statute. If it is proved that the defendant violated the statute and that violation was the proximate cause of plaintiff’s injuries; defendant is presumed negligent.

CA enacted Evidence Code §669, which promotes a legislative policy of punishing these sorts of violations.

***The legislature then enacted a statute protecting business owners from civil liability to injured parties, such as in Vesely. They eliminated the private cause of action under the ordinance.

Brown v. Shyne (1926) [pp. 180] Facts: Plaintiff sought treatment from a chiropractor. She later suffered from

numbness in her arms and eventually paralysis. Proc History: Pl sues for negligent treatment and negligence per se on the

basis of practicing without a license. Trial ct found for plaintiff. Holding: Jury instruction was erroneous. Defendant could be held liable only

if found that his treatment was negligently rendered, regardless of practicing without a license.

o The license requirement was meant to protect against risk of injury from unskilled or careless practitioners. To be liable, plaintiff’s injuries must have been caused by lack of skill or carelessness.

o The lack of license did not cause the injury. If the rationale in Vesley is applied, then this case ruling may be wrong. The

patient is a member of the protected class-the public. However, the court seems to place a strong emphasis on causation.

Exceptions to Per Se Negligence:1) Tedla, even if you violate a criminal statute, if it was reasonable to do so (it

would’ve been dangerous to comply), then it takes it out of per se category (meaning the question of neg isn’t assumed and goes to the jury).

2) Tingle, the statute needs to be designed to prevent the kind of injury that arose

3) Selger, The action that violates the statute won’t be neg per se if the injured party isn’t of the class of ppl that the statute was designed to protect (or the interest is n’t the same)

4) Mistake in fact (you don’t know your tail-light is out, you don’t know what a red arrow means). If you don’t know about the need to take an action to put yourself in compliance, ex. you don’t know your tail light is out (be careful btw line of mistake of fact/law…the line gets blurry).

5) Legislative Intent: did the legislature mean to create a per se negligence rule for this situation (Selger-dog excrement case)

E. Res Ipsa Loquitur

A doctrine used to establish a defendant’s negligence in cases where an accident is obviously the result of defendant’s actions. It literally means “the thing speaks for itself.”

Bryne v. Boadle (1863) [pp. 190] Facts: Plaintiff walked in front of defendant’s premises and a barrel of flour

fell on his head. The defendant had machinery over the window for lowering barrels.

Holding: The occurrence of the accident is prima facie evidence of negligence. The defendant must disprove this presumption.

When someone has a duty or control over an object that causes an accident, they are prima facie responsible.

o The defendant is in a better position to know whether negligence was the cause.

o The accident doesn’t normally occur without negligence.

Rationale for Doctrine:1. The accident very likely resulted from negligence. 2. The parties don’t have the same access to evidence bearing on how the

accident occurred.

Combustion Engineering Co. v. Hunsberger (1936) [pp. 192] Facts: Hunsberger was a workman on a project rebuilding a boiler room.

One of the other workers was attempting to hammer a metal wedge 30 feet above and the wedge fell onto the plaintiff.

Holding: The evidence of defendant’s negligence was insufficient to support the verdict.

Tools and other objects, although handled with ordinary care, do fall in the course of work. Therefore, a particular fall cannot be proof of negligence.

Distinction: When objects drop on highways it is presumed that the dropping results from negligence (lack of requisite precautions to keep them off). It is not an ordinary occurrence for objects to fall on a highway.

Larson v. St. Francis Hotel (1948) [pp. 193] Facts: The plaintiff was walking on a sidewalk when a chair fell onto her

head. The court inferred that the chair fell from a window of the St. Francis Hotel. Plaintiff rests on doctrine of res ipsa loquitur.

Holding: Court finds for the defendant. The hotel was not in exclusive control of its furniture; its guests were.

Test/Elements of Res Ipsa Loquitur: (1) there was an accident, (2) the thing which caused the accident was under the exclusive control of the defendant and (3) if ordinary care was used the accident would not have occurred.

Res ipsa loquitur cannot apply when the accident can be attributed to one of several causes, for some of which the defendant is not responsible.

It would be very expensive for the hotel to prevent these types of accidents. The court is implicitly using the Hand formula-weighing the costs and benefits.

Brauner v. Peterson (1976) [pp. 195] Facts: the plaintiff drove his car into the defendant’s black angus cow, which

had strayed onto the highway. The plaintiff produced no evidence showing how the cow escaped.

Holding: Evidence insufficient to find for plaintiff. A cow can escape on its own. This is not a situation where they want to assume negligence. The court recognizes that sometimes cows escape-they are not trying to reduce the number of occurrences to zero.

Guthrie v. Powell (1955) [pp. 195] Facts: Defendants had a building at a county fair. They kept merchandise on

the first floor and livestock on the second floor. Plaintiff was on the first floor when a cow fell through the roof onto her.

Holding: This was an appropriate case for res ipsa loquitur. The court reasons that the optimal number of cows falling through roofs is zero-this shouldn’t happen.

Wilson v. Stillwill (1981) [pp. 196] Facts: The defendant performed surgery on the plaintiff’s arm. His arm

became infected and then paralyzed. Holding: directed verdict for defendant. The mere occurrence of an infection

does not imply negligence just on the basis that an infection is rare.

Judson v. Giant Power Co. (1895) [pp. 199] Facts: Plaintiff’s property was next to a series of factories owned by the

defendant. The defendant manufactured dynamite using nitroglycerine. There was an explosion that damaged the plaintiff’s property. All witnesses were killed in the explosion.

Proc History: Plaintiff sues for negligence using the doctrine of res ipsa loquitur. Trial ct awards damages. Appellate court finds that a finding of negligence is appropriate.

Holding: There is no doubt that the cause of the explosion was due to a nitroglycerine explosion in a factory. Nitroglycerine explosions do not occur in the normal course of events. A finding of negligence is appropriate.

o There are no witnesses to the event.o The defendant cannot present another explanation for the explosion

to rebut the presumption of negligence.o According to experts, if the correct manufacturing and handling was

used, an explosion would not have occurred.o The courts have found railroad companies liable for fires escaping

from locomotives. More evidence in this case for negligence.

If the court didn’t reach this holding then in no cases where explosions occurred and evidence was destroyed could defendants be held liable.

Haasman v. Pacific Alaska Air Express (1951) [pp. 202] Facts: Plaintiff’s decedents were passengers on a plane that vanished in

transit. There were no adverse weather conditions. No trace of the plane or passengers was discovered. Plaintiffs sued airline for negligence based on res ipsa loquitur.

Ruling: Judgment for plaintiffs. Equality of Knowledge v. Equality of Ignorance : Equality of knowledge

precludes the use of res ipsa loquitur. Equality of ignorance does not preclude its use.

o The defendants have no knowledge of the cause of the loss of the plane superior to the knowledge of the plaintiffs.

o The purpose of the doctrine is to supply a fact, defendant’s negligence, in the causal chain, which the plaintiff cannot know and cannot prove to have existed.

Walston v. Lambersten (1965) [pp. 203] Facts: Plaintiff’s decedent was a crewmember on a fishing boat. The boat

sank and the crew drowned. There were no adverse weather conditions and the cause of sinking was not discovered. The boat had a large live crab tank.

Proc History: Plaintiff sued boat owners for negligence claiming the boat was unseaworthy due to the crab tank. Plaintiff also sued using doctrine of res ipsa loquitur.

Holding: Evidence insufficient to support a verdict of negligence on either ground.

The defendants alleged to have used due care to install the tank. Plaintiff can only invoke res ipsa loquitur if the plaintiff establishes that the

vessel was unseaworthy at the time of its departure.

Archibeque v. Homrich (1975) [pp. 204] Facts: Perkins was driving from Idaho to Texas. He picked up a hitchhiker

who agreed to help him with driving and notified his family of this. 3 days later the car was discovered at the bottom of a gully and both men were dead. The hitchhiker was in the drivers seat. No witnesses. Police investigation indicated that driver could have fallen asleep and suddenly swerved when he awoke. Hitchhiker’s family says that there are a number of other causes.

Proc History: Perkins’ family sued the hitchhiker’s estate for negligence. Holding: ???

Technology TrendsAn increase in technology causes an increase in safety and an increase in compliance procedures. Therefore, the more technology and safety increase, the more chances

there are for compliance violations and the more cases there are for res ipsa loquitur.

Ybarra v. Spangard (1944) [pp. 206] Facts: Plaintiff went into the hospital to have an appendectomy. Plaintiff was

given anesthetic. When he awoke he experienced pain in his right arm, which grew worse. He suffered from diminished sensation, atrophy, and wasting away of the muscles, which was confirmed by x-rays. In the opinion of one doctor, this was caused by trauma or injury by pressure applied between his right shoulder and neck. A second opinion cited traumatic origin as well.

Proc History: Plaintiff sued all people involved in his surgery and treatment for negligence. Trial court ruled for defendants. Plaintiff appeals on basis of res ipsa loquitur.

Three elements of res ipsa loquitur: (1) accident that does not ordinarily occur in the absence of negligence, (2) caused by an instrument in the exclusive control of defendant, (3) not due to voluntary action or contribution of plaintiff.

Purpose of rule to shift burden of producing evidence to party charged when plaintiff does not have access to information.

o Applied too strictly. Eliminated from a lot of cases where it is most important that it applies.

An unconscious person has no access to information; he must rely on doctors and nurses to provide him with information. A clear case for the application of res ipsa loquitur. No other means of recovery in cases like this.

There is a distinct injury to a healthy part of the body not subject to treatmentraises the inference of negligence.

Although several people had control over the instrumentality at one point or another, the doctrine should not be precluded. The defendants have the burden of explanation. Given that the plaintiff was unconscious, it would be unreasonable to require him to identify a single defendant.

It is not necessary for the plaintiff to identify the exact instrumentality; plaintiff has identified injury from an external source.

Holding: Where a plaintiff receives unusual injuries (to a part of your body that was healthy, wasn’t being treated, and wasn’t covered by the operation) while unconscious and undergoing medical treatment, any defendants with control over his body or instrumentalities that might have caused the injuries may be called upon to meet the inference of negligence.

o Fear of a conspiracy of silence among the practitioners. This is a means to regulate them.

Wolf v. American Tract Society (1900) [p. 211] Facts: Wolf was delivering pipe to a building under construction. While

outside a brick fell on his head. There was no evidence of who dropped the brick or where it came from.

Proc History: Wolf sued 2 contractors. Complaint dismissed. There are 19 contractors all independent from each other. There was no

reason to single out these 2 contractors. Defendants can’t be identified; better to not address the injury than to punish

innocent people.

Bond v. Otis Elevator Company (1965) [pp. 212] Facts: The plaintiff was in an elevator when it went into a free fall. She

injured her ankle. Proc History: Plaintiff sued the building owner and the elevator company.

The finding of liability for both defendants on the sole basis of res ipsa loquitur was affirmed.

The parties had joint control of the elevator (owner-possession, Otis-maintenance). Elevators are complex machines; the parties were in a better position to know the cause of the accident than the plaintiff.

Actiesselskabet Ingrid v. Central R. Co. of New Jersey (1914) [pp. 213] Facts: DuPont hired a crew managed by Healing to move dynamite from a

railroad car onto a ship (owned by Healing). The dynamite exploded during transfer and demolished the boat and damaged another ship, the Ingrid.

Proc History: The owners of the Ingrid sued DuPont, the railroad, and Healing on the basis of res ipsa loquitur. Complaint dismissed.

The accident may have been caused by the negligence of several people other than defendants. Each theory is as probable as another. No recovery on basis of res ipsa loquitur.

Samson v. Riesing (1974) [pp. 214] Facts: The plaintiff attended a luncheon and ate turkey salad. She later

suffered from salmonella poisoning and suffered permanent injuries. 9 women participated in preparing the salad, each at their separate homes. It was impossible to tell which turkey contaminated the batch.

Proc History: Plaintiff sued all 9 women for negligence on basis of res ipsa loquitur.

Holding: ???

IV. Strict Liability

A. Liability for Animals

Owners of ferocious beasts are strictly liable for damage their animals cause to others.

Behrens v. Bertram Mills Circus, Ltd. (1957) [pp. 394] Facts: Plaintiffs had a booth in defendants’ circus. Plaintiffs’ manager sold

tickets at the booth. One day he brought his dog and tied him to the booth, although forbidden to do so. As the elephants were walking by, the dog

began barking and caused the elephants to storm the booth and injure plaintiffs.

Rule: Anyone who keeps an animal with knowledge (scienter retinuit) of its tendency to do harm is strictly liable for its damage if it escapes. Owner has an absolute duty to confine or control it.

o Animals Ferae naturae (wild animals): Scienter need not be proven. All animals that are not by nature harmless (i.e. rabbits) or domesticated (i.e. horses) are presumed to have this tendency.

o Animals mansuetae naturae: Presumed to be harmless until they have manifested vicious tendencies. After manifestation, they are moved into the first class.

o Does not take into account an animals training; judgment based on characteristics of species.

o Whether an animal is ferae naturae or mansuetae naturae is a question of law to be decided by a judge.

Plaintiffs sue for strict liability. Defendants argue that the elephant was trained and, therefore, not ferae naturae. Defendant also notes that this was a Burmese elephant, a tamer breed. The court rejects these exceptions. It does not want to dilute the rule and create a fact-intensive issue.

Defendants claim the elephant’s actions were out of fright and not savage so the rule shouldn’t apply. Court rejects this argument.

Distinction between animals that are ferae nature by genus and those which become so by manifestation: in the case of the former, it is assumed that whenever they get out of control they are bound to do injury; the later it is assumed they will do injury only to the extent of which they previously manifested.

o Rationale is that undomesticated animals are inherently dangerous. Holding: The defendants are liable for any injury done while the animal was

out of control. There must be a failure of control.

Strict liability is often imposed upon acts that do not involve reciprocal harm. For example, driving is risky for all parties so a negligence standard is applied. However, owning an elephant poses a harm to your neighbor while the neighbor doesn’t impose any harm to you-strict liability is imposed. Fairness aspect.

When you impose strict liability upon one party, you lessen the incentive for the other party to take precautionary measures. (There was a rule that banned dogs from the area, but the manager ignored that rule and liability is still imposed when harm occurs.

Earl v. Van Alstine (1850) [pp. 398] Facts: Defendant live near a public highway. He kept 15 beehives in his yard.

The plaintiff was driving his horses by when the bees attacked. One horse died and another was injured.

Ruling: Defendant is not liable for damages. Rule: If a man has a domestic animal that is necessary to the existence of man,

no action is maintainable without proof of knowledge. Issue 1 (strict liability): Are bees considered animals ferae naturae?

o No, bees are almost as domesticated as cows; they have a utility to the human race; and the occurrence of serious injury from an attack is rare.

Issue 2 (negligence): Does the keeping of bees so near the highway subject the defendant to liability?

o No, the bees were kept there for 8 or 9 years and never caused a problem.

Holding: Bees are not so dangerous that strict liability will be imposed. The social value of owning elephants is important. The “one bite” rule will be applied. Since there was no previous indication of dangerousness, there was no negligence so no liability.

B. Rylands v. Fletcher (1868) [p. 404] Facts: The defendants hired contractors to build a reservoir. While

constructing, the constructing, the contractors discovered old mining tunnels, but did not investigate further. When the defendants filled the reservoir, the bottom broke and water flowed into the tunnels and filled the plaintiff’s mine. Plaintiff sues for damages; he sues defendants because the contractors have since gone out of business.

Court of Exchequer Exchange Rule: The person who for his own purposes brings something on his land

that is likely to do harm if it escapes, must keep it in at his peril, and if he does not is prima facie answerable for damages that are the natural consequences of its escape.

o Possible excuses: escape was due to plaintiff’s default or an act of God.o Based on as between two innocents theory: the plaintiff has suffered

damage due to no fault of his own; defendant must pay. But for defendant’s actions in bringing substance there, plaintiff would not have suffered damages.

Example: The obligation of an owner of cattle, which he brought on his land, to prevent their escape and doing mischief.

o As they are tame beasts, applies to the grass they eat and trample upon, but not for injuries to persons (this is not in their nature).

There are many cases where negligence must be proved including cases of collision. These cases are distinguished because the plaintiff did NOT take upon himself any risk arising from the way in which defendant chose to use his land.

House of Lords Rule: Defendants used their land for an unnatural purpose (introducing a

condition that was not naturally there) and did so at their own peril.

***Note: Ryland can be interpreted based upon facts or language. ??

Losee v. Buchanan (1873) [pp. 410]: Early Interpretation of Rylands Facts: Defendant’s steam boiler exploded. Pieces flew onto plaintiff’s

premises and caused damages. Holding: No strict liability. The defendants had the right to place the steam

boiler on their land. It was not a nuisance and the jury found no negligence on their part. No recovery for plaintiff.

The rule is that no one can be made liable for injuries to the person or property of another without negligence. Rejects Rylands.

I hold my property subject to the risk that it may be accidentally injured by those who live near me and vice versa. The general good.

Turner v. Big Lake Oil Co (1936) [pp. 411] Facts: Salt water overflowed from defendant’s artificial pond (used to

operate oil wells) causing damage to the plaintiff’s pasture. Holding: No strict liability. Interprets Rylands “unnatural use” element as meaning not a general or

ordinary use; not within the contemplation of the parties to the original grant of land or the grantors or grantees of adjacent lands; a special or extraordinary use.

In Texas, the storage of water is a necessity and within the contemplation of parties. The same applies to oil wells and the production of saltwater ponds.

Lubin v. Iowa City (1964) [pp. 412] Facts: The defendant city had the practice of leaving underground water

pipes in place until they broke, even as they approached the end of estimated life.

Holding: Strict liability for the city. Iowa accepts Rylands Such a practice means that eventually a break will occur and water will

escape likely damaging land of another. The water supplier is in a better position to assume the risk and spread the

costs among consumers who benefit from the savings in maintenance.

C. Abnormally Dangerous Activities

May be understood as descending from a Rylands interpretation that emphasizes the “non-natural” mismatch between the risks created by the defendant’s activity and the place of the activity.

Rest Second §519 and §520There is strict liability for harm that results from an abnormally dangerous activity.Factors to determine if an activity is abnormally dangerous:

1. High degree of risk of harm2. Likelihood that resulting harm will be great

3. Inability to eliminate risk by the exercise of reasonable care4. Extent to which activity is not a matter of common usage5. Inappropriateness of activity to the place where it is carried on6. Extent to which activity’s value to the community is outweighed by its

dangerous attributes.Any one element is not sufficient to warrant strict liability and ordinarily several will be required for strict liability. However, it is not necessary that every element to be present, especially if the other factors weigh heavily.

Common usage means that an activity is customarily carried on by the great mass of mankind or by many people in the community.

Indiana Harbor Belt Ry. Co. v. American Cyanamid Co. [414] Facts: Cyanamid was a manufacturer of acrylonitrile. It loaded the chemical

onto a railroad tank car for shipment. When the train arrived at its final destination a leak was discovered. About one-quarter of the 20,000 gallons leaked out. The chemical was highly flammable and carcinogenic. Decontamination measures that cost close to $1 million were charged to the switching line, Indiana Railroad.

Proc History: Indiana sues Cyanamid to recover the costs on the basis of strict liability for engaging in an abnormally dangerous activity-transporting the substance through the Chicago metro area.

Holding. No strict liability. Guille Case: A man lands a hot air balloon in NY. Plaintiffs garden is trampled

by people who are concerned about the man in the balloon. Plaintiff sues and recovers under strict liability. There was no negligence because plaintiff didn’t intend to land there and landings can’t be pinpointed in hot air balloons. All six factors appear in this case.

The greater the risk of an accident and the costs, the more you want someone to make accident-reducing activity changes, the stronger the case for strict liability.

The largest class of cases for strict liability involve dynamite/explosives used for demolition in residential or urban areas.

Court acknowledges that the substance is hazardous, but it’s #52 on the list. No indication that negligence won’t allow recovery. No destruction of

evidence in this case. Also, if loaded into the tank with due care the accident wouldn’t have occurred. If the tank car is carefully maintained the danger of a spill is negligible. Due care can reduce risk, eliminating need for strict liability.

Court rejects the argument that the substance should not have been transported through a heavily populate area. Due to the hub-and-spoke system railroads, avoiding this is not feasible.

This case attempts to impose strict liability on the manufacturer and not the shipper; weakens the argument regarding transporting through populated area.

This accident could have been prevented at a reasonable cost by greater care from those who handled the tank (negligence). The accident could not have

been prevented at a reasonable cost by a change in activity of transporting (no strict liability).

Court emphasizes that Cyanamid actively participated in loading the chemical into the tank. This allows recovery for negligence.

***Note: Posner does not discuss the social utility of the activity. This factor is also not included in the draft of the third restatement. It is addressed in §519: utility must justify the risk the activity creates. If it doesn’t, it may be negligence to engage in the activity at all. ambivalence

Economic Rationale for Strict Liability: Causes actor to consider whether they should engage in the activity at all. Negligence considers only whether the activity was undertaken carefully.

Siegler v. Kuhlman (pp. 424) Facts: Defendant drove a truck loaded with 86,000 gallons of gas. He

performed the necessary safety checks. While driving, the trailer detached from the truck, spilling gas, which eventually ignited killing a young girl.

Holding: Strict liability applies in the case of transporting gasoline along the public highway.

Compares gasoline to the Fletcher case involving water. It becomes more hazardous when in large quantities.

Gasoline is hazardous in general, and it will likely destroy evidence due to explosion.

The dangers can’t be eliminated by reasonable care.

Klein v. Pyrodyne Corp (1991) [pp. 425] Facts: Defendant was a contractor hired to put on a fireworks show. During

the show a rocket was discharged and injured onlookers. Holding: strict liability due to high risk of activity.

Miller v. Civil Constructors (1995) [pp. 425] Facts: Defendants operated a firing range in a rural area. Most patrons were

police officers. Plaintiff was struck by a ricocheting bullet while riding on the highway.

Holding: No strict liability. The use of firearms is not ultra hazardous according to the Rest factors.

o Risk can be eliminated by reasonable care. Activity is of common usage. Location (rural area) is appropriate. Social utility of officers being able to practice firing.

Unilateral v. bilateral care: should you encourage the public to take care by not driving near the gun range except when absolutely necessary.

Rest Third §20No mention of the social value of an activity as a criterion. Utility and value are often subjective.

Reciprocal RisksThe principle that a victim has a right to recover for injuries caused by a risk greater in degree and different in order from those created by the victim and imposed on the defendant injuries resulting from nonreciprocal risks.

Shavell’s Liability and Deterrence: Basic Theory When there are only unitary precautions to take, the case for strict liability is

strong. When you have two parties that can take precautions, imposing strict liability on one party reduces the incentive for the other party to take any precautions.

D. Respondeat SuperiorLiterally, “let the master answer.” The doctrine holds employers strictly liable for torts committed by their employees in the course of their work. It is a type of vicarious liability: liability for one party based on the wrongs of another.

Makes it easier for a plaintiff to recover from a solvent defendant. Eliminates need for a showing that a principal should be liable for choosing

or supervising an agent negligently.

Ira S. Bushey & Sons v. United States (1968) [pp. 431] Facts: An intoxicated seaman returned to a US vessel late at night. He turned

some wheels on the drydock wall (opening valves that controlled the flooding of the tanks) eventually causing parts of the drydock to sink. Drydock owner sues US for damages.

Holding: Respondeat superior applies. Judgment for plaintiff. §228(1) : conduct of a servant is within the scope of employment if, but only

if. . . (c)it is actuated, at least in part by a purpose to serve the master. The seaman’s return to the boat was to serve the purpose of his employer,

but turning the wheels was not in the service of the employer. Doctrine to provide for efficient allocation of risk. Only useful to apply more

liability if it reasonable to believe that imposing a particular cost on a company will lead it consider other steps to prevent the recurrence of an accident.

Motive test (acting for the purpose of the employer) is inadequate. Instead consider whether the accident is characteristic of the company’s activities.

New test: Was the conduct reasonably foreseeable (i.e. the chance that the sailor could engage in negligent behavior)? The employer should be responsible for risks to the public, which arise ‘out of and in the course of his employment of labor.”

o Different from the reasonably foreseeable risks in the negligence standard

The court emphasizes the fact that the seaman returned to the ship late at night because that’s where he was required to sleep. Also, the myth of the “drunk sailor” makes this reasonably foreseeable.

o It doesn’t matter that the sailor’s precise act wasn’t foreseeable.

o Limitations: When the employee creates risk similar to those of the community in general, the employer is not responsible (i.e. setting fire to the bar).

May not be the majority approach.

Frolic and Detour-Miller v. Reiman-Wuerth Co. (1979) [pp. 434] Facts: Defendant employed Grandpre at a construction site. One day G

sought permission to leave work to deposit his paycheck and was granted permission. He was involved in an auto accident on the way back to work. Plaintiffs sue employer to recover.

Holding: No liability for employer. This was not within the scope of the employee’s job.

Plaintiff’s argue that this action furthered employee happiness and advanced the purpose of the employer. Court rejects. This would widen the scope of the employer liability too much (weekends, vacations, etc.)

Employer is not liable while employee is on a “frolic or detour” of his own.

Konradi v. United States (1990) [pp. 435] Facts: Mailman while driving to work was in a car accident and killed

Konradi. Proc History: Konradi sues the US Postal Service. Trial court grants SJ to

defendant. Ct of Appeals reverses SJ. Court acknowledges general rule that “an employee on his was to work is

normally not in the employment of the corporation.” Normally is a “weasel word”

Economic Interpretation of Respondeat Superior: Often an employer can reduce the number of accidents caused by his employees by altering the extent of his operations-his activity. Respondeat Superior is a form of strict liability.

The Post Office required employees to use their own vehicles, thereby almost guaranteeing they would drive to work. They gave specific directions to fasten seatbelts and drive to work by the most direct route, which may not be the safest route.

o The employer should be liable for accidents that result from this directive that make them more likely.

Roth v. First Natl State Bank of NJ (1979) [pp. 438] Facts : Pl ran a check-cashing business and deposited checks and received

large sums of money every morning. Pl was robbed one morning at gunpoint. The thief was tipped off by the boyfriend of one of the bank’s tellers. Pl sues bank.

Held : No liability for bank. Teller was not acting in the scope of employment.o Act was not in service of employer; teller had not connection with Pls

transactions-simply observer knowledge, the tip did not occur during the timing of her employment

1 Rest §228 : Conduct is in scope of employment if: it is the kind he is employed to perform; it occurs substantially within the authorized time and space limits; it is in part a purpose to serve the master; if force is used, it is not unexpected by master

If an employee deviates from the business of his employer and while in pursuit of his own ends commits a tort, the employer is not liable.

An act may be within the scope of employment although consciously criminal or tortuous, 1 Rest §231, as done for the master’s purposes or reasonably expected.

Forster v. Red Top Sedan Service [439] Facts: Pls were driving to airport. Driver of a Red Top bus began trying to

run them off the highway. He pulled in font of them and stopped; then he ot out and struck each one in the face claiming they wouldn’t mess p his schedule.

Held : Pls can recover. It’s for a jury to decide.

Reina v. Metropolitan Dade County [439] Facts : Pl and bus driver engaged in argument over fare. Pl got off bus and

made an obscene gesture. Driver chased down Pl and beat him. Pl sues county.

Held : Directed verdict to the Def. Pl can’t recover.Distinction between Forster and Reina: Forster-acting within scope of employment; upset because car was slowing down his bus route. Reina: The attack appeared to happen only because of the obscene gesture and only after the passenger left the bus. Therefore, the motivation was personal. Respondeat Superior doesn’t apply

Miami Herald Publishing Co. v. Kendall (Fla. 1956) [pp. 440] Facts: Paperboy for Miami Herald conducting delivery on is motorcycle. He

runs over someone. Accident victim sues paperboy and newspaper. Holding: No liability for Miami Herald, paperboy was an independent

contractor. Test: Controls the means by which the task is accomplished.

o Employee-behavior is controlled and/or directed by the employer. The employer is better able to enact precaution measures.

o Independent contractor-hired to produce results; how he/she produces the result is left to individual discretion. The employer exercises little or no control over the specific actions of the employee.

Contract provision is evidence of independent contractor relationship, but not dispositive.

Essential fact for the court-it was left up to the paperboy to decide the means of conveyance. Also, the paperboy paid for the newspapers that he delivered.

Downfall of this doctrine: by not placing liability on the employer, there is no incentive for employer, who has the money, to take precautions.

Restatement §220 Definition of a Servant [442] Hired to perform services of another; physical conduct in the performance is

subject to the other’s right to control Consider the following factors: the extent of control over details; distinct

occupation or business; the norms of the occupation and locality regarding whether work is done under direction of an employer or unsupervised; the skill required in the occupation; who supplies the tools and where the work takes place; length of time of employment; method of payment (by time or by the job); etc.

Yazoo & Mississippi Valley Railroad Co. v. Gordon (Miss. 1939) [pp. 443] Facts: RR hired agent to unload cattle and hold them while waiting for

connecting train. A steer escaped and gored the PL. Pl sues RR. Held: Def is liable if steer’s escape was caused by negligence. Def owed duty

to public that it could not delegate performance to another and escape liability.

Rest §416 [444]: If the activity engaged in creates a peculiar risk of physical harm to others unless special precautions are taken, then there is no escape from liability for the employer.

Wilton v. City of Spokane (Wash. 1913) [pp. 444] Facts : City hires firm to build a street as independent contractor. Firm paves

over a piece of dynamite it used to blast away rock. Later, while another firm is installing utility poles, the dynamite explodes and Pl is injured.

Held : City is not liable. Exception to the above exception: The actual harm that takes place needs to

be the result of the peculiar risk created. Where the defect or injury is the result of negligence and is collateral to the contract, the employer is not liable.

o The employer should not have known this defect occurred and would not have discovered it through reasonable efforts.

Rest §429 Negligence in doing work which is accepted in reliance on the employer’s doing the work himselfOne who employs an independent contractor to perform for another who accepts with the reasonable belief that the work is being performed by the employer or his servants is liable for the harm of the contractor to the same extent as an employee.Ex. A hires taxi cab with the name X Cab Company. Driver is really an independent contractor. Taxi gets in an accident. A can sue X Cab Company.

IV. Duties and Limitations

Negligence Elements1. Duty of Care2. Breach of Duty3. Cause in fact

4. Proximate Cause5. Damages

A. Affirmative Acts The claim in a negligence case is that the defendant had a duty to use

reasonable care toward the plaintiff and breached the duty. The law generally imposes duties of care on people when they engage in

affirmative acts-the sort of acts that create risks for others (i.e. driving, performing a medical operation, etc.)

Defendant cannot normally be liable for an omission. Distinguish Misfeasance (affirmative act that creates risk of harm) and

nonfeasance (non-action that creates risk of harm). Liability only for misfeasance.

Yania v. Bigan (Pa. 1959) [pp. 216] Facts: Plaintiff’s decedent was asked by defendant to aid him in starting a

pump, located in a trench. Plaintiff jumped down into the trench (a height of 16 – 18 ft with water of 8-10 ft) and died. Plaintiff’s wife brings a wrongful death suit

Plaintiff alleges three counts of negligence: urging Tania to jump into the water, failing to warn him of the dangerous condition, and failing to come to his aid.

Holding: No liability because there was no duty of care. o Enticing or cajoling plaintiff to enter the water is not relevant because

plaintiff lacks full mental capacities (possibly different in plaintiff were a child or mentally deficient).

o No duty to rescue someone unless you are legally responsible for their peril.

Plaintiff must bear the result of his ignorance or recklessness. There’s a sense that the act of jumping breaks the chain of causation between

the taunting and the harm. (Same rationale applies when a person encourages someone to commit suicide).

Negligent misrepresentation (when reliance is likely to occur): this is another tort; if the plaintiff lied to the decedent and told him the pit wasn’t deep or dangerous, this tort may have applied

Duty of Care doctrine and lack of duty to save people is based on libertarian principles-they do not want to infringe upon personal liberty (time, etc)

Rest §314 : Imposes duty to aid those in peril when reasonable. Imposes fine of only $100 if you breach this duty. If you aid the person you can only be liable for damages if your acts are grossly negligent or unless you expect to receive remuneration. Doesn’t apply to practitioners.

Rest §321: If an actor commits an act that he subsequently realizes creates an unreasonable risk of harm, he has a duty to exercise reasonable care to prevent the harm from occurring. He has liability.

Rest §322: An actor has a duty to aid someone the actor has placed in peril.

Weirum v. RKO Radio General, Inc. (Cal 1975) [pp. 220] Facts: Defendant was owner of KHJ, a radio station. The station held a

contest in which a red car drove to a number of locations. First person to locate him could receive a prize. 2 teenagers following the car ran another car off the road and the driver died. Driver’s family sued KHJ.

Holding: Judgment for plaintiffs. KHJ’s affirmative act (the contest) created an undue risk of harm.

Globe Malleable Iron & Steel Co. v. New York Cent & H.R. R. Co. (NY 1919) [pp. 221] Facts: A fire broke out in plaintiff’s factory, which was located near railroad

tracks. Defendant’s train was approaching and saw the fire, but did not stop. The train prevented the hoses from reaching the plant and caused a 15-minute delay. Plaintiff sued railroad for negligence.

Verdict for plaintiff. Railroad has a right to use its tracks in view of its own interest and the interests of the public. Emergency creates exception to railroad’s right of way on tracks.

B. Duties Arising from Undertakings

Sometimes a defendant who had no duty may acquire a duty by undertaking to provide assistance or voluntarily assuming responsibilities.

Hurley v. Eddingfield [pp. 227] Facts : Def was Pl’s family doctor. Pl became ill and sent for doctor. No other

doctor was procurable in time. Def could have gone, but did not. Pl’s decedent died. Pl sues doctor.

Held : In favor of Def. Physicians are not bound to enter into a contract for service except on their own terms.

O’Neil v. Montefiore Hospital [pp. 228] Facts : Pl’s husband suffered from heart attack like symptoms. She took him

to the hospital. A nurse said they did not accept patients with Pl’s insurance plan. A doctor affiliated with the insurance plan told them over the phone to come back at 8 am when someone affiliated with the insurance plan would be able to examine him. They reluctantly went home. Pl’s husband died. Pl sues doctor and hospital.

Held : Pls claims can go to trial. When a physician who undertakes to examine or treat a patient and then abandons him, he may be held liable for malpractice.

United States v. Lawter [229]

Facts: Pl and 3 others were on a boat. A waved washed them off the boat. A coast guard helicopter saw them and attempted to save them. The copter lowered a cable. Pl’s wife was first to be lifted, but they lifted the cable before she was properly in the swing. While she was hanging just below the helicopter her hands slipped and she fell back into the water suffering fatal. Injuries. The husband sues coast guard for negligence in allowing the most inexperienced crewmembers to operate the cable lift.

Held : recovery for pl. The Coast Guard placed decedent in a worse position than when it took charge and negligently brought about decedent’s death.

Rule : When you attempt to do anything, even gratuitously, for another the law imposes upon you a duty not to injure that person by negligent performance of that which you have undertaken.

Frank v. US [230] Facts : Pl’s decedent was on a fishing expedition and the boat became

disabled because of engine failure. The coast guard sent out the only available boat suitable for rescue. During the tow, decedent attempted to walk along the deck of his boat and was thrown overboard. He drowned before they could reach him. Pl sues claiming the decedent drowned because: the Coast Guard boat had a defective reverse gear which delayed it in reaching decedent before he drowned, the life rings were secured so they could not immediately be thrown overboard, and the crew was less than the customary complement.

Held : The responsibility of a public agency rises no higher than that of a public salvor. Not liable for this diligent rescue attempt although ineffectual for lack of adequate equipment, preparation, or personnel.

Ocotillo West Joint Venture v. Superior Court [230] Facts : Z an E were drinking and golfing at Ocotillo. 2 Ocotillo employees took

away Z’s keys because he appeared intoxicated. E offered to drive Z home, but when outside gave Z his keys back. Z drove away and suffered fatal injuries in a car accident. Z’s family sued Ocotillo. O attempted to bring E into the case.

Held ; When E took charge of Z he assumed a duty to use reasonable care. E’s actions stopped the O employees’ efforts to keep Z out of his automobile. A jury could find E either partially or wholly at fault.

Good Samaritan Doctrine: o Rest §323 Negligent performance of undertaking to render services:

one is liable if he fails to exercise reasonable care to perform undertaking if the risk of harm increases or the harm is suffered because of the other’s reliance on the undertaking

o Rest §324 Duty of one who takes charge of another who is helpless: liable for bodily harm to the person you’ve taken charge of if you fail to exercise reasonable care or you discontinue the aid and leave the person in a worse position than when you took charge.

1. Duties to Rescue or Assist Others

Petition of Trans-Pacific Fishing and Packing Co [234] Facts: Fishing boat was out. 3 crewmen washed overboard. The captain did

not look for them because the weather was bad and the engineer advised against it.

Held: Pls can recover damages. It is the duty of every ship owner and operator to use all available means to rescue from the sea any and all persons and members of a crew who are washed overboard.

Brosnahan v. Western Airlines [235] Facts: Pl was on a flight in his seat. Another passenger was struggling to stow

a carry-on and dropped the bag on pls head. Pl sues airline claiming that a flight attendant should have been stationed in coach to assist passengers with bags.

Held: Judgment for Pl. Airline’s duty to supervise boarding process for protection of its passenger continues until all passengers are seated with carry-on luggage properly stowed.

Boyette v. Trans World Airlines [235] Facts: Pl’s decedent was traveling and had a connecting flight. He had several

drinks on his first flight. After disembarking he stole a golf cart and was chased by airline employee. A friend helped him hide in trash chute and he fell into the trash compactor and was compacted. Pl sues claiming Def was negligent in chasing decedent, failing to take effective steps once he was in the compactor, and failing to post warning signs.

Judgment for def. Duty of common carrier (highest degree of care) ends once the passenger reaches a reasonably safe place; airport was such.

2. Duties to Protect Others from Third PartiesSometimes based on the relationship not between the Pl and Def but between the Def and the party causing the harm.

Rest §315 General Principle Duty to control conduct of third party when:

1. A special relationship exists between the actor and the third person where the actor has a duty to control the third person’s conduct

2. A special relationship exists between the actor and the other which gives to the other a right to protection

Tarasoff v. Regents of the University of California [239] Facts : Pl’s daughter was killed by PP. PP allegedly confided his intention to

kill the daughter to a university psychologist. The police released PP when he appeared rational. No one warned the daughter. Pl’s parents sue the

university, psychologists, and police for failure to detain a dangerous patient and failure to warn of a dangerous patient.

Issue : Are the Pl’s interests entitled to legal protection against the Def’s conduct?

Common Law Rule : one person owed no duty to control the conduct of another, nor to warn those endangered by the conduct.

o Exception : When special relationship exists between Def and person who needs to be controlled or foreseeable victim. Rest §315

Held : Psychologists have responsibility to patients and to warn victims. Not a breach of doctor-patient confidentiality. Breach of a duty to exercise reasonable care to protect daughter. Police have no duty to either patient or victim.

HIV Positive Test Results [243]The Tarasoff decision may make doctors responsible for notifying health officers and individual’s sexual and needle-sharing partners if individual refuses to do so. Not a breach of confidentiality.

Thompson v. County of Alameda [244] Facts : Pls and their 5 year old lived near the mother of a juvenile offender.

The county knew the Juv had threatened to take the life of a young child in the neighborhood and had dangerous and violent tendencies toward young children. The county released the Juv into the temporary care of his mother w/o warning the neighborhood. Within 24 hours the juv killed the Pls son. Pls sue the county for breach of duty to warn parents of young children in the neighborhood.

Held : No duty to warn. There were no precise targets in this case. Waning would have been general and probable not effective. Also, such a practice might jeopardize the rehabilitative efforts of offenders.

Kline v. 1500 Mass Ave Corp [245] Facts : Pl was attacked in her building. There used to be a doorman in the

building. Over time, crime in the area had been increasing. Pl sued the building owner.

Held : The landlord had duty to protect the tenant in a multiple dwelling building because he had notice of repeated criminal assaults in the portion of the building under his exclusive control. The landlord had a duty to take those steps within his power to minimize predictable risk to his tenants.

o General Rule : A private person does not have a duty to protect another from a criminal attack by a third person. Past application of rule to landlord-tenant relationship.

o Other relationships with similar duties : landowner-invitee, businessman-patron, employer-employee, school district-pupil, hospital-patient, carrier-passenger. The theory is that the ability of one party o provide for his own protection has been limited in some

way by his submission to the control of the other, a duty should be imposed. No liability if the violence is sudden and unexpected.

Bradshaw v. Daniel [246] Facts : Johns admitted to the hospital and correctly diagnosed with a disease

by Def. He died. A week later his wife was admitted to a different hospital with the same symptoms. She died. Son sues def for failing to warn wife of the risk she might have the disease.

Held : Def has a duty to warn when contagious disease is discovered because there was a foreseeable risk of harm to an identifiable third party.

Hawkins v. Pizarro [247] Facts : Def incorrectly advised a woman that her test results for Hep-C were

negative. She married and her husband contracted Hep C. He sues def for incorrectly informing wife and preventing her from taking precautions to avoid infecting him.

Held : No recovery for Pl. Husband was unknown to Def at the time he misread woman’s test results and so was not an identified third party to whom he could owe a duty of care.

D. Duties Arising from the Occupation of Land

1. Duties to Trespassers

Haskins v. Grybko [253] Facts : Def went into his squash garden at night to hunt woodchucks ravaging

his crop. He heard a rusting noise and shot. He actually shot a person whose body he discovered the next morning. Pl sued Def for negligence.

Held : If the intestate was a trespasser upon the Def’s land, the latter was not liable for mere negligence. He is only obligated to refrain from intentional injury and from willful, wanton, and reckless conduct.

Herrick v. Wixom [254] Facts : Pl snuck into Def’s circus. During the show a firecracker stuck Pl’s eye.

Pl sued circus. Held : Pl can recover. A trespasser who suffers an injury is because of a

dangerous condition of premises is without remedy. However, where a trespasser is discovered by the owner/occupant, the owner/occupant is liable for any injury resulting from negligence.

Obligations to TrespassersRest §333 General Rule A possessor of land is not liable to a trespasser for injury caused by his failure to exercise reasonable care

Rest §334 Activities highly dangerous to constant trespassers on limited area When a possessor of land knows that trespassers constantly intrude, he is subject to liability for injury caused by his failure to exercise reasonable care when carrying on an activity involving a risk of death or serious bodily harm.Rest §337 Artificial conditions highly dangerous to known trespassers Liability for injury caused to trespassers if failure to exercise reasonable care to warn them if the possessor knows or should know of their presence or the condition is one which the trespasser will not reasonably discover.

Well-beaten path rule: If there’s path on your property and you know trespassers are going by, you have a duty to them. The negligence standard is applied.

Courts also treat natural dangers differently then artificial hazards. For example, if you have a pond on your land and there is the danger that children may fall in you don’t have a duty to fence the pond, but you would have a duty to fence a swimming pool (or take other precautions).

Keffe v. Milwaukee and St. Paul R. Co. [256] Facts: Pl, 7 yrs old, caught his leg in Def’s turntable. Leg had to be amputated.

Turntable easily revolved, was unfenced and located near passenger depot and 120 ft from Pl’s home.

Held: Pl can recover even though a trespasser. Attractive nuisance doctrine: if there is something that looks appealing to

children on your property, but is really dangerous, even if they are trespassers you have a duty to take precautions.

Ryan v. Towar [257] Facts: children entered a pump house through hall in the wall (that they

created) and began to play on a water wheel. Pl was injured. Verdict for the Def. corporations should not have to bear the costs of

preventing children from entering premises. Minority Rule

Attractive Nuisance doctrine extended to cases where children were not “lured” there: Rest §339 Artificial Conditions Highly Dangerous to Trespassing Children [258] 2. Duties to Licensees

Lower standard of care for licensees than invitees. Licensee is a social guest. Invitee is business guest or public guest.

Davies v. McDowell National Bank [258] Facts: Pls visited business office of Thomas (stepfather). Thomas was

unconscious. After the doctor left, they remained to help care for him. They died in the house from carbon monoxide poisoning.

Held: Pl’s estate can’t recover. Pls were social guests, but Def did not know of danger.

If “business visitors” (and not social guests), the duty of the owner is to exercise reasonable care in maintaining the premises in a safe condition.

Social guests are gratuitous licensees . The owner is liable for bodily harm caused by a latent dangerous condition existing thereon only if he has knowledge of the condition and fails to give warning, realizing it involves unreasonable risk and they are not likely to discover its existence.

Lodi v. Spiotta [259] Facts: Def invited Pl and son o his summer home. Def failed to turn off the

gas heater causing an accumulation of natural gas. Def asked Pl to light heater. An explosion occurred that killed Pl’s so.

Pl recovers because of Def’s negligence. A guest takes a place as he finds it. Guest rule does not immunize owner

from liability where the guest is injured by an unknown danger created by the proprietor’s negligence.

Obligations to Licensees [260-261]Rest §330 A licensee is a person who is privileged to enter or remain on land by virtue of possessor’s consent.Rest §341 A possessor of land is liable for injury to licensees by failure to exercise reasonable care if he knows or should know they will not discover or realize the danger and they do not know of possessor’s activities and of the risk involved. Rest §342 Possessor is liable for injury to licensee by a condition on the land only if he knows or has reason to know of the condition. . .etc

3. Duties to Invitees

City of Boca Raton v. Mattef [261] Facts: Pl’s decedent proceeded to engage in a task for which a contract had

not been completed. Attorney instructed decedent to talk to town engineer. Decedent didn’t do so-he proceeded to paint a name on the water tower and fell to his death when a ladder rung broke.

Held: Deceased was a volunteer. He had not yet been invited by the city to enter upon the undertaking and so was not an invitee.

Invitee : one who enters upon the premises of another for purposes connected with the business of the owner or occupant of the premises.

Licensee occupies a status only slightly better than a trespasser. Licensee takes the premises as he finds them and the duty of the owner is to refrain from wanton negligence or willful misconduct.

Obligations to Invitees [264]Rest §332 Invitee is either a public invitee or a business visitor. A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public. A business visitor is a

purpose who is invited for a purpose connected with business dealings with the possessor of the land.Ex. If A enters a public library simply to escape the rain he is not an invitee.Rest §341A Activities Dangerous to Invitees Landowner is liable for injuries caused by his failure to carry on his activities with reasonable care for their safety only if he suspects they will not realize it themselves.Rest §343 Dangerous conditions known to or discoverable by possessor A possessor can only be liable if he knows or should know of the condition. . .

Carter v. Kinney Facts: Pl was a member of a bible study group that met at Defs home. Pl

slipped on ice on D’s driveway. Pl sues. Held: Pl can’t recover because Carter was not an invitee because Carter

entered the land not to afford the Kinneys any material benefit. Owners owe no duty to protect a non-invitee from unknown dangerous conditions.

Some states have completely eliminated the distinction between licensee and invitee.

The Public Duty DoctrineThe duty of public/government agencies is to the public at large. An individual can only bring a suit by demonstrating the existence of a special relationship with the defendant.

Riss v. City of New York [249] Facts: Riss received several threats from X. She begged for police protection

several times. Eventually ex hired thug to throw lye in her face leaving her legally blind and permanently scarred. Police then gave protection. Riss sues.

Held: Pl can’t recover. No duty to protect specific individuals. Limited resources.

Privity and Pure Economic LossCourts sometimes impose limits on the duty a defendant owes to a third party not in privity with a defendant if he/she is injured when the defendant breaches a contract.

H.R. Moch Co. v. Rensselaer Water Co. (NY 1928) [pp. 270] Facts: Defendant was under a contract with the city of Rensselaer to supply

water for a variety of services including fire hydrants. A fire broke out and the Def was notified and failed to supply sufficient water of adequate pressure to extinguish the fire, although it was under contract and had the ability to do so. The fire spread to Pl’s warehouse.

Breach of K claim: The city does not have a duty to provide its residents with protection against fire. The contract does not indicate the intention that the promisor will be answerable to individual citizens.

o The benefit to the third party must be primary and immediate, not incidental. If not, the promisor would be exposed to unreasonable burdens.

Common-law Tort Action: One who acts may become subject to the duty of care, even if he was not originally bound to act.

o To apply it in this case would create liability to an indefinite number of third parties.

Holding: Defendant’s motion to dismiss the complaint is granted. No action for breach of K or for a common-law tort.

Glanzer v. Shepard (NY 1922) [pp. 272] Facts: Pls bought beans from a seller. The seller hired Def to certify the

weight, which was basis of price. Pls later discovered the weight was incorrect and sued Defs.

The consequence to the buyer and seller was the main aim of the contract. Holding: Judgment for plaintiffs. The contract imposed a duty toward buyer

and seller.

Food Pageant [273]Massive power outages for Consolidate Edison customers. Grocery store owner sued for damages for spoiled food and lost business. Con Ed found to be grossly negligent in permitting the blackout and damages for plaintiff.

Lilpan Food Corp [273]Plaintiff sues for damages due to looting during blackout. Complaint dismissed. The looting was caused not by the failure to supply electricity to the market but by the failure to supply electricity to the city, in general, including street and traffic lights.

Conboy v. Mogeloff (App. Div. 1991) [pp. 273] Facts: Defendant doctor proscribed medication fro migraine headaches and

episodes of unconsciousness. Def notified plaintiff of drowsiness as side effect, but told her she was okay to drive. Pl fell unconscious behind the wheel and drove into a bridge abutment. Pl brought suit on behalf of her children (passengers) for their injuries.

Holding: Complaint dismissed. The doctor owed no duty to the children. To establish a duty of a physician to a third party there must be actual privity

or conduct that exhibits defendant’s understanding of plaintiff’s reliance.

Biakanja v. Irving (Cal 1958) [pp. 274] Facts: Maroevich died. His will bequeathed all of his property to his sister.

The will was prepared by a notary, the defendant, and held to be invalid because witnesses were not present. The sister, plaintiff, only received one-eight of the estate. She sued defendant.

Factors to consider when determining liability to third person:o The extent to which the transaction was intended to affect the Pl

o Foreseeability of harm to the Plo Degree of certainty Pl suffered injuryo Closeness of connection between Def’s conduct and injuryo Moral blameo Policy or preventing future harm

Holding: Judgment for plaintiff. No formal privity, but the aim of the will was to ensure passage of estate to Pl. The act directly affected plaintiff and caused injury.

Robins Dry Dock & Repair Co. v. Flint (1927) [pp. 277] Facts: Pls chartered steamboat. During normal servicing a crack in the

propellor was discovered. Owners paid Robins Company to replace it. One of the Robins’ employees dropped the new propeller causing an additional two weeks. Plaintiffs sued for losses causes by their inability to use the boat for 2 weeks.

Holding: No judgment for plaintiffs. A tort to the person of a contract does not extend protection to persons in

contract with a contract party. The Economic Loss Rule: A plaintiff who suffers no physical injury generally

cannot recover for pure economic losses caused by a defendant’s negligence. This extends to acts of negligence not committed in the course of performing a contract.

o Regarding the nature of the harm and whether you can recover for a particular injury. It is not about a duty of care.

Madison Avenue Gourmet Foods, Inc. v. Finlandia Center, Inc . (NY 2001) [pp. 281] Facts: Def owned a building in Manhattan. The south wall collapsed during

renovations. The city ordered the area around the defendant’s building closed for at least 2 weeks. Plaintiff had to shut down his delicatessen for a month. He sued for damages (lost profits) based on Plaintiff’s negligence.

Holding: Complaint dismissed. A landowner does not have a duty to protect an entire urban neighborhood against purely economic loss.

o Several parties were affected. The only clear way to distinguish among them is those who have suffered personal injury or property damage.

People Express Airlines, Inc. v. Consolidated Rail Corp. (NJ 1985) [pp. 283] Facts: A fire started at the defendant’s rail yard. There was a risk of

explosion due to a nearby tank car full of ethylene oxide. The area within a one-mile radius was evacuated included the Plaintiff’s terminal. Pl sues to recover for its losses saying the fire was caused by defendant’s negligence.

Numerous exceptions to the economic loss rule, undermining the per se rule of nonrecovery for noneconomic losses. Two important considerations:

o Foreseeability (standard): the more particular the foreseeability that the plaintiff will suffer economic loss due to defendant’s negligence, the more just it is to impose liability.

o The extent to which the defendant knew or should have known the particular consequences of his negligence.

Common exceptions o Based on the “special relationship” between the tortfeasor and the

deprived individual.o Particularly foreseeable group, such as sailors and seamen

Holding: Judgment for the plaintiff. A defendant owes a duty of care to take reasonable measures to avoid economic damages to particular plaintiffs comprising an identifiable class whom the defendant knows or has reason to know is likely to suffer such damages from its conduct.

***This holding is a minority position. Identifiable class of plaintiffs does not equal foreseeable class (members of

general public near the area do not constitute identifiable class). Foreseeable in terms of type of persons, certainty of their presence, approximate number, and type of economic damages.

Rules v. Standards approach to imposing liability. Problem of under-deterrence?

G. The Negligent Infliction of Emotional DistressTwo main categories: (1) near miss cases-defendant narrowly avoids causing plaintiff physical harm, but the plaintiff was in great fear OR defendant tells plaintiff a mistaken piece of bad news (2) bystander-the horrified witness of harm inflicted upon others.

Robb v. Pennsylvania Railroad Co. (Del. 1965) [pp. 289] Facts: Def railroad negligently allowed a rut to form at one of its crossroads.

Plaintiff’s car got stuck in the rut. She jumped from the car when she saw a train approaching, only narrowly escaping. She claims the fright impedes her ability to care for her child and perform her job. She seeks recovery for the physical consequences of the fright.

There can be no recovery for fright alone, not leading to bodily injury or sickness.

Impact Rule based on 3 propositions: (1) since fright does not give rise to cause of action, consequences of fright do not either; (2) physical consequences of fright are too remote and the causal connection is unprovable; (3) Public policy and expediency demand there be no recovery for the physical consequences of fright in the absence of an initial physical injury (too easy to claim and hard too disprove, too subjective).

Rebuttal: (1) First proposition is not generally adhered to-the gist of an action is the injury flowing from negligence. (2) Causal issues minimized by advances in medicine. (3) The issues of proof occur in cases where mental suffering follows physical injury; should not preclude recovery.

Holding: Zone of Danger Rule: Where negligence causes fright, and one is in the immediate area of physical injury, which results in physical consequences, the injured party is entitled to recover.

Lawson v. Management Activities, Inc. (Cal. App. 1999) [pp. 293] Facts: Defendant’s plane crashed. It missed plaintiffs’ car dealership, but

they feared it was going to hit them. Suit for damages due to emotional distress.

Holding: No recovery. The duty of care on airplane operators does not extend to untouched spectators.

Seven factor analysis for duty of careo Certainty of injury weighs heavily against liabilityo Moral blame also weighs against liabilityo Macroeconomic consequence to community: actuarial

unpredictability of emotional distress damages

Quill v. Trans World Airlines (Minn. 1985) [pp. 294] Facts: Plaintiff was a passenger on a plane that went into an uncontrolled

tailspin. The plane did not crash and no passengers were injured. Plaintiff claimed damages due to the anxiety he now experienced while flying, which he did at least 60 times per year for business.

Jury awarded Plaintiff $50,000

Marzolf v. Stone (Wash 1998) [pp. 301] Facts: Son was killed in a vehicular accident. His father arrived on the scene

in time to see him die Father sues for negligent infliction of emotional distress.

Holding: Recovery is not limited to only those who witness the injury-causing events, but those who suffer emotional trauma from the scene.

o If not there would be an arbitrary distinction.

Gain v. Carroll Mill Co. (Wash 1990) [pp. 301] Facts: Son killed in auto accident. Father witnessed live footage from scene

on the news and recognized his son’s car and realized that his son had died. He sues for emotional distress.

Holding: No recovery. Mental suffering by a relative who is not present at the scene is not foreseeable.

Barnhill v. Davis (Iowa 1981) [pp. 302] Facts: Plaitiff was driving and he was followed by his mother in another car.

His mother’s car was hit by another car. She suffered no serious injuries. Pl sues for emotional distress from worrying about his mother. He cited physical effects (dizziness, etc.)

Trial ct gave SJ. Iowa S Ct reversed and remanded for trial. It is conceivable that a son who witnesses his mother in an accident may suffer emotional distress.

Barnes v. Geiger (Mass. App. 1983) [pp. 302] Facts: Woman witnessed a car hit a pedestrian and hurl him 60 ft into the air.

She feared it was her son, but it was not. The next day she suffered from a hemorrhage. Her husband sues car driver for infliction of emotional distress, claiming that the accident caused elevated blood pressure, which caused the hemorrhage.

SJ for defendant. A fleeting instance of fear cannot be the basis for recovery. Court does not wish to extend liability to instances based on anxiety from

mistaken fact. Based on the disposition of the person to imagine that the worst has happened.

Courts are lax on the requirements for physical symptoms: cold sweats do count.

V. Causation

L for injuries you cause, but no L if the injury wasn’t caused by what you did. A. but for your actions would the injury have occurred? If no…L.

A. But-for-Causation

New York Central R.R. v. Grimstad (1920) [pp. 308] Facts : Grimstad was captain of barge. He fell overboard. His wife ran to get a

line; when she returned he had disappeared. She sued the barge owner for negligently failing to provide lifesaving equipment on the barge.

Holding: No recovery for the plaintiff. The proximate cause of death was falling into the water. There is no

evidence that having a life buoy on board would have prevented him from drowning (she may not have been able to get to it in time, she may not have thrown it, etc.)

Duty of Careo Occupier of land rule (captain/employee is a business invitee of ship

owner)o Special relationship (ship owners having duty to crew)

Gardner v. National Bulk Carriers, Inc. (1962) [pp. 308] Facts: Gardner was a seaman on a vessel. At midnight it was discovered that

he was missing; he was last seen 6 hours ago. The ship did not alter its course. Gardner was never found. Gardner’s administratrix sued the ship owner for negligence.

Holding: Ct of Appeals found JMOL to the Plaintiff. The ship’s master had a duty to rescue.

o Seamen who fall overboard often survive for many hours.o Cost-benefit-analysis: the ship would have only lost time by turning

back (a half day at the most).***Distinction between Grimstad and Garner: It may be based on the frequency of the occurrence. Most people can’t survive in water or stay on the surface for a very long time. A sailor, on the other hand, is presumed to be a very good swimmer.

Stacy v. Knickerbocker Ice Co. (Wis. 193) [pp. 309] Facts: Defendant’s company harvested ice from Fowler Lake. The defendant

hired horses from plaintiff. The horses became frightened, ran across the lake, and fell through a patch of thin ice and drowned.

Plaintiff sues for value of horses claiming negligence for (1) failing to erect a fence around the thin ice (required by statute), (2) failing to notify its employees of the location of the thin piece of ice, (3) failing to keep equipment near the lake that could be used to pull he horses out of the water.

Holding: No recovery for the plaintiff. Even if all the precautions were taken the horses would not have been saved.

o They were frightened-the fence wouldn’t have stopped them.o Even if the employees knew the location of the thin ice, they had no

control over where the horses ran.o There is no rule requiring equipment suitable for hauling horses out

of the water. There is conclusive proof that this wouldn’t have helped anyway.

o The precautionary measures are geared towards humans and not horses (i.e. specifications of fence.

Herskovits v. Group Health Cooperative of Puget Sound (Wash. 1983) [pp. 317] Facts : Pls decedent brought a suit against Def for failing to make an early

diagnosis of lung cancer. Expert witness testified that an earlier diagnosis would have resulted in a 39% chance of survival for five years as opposed to 25%.

Held : Medical testimony of a reduction of an originally less than even chance of survival (i.e. less than 50%, in this case from 39% to 25%) is sufficient evidence to allow the proximate cause issue to go to the jury. Loss of Chance

o Damages should be awarded to the injured party based only on damages caused directly by premature death.

Traditional Rul e is that if Pl’s chance of life is less than 50%/51% then the doctor’s negligence was more than likely not the cause of death. See analysis on pp. 321.

Dumas v. Cooney [pp. 326] Facts : Pl had an x-ray in 1984 that revealed something on hi lung. Def did not

investigate further. In 1986 he was diagnosed with lung cancer. Estimated chance of life for 5 years was 33% as opposed to 67% if diagnosed in ’84.

Held : Trial court erred by instructing the jury on the theory of lost chance because it produces more statistical errors than a traditional analysis. Use the traditional rule-more likely than not.

Why do we care about causation, if we know someone has done something negligent?Why do we feel comfortable with making some people pay for injuries they do not cause?

B. Alternative Liability

Summers v. Tice [pp. 332] Facts : P and two Ds went hunting; each D had a gun and the three parties

were positioned in a triangle. As the two Ds went for the quail, they both shot in the direction of the P and the P was struck in the face by bird shot. P sued for negligence.

Issues : Should the P have to prove which D shot him? Procedural History : P won and judgment entered against both Ds; they

appealed on grounds that the P failed to prove which fired the shot that hit him

Rules : The burden of proof on the subject shifts to the Ds. Reasoning : The Ds brought about a situation where the negligence of one of

them injured the P, so the burden rests with them each to absolve himself if he can. They compare it to Res Ipsa Loquitur, and situations where the Ds are in better positions to offer evidence and determine which one caused the injury.

Holding : Each D is L for the whole damage whether they are deemed to be acting in concert or independently. Joint and Severable Liability- everyone individually is L for the whole (doesn’t mean each pays the full value, but they’re L for it…Ds figure out how to proportion it out).

Decision : Affirm

R. §433 Apportionment of Harm to CausesWhere multi Ds, the L is proportioned out to the Ds based upon their portion of the harm caused. See p. 333 for illustration on 5 dogs.

Are these illustrations consistent? In 11, both parties were somehow involved in the interactions; the issue is determining the extent of their involvement and how it relates to causation. In 10, only 1 party was actually involved, and the issue is figuring out which party was involved (this involved party did cause the harm…in 11, both parties were involved but only one caused the harm). It also could be a case of active v. passive involvement…

Kingston v. Chicago [pp. 334]

Facts: A fire caused by D was burning NW of Ps lumber yard when it merged with a NE fire whose origin was unknown. Both fires were of equal size and either would have destroyed the Ps property on its own. The merged fired destroyed the property and P sued. Jury brought verdict for P and the appeals court affirmed.

If the union with the other fire, of natural origin, was a defense, the burden is on the D to show that the fire set by him was not the proximate cause of the damage.

No principle of justice requires that the P be placed under the burden of specifically identifying the origin of both fires in order to recover the damages for which either or both fires are responsible.

Court Distinction: Court would allow a complete defense showing that the NW fire was the of natural origin then the D would not be L (if the D could prove). Most courts reject this distinction, allowing L upon a jury finding that the Ds negligence was a substantial factor in bringing about the harm.

When the fires are roughly the same size and merge, the known D is stuck. Why is this a causation issue---the Ds fire might not have caused this at all…but for the Ds fire, the other fire still could’ve burnt the house down. This is different from Summers, because one definitely did it…here, two fires it could’ve just been one. We’re less comfortable letting someone off if the other person did a wrongful act…

One way of looking at this, is we’re saying, “the $ is going to the P, you two (Ds) fight it out”….2 innocents at play here??? This is also what we say with RIL when a patient is unconscious during surgery…there it was the minority rule, but here it is pretty much a majority rule.

Sindell v. Abbott Laboratories [pp. 336] Facts : P sued 11 drug makers (10 survived, 11th dropped after it proved it

hadn’t manufactured DES until after mother took it) making and marketing DES. The drug was given to mothers supposedly to prevent miscarriages, but it was a carcinogen that causes growth in the daughters of the women taking it and really had no effect on reducing miscarriages. P’s mother took it, she got the cervical and vaginal cancer and sued these 11, admitting that she couldn’t pinpoint the precise manufacturer.

Issues : May a P, injured as result of a drug administered to her mother during pregnancy who knows the type of drug involved but cannot identify the manufacturer of the precise product, hold the maker of and identical formula L?

Procedural History : Trial court dismissed action Rules : P points to Alt L via Summers, but D rejects on grounds that a

predicate to shifting the burden under Summers-Ybarra is that the Ds must have greater access to info regarding the cause of the injuries than the P. Ct rejects this, noting that that Summers doesn’t require greater D knowledge, but that identification of the cause was impossible…as is the case here.

Ct also rejects the D argument that there are a possible 200 manufacturing companies, so bringing in 10 is too few. While court agrees that a strict

Summers isn’t fair (the possibility that any 5 supplied the DES to the mother is remote). Court deals with this by creating:Sindell Rule: Market Share Liability- It is reasonable to measure the likelihood that any of the D supplied the product which allegedly injured the P by the percentage with which the DES sold by each of them bears to the entire production of the drug sold by all for the same purpose of preventing miscarriages.

Reasoning : Under Public Policy, court says the P should have a cause of action because the law has to adapt to changes in science and medicine…justice won’t allow companies to escape L. The formula apportions damages among the defendants; each D is held L for the proportion of the judgment represented by its share of that market unless it demonstrates that it could not have made the product causing the Ps injury. Ds still can cross-complaint against each other

Holding: Under the new rule, each manufacturer’s L for an injury would be approximately equivalent to the damages caused by the DES it manufactured.

Decision: Reversed Dissenting Opinion: The formula is unfair; only the Ds able to be brought

under CA J will bear the cost...those manufacturers who can’t be brought in get off (but under PJ rules, doesn’t the fact that they can’t be brought in assume there’s no stream of commerce or min contacts in the state…meaning the manufacturers can be ruled out as suppliers of the drug…). He doesn’t like it because (1) it treats Ps who used DES more favorably than Ps in routine tort actions (2) It expands deep-pocket theory…A D’s wealth is an unreliable indicator of fault and should play no part in the legal analysis of the problem.

Damages rules resulting from this case: assign damages according to proportion of market share.

When your ability to detect an act goes down, you must up the penalty to maintain a deterrence effect. WITH DETTERENCE, WE’RE NOT REALLY FOCUSING ON CAUSATION AS MUCH AS WHETHER OR NOT THE PERSON DID THE ACTITIVY..THAT’S WHAT WE’RE FOCUSING ON.

If you were a D, which would you prefer, alt L or market share L?It depends. If I was a guilty D with a low market share, I’d want market. If I was innocent and I could prove it, alt L. With alt L, Ds have a chance to show it wasn’t them. Under market share L, the Ds all are going to pay; the issue is how much.

My issue: It lets Ps cherry pick the Ds they want to sue, ostensibly those with the greatest market share, which likely are those with the most money. But the comeback is because they produce so much, it really is a greater chance they sold the drugs…so it’s fair.

Sanderson v. International Flavors and Fragrances [pp. 343]

Facts: P brought a products L action against manufacturers of perfumes and colognes for injuries caused by exposure to the aldehydes in the fragrances (Noir, Stetson, etc.). She couldn’t identify which ones(s) caused her brain damage and deranged sense of smell, so she sued all 7 and asked the court to extend market share L. Court rejected and gave SJ to Ds.

Plaintiff cannot shift the causation burden to Ds under Sindell because P was not injured by a fungible product made by many different manufacturers. Also, P did not join a substantial share of the market for the product she alleges injured her.

The products weren’t the same, so 1 unique product could’ve caused it… Sindell Corollary: The products must be fungible to extend market share L

theory

Proximate Cause

Like a limitation on but-for…but-for could lead to ongoing L, so this kinda puts a period on absurd results. Usually goes to the jury.

A. Foreseeability

In re Polemis [pp. 351] Facts : Polemis was owner of a Greek ship that he chartered to the Ds. While

the Ds were using it, some gas leaked creating flammable vapors, a plank fell on the vapors causing an explosion that destroyed the ship. A panel of arbitrators found that the plank falling was due to the Ds negligence; the justice thinks the cause of the fire was the falling plank.

They reject the D trying to distinguish foreseeablility of the type of damage (which they argue should be considered) from the extent of the damage (which all admit is pretty ballsy); both, they justices say, are immaterial.

This case stands for the fact that: If a D is guilty of negligence, he is responsible for all the direct consequences of the negligent act(s) whether foreseeable or not.

The anticipations of the negligent person don’t matter, and the damages here are not too remote (i.e. no proximate cause problems).

Court says there are two ways to view consequences: (1) the forseeability of the consequences only material w/r/t to the issue of negligence…once negligence established it doesn’t matter (2) the consequences matter regarding the issue of proximate causation

o Both justices appear to believe (1) 2nd writer: once the act is negligent, the fact that its exact operation was not

foreseen is immaterial. You get L here via the direct test-what do mean by direct? Is this different

from the but-for standard? Here, there’s a negligent act, and the harm that follows (so long as direct), then L>

Overseas Tankship (U.K.) v. Morts Dock & Engineering Co.-The Wagon Mound [352]

Facts : Ds were owners of SS Wagon Mound which spilled oil into the harbor as it was getting a fill up; they took no clean-up measures and left. The oil was carried to the Ps wharf where they suspended operation for 2 days…2 days after they started back up, a fire occurred when a piece of oily cotton floating in the water was ignited by a piece of molten metal that fell. The trial judge said that the Ds could not reasonably be expected to have known that it was capable of that.

Court rejects Polemis holding and declares it bad law. A negligent actor shouldn’t be responsible for non-foreseeable acts---it goes

against justice to be L for all consequences, however unforeseeable, simply because they are direct.

They point to the gradual development of foreseeability doctrine in earlier cases, and find that they Polemis court should’ve replaced “direct” with “reasonably foreseeable.”

Driving force for the court is that there should be some limit on the L for a negligent action.

An emphasis on “direct” goes against the idea of blameworthiness (the no L w/o fault idea). “After the event even a fool is wise. It is not the hindsight of a fool but the foresight of a reasonable man that determines responsibility.”

Here there’s a negligent act, harm that follows (so long as foreseeable), L. The foreseeability test is trying to tie the causation standard back to negligence; the things you can be L for need to be the type of things we normally consider when making a negligence determination…if it’s not in that zone then there’s no causation.

The Sequel- Wagon Mound 2 [pp. 355] Facts: A different P, one who hadn’t been involved in its own questionable

contributorily negligent activity like the other P, sued and won. The first P risked c. neg because, if oil in the water was negligent due to the risk of fire, the Ps were negligent too because they continued to work despite the fact that there was oil in the water. BUT, b/c this P wasn’t involved like that, they could argue the foreseeability point via the negligence of oil in the water much stronger—they did and won.

The American View: Kinsman Transit Co [pp. 356] Facts : The Shiras was moored to a dock owned by Continental when ice

began to thaw in the river and came lodged btw the boat and the dock…this built up tension eventually causing the ship to break from the dock and collide with the Tewksbury, causing it to become unmoored as well. Tewksbury sailed downstream where it brought down the tower of a bridge; after the Shiras joined it, they created a dam causing flooding. Some 20 Ps sued the dock owner, Continental, claiming it had negligently maintained the dead man where the Shiras was moored. Ps won.

Whether or not something was foreseeable can often be clouded by hindsight bias

They take the original premise of Wagon Mound but focus on risk rather than forseeability (i.e. whether the D bears the burden by taking a risk with certain activity).

Foreseeability normally works with negligence issues, but when the consequences result on much more than negligence, as is the case here, then foreseeability would never give a P any results.

Ct wants to adhere to the eggshell skull P rule → you take the P as you find him.

Court sees no reason why an actor engaging conduct which entails large risk of small damage and a small risk of other and greater damage should be relieved of responsibility for the latter because it had a small chance of occurrence.

HOLDING : where the damages resulted from the same physical forces whose existence required the exercise of greater care than was displayed and were of the same general sort that was expectable, unforseeability of the exact developments and of the extent of the loss will not limit L.

Doesn’t go with a completely direct or foreseeable test . This isn’t a different in kind problem…it’s just the magnitude of the harm that causes the hiccup. No clear series of test here…so it isn’t that the damage was unforeseeable, but the magnitude…

Friendly tries to limit it by the class of harms that occurs; he frames it in terms of the class of harm, distinguished by magnitude. Boats on a river messing up the flow of water is in the class of harms…but a doctor not being able to see a patient is not.

Doughty v. Turner [pp. 358] Facts : A factory containing cauldrons’ of molten cyanide had cement covers,

that a worker one day knocked into the cauldron it was supposed to be covering; the cover was absorbed by the substance and a few minutes later it erupted, throwing hot liquid on the P. Trial court found that the Ds hadn’t known that the immersion of the cover would cause a chemical reaction/explosion, but the court held he Ds L. House of Lords reversed.

Court rejected P’s argument that the injury of the lid falling into the cauldron and splashing the P was foreseeable, so the explosion caused by the immersion was like a big splash and thus foreseeable. The blast was different in kind because it was not the splash but the disintegration of the cover that caused the explosion. So, it wasn’t foreseeable.

If an act which he does is not one which he could’ve reasonably foreseen if he had thought about it, then it doesn’t matter if he did it inadvertently or intentionally → he can’t be L

This wasn’t the type of injury they were trying to prevent.

Colonial Inn Motor Lodge v. Gray, Ill 1997 [pp. 360] Facts : D was backing up his car in the parking lot of P’s hotel when he ran

into a heating unit protruding from the building; D thought he hit the wall but causes no damage. In reality, the hit severed the gas line, and a resulting leak

was ignited causing the building to explode. Trial court gave SJ to the D but the court of appeals reversed and remanded for trial.

Why there’s a genuine issue of material facto The loud sound was indicative of a substantial impact…even a slow-

moving car can cause substantial harmo The possibility of colliding with a building and disrupting a gas line

isn’t so far fetched or freakish.o If the D’s conduct is a substantial factor in bringing about the injury, it

is not necessary that the extent of the harm or the exact manner in which it occurred could reasonably have been foreseen. Rationale → eggshell skull P rule.

o Remember, all they say is that there’s a genuine issue of material fact...not that the P won

DiPonzio v. Riordan, NY 1997 [pp. 361] Facts : P was a customer at the D’s gas station when he was struck in the leg

by another patron’s car—the patron had left the car running while he ran into pay and the gear shifted while he was away. He sued the D gas station claiming that it failed to enforce its policy that patrons turn off their cars while fueling. D got SJ.

Natural/probable consequences of a vehicle being left running is fire or explosion; NOT this.

This occurrence was outside the scope of the limited class of hazards. “Because this type of accident was not among the hazards that are naturally associated with leaving a car engine running during the operation of a gas pump, the alleged misconduct of Ds employee doesn’t give rise to L.”

There was a negligent act (failing to supervise), but no L b/c the point of having them turn off cars was to prevent fires…not broken legs. It was negligent to not enforce method of fire prevention…not car rolling.

This is a more formal articulation of forseeability…what does the final act have to do with the original act of negligence…if it is in a different category of harm, no L.

United Novelty Co. v Daniels, MI 1949 [pp. 362] Facts : P’s decedent was instructed by his boss the D to use gasoline to clean

its coin-operated machines; while cleaning, a rat, soaked from the gas, ran from beneath the machine to beneath the lighted gas heater where it caught on fire. The rat, on fire, then ran back underneath the machine where it caused the machine to explode, killing the decedent. Trial court gave SJ to the P and D appealed on grounds of insufficient evidence. What result?

You could argue that this was outside the scope of hazard; perhaps the fumes from the gasoline igniting were foreseeable, but this freakish accident was not…The details of the story don’t really matter...an explosion when using gasoline is foreseeable...the mode in which it occurs becomes irrelevant. So L.

This case stands for idea that if you have a negligent act, the precise story in terms of how the flames met the gas doesn’t really matter. If this was the harm that we expected, the precise chain of events that led to the injury don’t matter.

Steinhauser v. Hertz Corp, 2d Cir 1970 [pp. 362] Facts : Ds car crossed the double yellow line and struck the P’s car; no one

was hurt, but the P had pre-psychotic personality which gave a disposition for schizophrenia and the accident triggered the onset of schizophrenia. The accident was deemed the precipitating cause, and the P sued. What result?

This mental occurrence is wholly outside the scope of hazard…but if you take the eggshell skull P rule, this is a classic case.

If you want to argue for L, ppl also suffer emotional injuries from car crashes and that’s not unexpected or unforeseeable.

Counters: triggering schizophrenia is not the type of emotional distress that we can expect…maybe heightened nerves, but not this.

Real Result: L, but it could go the other way. Don’t forget that deterrence rationales are always lurking in the background

(i.e. we want to incentivize ppl to take better care when driving)

Central Georgia Ry. v. Prince, CA 1898, [p. 362] Facts : P was a passenger on D’s train when, due to the conductor’s

negligence, she was not let off at her stop; she had to stay at a hotel with the intention of catching the morning train back to her destination; while at the hotel, she used a kerosene lamp that she left on all night and exploded, catching her mosquito net on fire. She sued the RR for her damages, won at trial, but the appeals court reversed.

The lamp exploding was an intervening cause (the causal chain was broken); there was the interposition of a separate, independent agency in the negligence of the hotel owner, over whom the RR had no control

Pridham v. Cash and Carry Building Center, NH 1976, [pp. 363] Facts : P’s decedent was hit on the head when a clerk in the Ds showroom

untied a rope, sending vinyl panels onto the person and knocking him on his back. On his way to the hospital via ambulance, the driver had a heart attack and crashed into a tree; decedent killed in crash. P won a jury verdict and it was affirmed over D’s claims of an incorrect jury instruction.

Jury Instruction: if the D is L to the P, he is also L for any addtl bodily harm resulting from normal efforts of third persons in rendering aid…so if D was liable to P, then P could collect for all injuries suffered in the ambulance crash so long as they were the result of normal efforts of third persons rendering aid.

Why do we treat this case differently? You put someone in harms way and put them in need of care…getting that care is risky. You’re L for those related risks you place ppl in. BUT, it was a heart attack, not him running into a tree because he was in hurry to get to the hospital…does the fact that ppl are put

into ambulance/the need of rescue w/o consent (vs. a bus driver having a heart attack when you voluntarily got on the bus)…this isn’t a big distinction… the woman didn’t want to be in the hotel when the lamp exploded.

R. § 457. Additional Harm Resulting from efforts to mitigate harm caused by negligence [pp. 364] If the negligent actor is L for another’s bodily injury, he is also subject to L for any additional bodily harm resulting from normal efforts of third persons in rendering aid which the other’s injury reasonably requires, irrespective of whether such acts are done in a proper or a negligent manner. Comment d: the actor is answerable only for injuries which result from the risks normally recognized as inherent in the necessity of submitting to medical, surgical or hospital treatment. He is not answerable for harm caused by misconduct which is extraordinary and therefore outside of such risks.

R. § 460. Subsequent Accidents due to Impaired Physical Condition Caused by Negligence [pp. 364]If the negligent actor is L for an injury which impairs the physical condition of another’s body, the actor is also L for harm sustained in a subsequent accident which would not have occurred had the other’s condition not been impaired, and which is a normal consequence of such impairment.

Berry v. Borough of Sugar Notch, PA 1899 [pp. 365] Facts : P was motorman on a trolley, and he was injured when he was struck

by tree that fell onto the car while driving through the D borough. P claimed the D was negligent for keeping up the tree despite its poor condition. D countered with evidence the P was speeding. What result?]

The contributory negligence claim works only if the D can show that the excess speed caused or contributed to the tree falling (ex. the speed caused more wind/instability in the area…)

Real Result: D still L...the speeding doesn’t count as causation because that doesn’t have anything to do with increasing/decreasing the cause of the accident…the tree would’ve fallen anyways.

Morris Characterization Game [pp. 365]Three Class of Damage w/r/t foreseablity1. the damages are so typical that judges and juries can’t be convinced that they were unforeseeable2. the facts are so freakish that there is no way they can be construed as foreseeable3. the middle ground, where the consequences are neither typical nor freakish; if unusual details held to be significant, the damages are unforeseeable; if held to be non-significant, the damages are foreseeable.

a. Foreseeability can be determined only after the significant facts of the case have been described; if the court describes them generally, recovery…if in great detail no recovery. Thus, this class is fluid and does not allow accurate prediction

Posner, Economics of CausationSometimes there are accidents with negligence and causation, but no recovery. This is because the risk of the accident is not part of PL, the expected accident cost the railroad could have prevented by taking B precautions. Or you can say that due to the complicated nature of the accident, the high costs of information prevented a party from taking any precautions against the particular accident that occurred.

B. Intervening Causes

Brauer v. NY Central, NJ 1918, [pp. 368] Facts : One of Ds trains collided with the P’s wagon. In the aftermath of the

accident, P’s wagon was robbed with multiple items being stolen. P sued to recover for the stolen goods.

Issues : Can P recover for the stolen goods? Procedural History : The trial court ruled for P. Rules : The act of a third person, intervening and contributing a condition

necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer if such act ought to have been foreseen. In short, if the third party actions were foreseeable, the causal chain remains in intact.

Reasoning : What happened here was foreseeable…the P was shook up from the accident and couldn’t be expected to tend to the vehicle. Ppl therefore looting wasn’t out of the ordinary.

Holding : The act of thieves did not intervene btw the D’s negligence and the P’s loss; the two causes were concurrent…it’s a joint tort rather than an intervening cause

Decision : Affirmed Dissenting Opinion : The collision wasn’t the proximate cause; the thieves

broke the causal chain. You can’t say that criminal intervention should’ve been foreseen → this implies a presumption of crime and that’s contrary to the rule of law.

Court uses L of foreseeability

Watson v. Kentucky & Indiana Bridge RR, KY 1910 [p. 369] Facts : The D’s car derailed spilling its cargo of oil onto the streets. A man

either (1) lit a match to light his cigarette or (2) maliciously lit his cigarette in efforts to see an explosion; either way an explosion occurred. P sued the D after his house was destroyed and he was injured in the ensuing blast. Trial went for D SJ, ct of appeals reversed finding that the D’s L depended on how the man started the fire, which was a question for the jury.

If (1) occurred, then a match being lit for cigarettes was foreseeable and there is no intervening cause. L for D.

If (2) occurred, then the malicious act was not foreseeable and the causal chain is broken. No L for D.

Is this just an example of being lucky…they created a risk of something but get off b/c of some other idiot…goes back to how much a deterrence argument is at play.

Distinguishing These CasesSpilling gasoline and someone lighting a match v. looters; so if the train had stalled and a bandit came on and shot ppl, the train wouldn’t be L…does it go to the ease with which the crime happens (a random, easy crime like looting vs. a shooter which would probably have to be a premeditated crime).

Village of Carterville v. Cook, IL 1889, [pp. 370] Facts : The village kept a sidewalk that the P was walking down when he was

jostled by a passer-by, causing him to fall. He sued the D city, on grounds they were negligent for not maintaining railings. Jury went for P and appeals affirmed.

The passer-by was not an intervening causeo one of the reasons you have a railing is because ppl get jostled and

are pushed off…the scope of L defined by the type of harm intended to prevent against

Alexander v. Town of New Castle IN, 1888, [pp. 371] Facts : P engaged in a game to get Heavenridge to commit a crime; upon this

happening, it did a citizen’s arrest on Heavenridge. In process of bringing him to the station, Heavenridge grabbed P and threw him in an open pit that the D city had dug in the street. P sues D for negligently failing to enclose the pit. D won.

Heavenridge was an intervening cause AND an independent human agency.

R. § 449. Intentionally Tortious or Criminal Acts Done under Opportunity Afforded by Actor’s Negligence [pp. 371]The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefore, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.

R. § 449. Tortious or Criminal Acts the Probability of Which Makes Actor’s Conduct Negligent [371]If the likelihood that a third party may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious or criminal does not prevent the actor from being L for harm caused thereby.

Scott v. Shepherd, “the squib case” KN 1773, p. 371 Facts : D tossed a lighted firecracker into a crowded market; it was passed

from Willis to Ryal and finally tossed in the P’s face (men were passing it to protect themselves). P sued the D, the original thrower and he won.

Any innocent person removing the danger from himself was justified and the blame remains with the initial thrower.

The middle throwers were not free agents but ppl acting under compulsive necessity

o Similar to Laidlaw case with man throwing his clerk in front of his body to save him…self preservation is like the ultimate defense

The Roman Prince NY, 1931, [p. 372] Facts : P was in a cabin of a barge when it was struck by the D’s steamship;

rather than leave, she didn’t think it was sinking and stayed in her room, It wasn’t until an ½ hour later when the water was coming on the deck that she tried to leave, in the process stumbling and hurting her knee. She sued D. Trial gave SJ to D.

Her failure to leave quickly was the intervening cause; if there had not been time to deliberate and make a decision, then the D would be L. This wasn’t the case here.

Thompson v. White AL 1963, p. 373 Facts: P was injured when her car was struck from behind by White; she sued

the D, a nearby gas station, claiming that the clowns it had out front distracted White and caused him to hit her car. Trial court gave SJ to D, but S.Ct. reversed and remanded for trial.

White being distracted (note they assume he was distracted by the clowns relying on the idea that the P too was distracted), he was not a free agent but was acting under the influence of the clowns

His negligence only can amount to a concurring cause and not an independent intervening cause.

The What Result Game!Johnson v. Kosmos Portland Cement Co, 6th Cir 1933, p. 373

D owned a barge that had been previously used to haul oil and oil reside was left over; he then hired P’s decedent to work on the ship using a torch; an explosion occurred. The oil was ignited by lightning that struck the boat. Trial court found the D’s negligence was not the proximate cause. What result]

the causation is easy…it was neg to have the barge filled with gas fumes; we don’t care what triggered the explosion, it exploded so L.

lightning

Henry v. Housing Lighting and Power Co, TX 1996, p. 374 Ds employees were drilling a hole in a utility pole when they negligently

severed a gas line; they called in the P to fix the broken line. Meanwhile,

mosquito foggers were working nearby causing fog to drift into the manhole where P was working; P mistook the fog for smoke, thought there was a fire, freaked out b/c of thought hat the fire would ignite the leaking gas, ran out of the hole erratically…into a tree. Trial gave SJ to Ds.

Suppose the person had gone done a spark happened and died…L. Suppose same facts but now the P has warning, gets out and starts running and injured while running...L. There was but-for, and the injury isn’t exactly tied into the harm we’re worried about. What’s the D argument: this wasn’t the harm they considered; mistaken harm isn’t recoverable…. HERE, the court sent it back to the jury because it might be L; Roin suspects that more often than not the P would’ve lost.

Clark v. E.I. DuPont, KS 1915, p. 374 D was hired to assist in drilling an oil well, when he left behind a pail of the

explosives used; the work was done on the McDowell farm, and one of the McDowells found it and took it to the graveyard for keeping by hiding it in a crevice (after his mom said he couldn’t have the dangerous stuff near the home). Two years later, the Ps found it, thought it was animal fat, and were injured from the explosion that happened after they touched it.]

Outcome: they are still liable because they created a risk of danger and harm occurred; the timing is coincidental. It could have happened the next day. flaming rat analysis. It doesn’t matter how it happened, but it remains that an explosion was the precise type of risk that should’ve been foreseen. If the son would’ve been someone who knew how to dispose of the glycerin, there would’ve been a case of negligence against him.

Side point-the son probably didn’t owe any duty to the 2 children so he likely escapes liability. no rule that if you find explosives you have a duty to dispose of them in a safe manner…similar to the idea that you don’t have a duty to help people

Richardson v. Ham CA 1955, p. 374 Facts : Ds were using a bulldozer for construction work when they negligently

left it unlocked. A group of drunkards came by and played with it, eventually sending it over the edge causing damage to the Ps property. Ps sued the D. Jury went for D, judge granted P’s motion for a new trial.

Similar to Brauer? It was foreseeable that someone could come and steal the goods…it’s just chillin on the highway. You should lock it because bad things will happen otherwise (kinda similar to the attractive nuisance doctrine…it’s predictable).  But a distinction here…it was  third party, not the drunkards, suing the owners….opposite argument…having a bulldozer unlocked still doesn’t make it particularly likely.

Farmiliant v. Singapore Airlines, ND 1983, p. 375

P bought a trip to Madras taking several connecting flights/stop-overs along the way. He attempted to make changes to his itinerary; at one point he ate at a local place and got sick; he tried to get home and the airline couldn’t accommodate him. He had to go to another airline and was hospitalized for 12 days when he got back.

Possible Result??? Assuming the airline was negligent, the bad food at the local place was still an intervening cause. No L.

Bell v. Campbell TX 1968, p. 375 D was on the highway when she pulled out w/o looking; a vehicle driven by

Marshall’s company struck her, causing the truck to go off the road and the trailer Marshall was carrying to overturn on the highway. The Ps decedents were helping to overturn the truck (after flashlights had been used to warn ppl), when Fore struck and killed the workers working in the street. They sued Campbell and Marshall as the cause of the original accident.

Possible Result??? L according to the Paradigm DCE; it is foreseeable that rescue workers would be injured in the process of helping with the accident…the only way they can’t is if the good Samaritans can’t replace official emergency responders….

Grady’s Classification Scheme1. Paradigm NIT, no intervening tort: The D was negligent and no subsequent tortious act intervened btw the D’s negligence and the P’s harm. L.2. Paradigm DCE, dependent compliance error: The D negligently made the P specially vulnerable to someone else’s ordinary negligence (i.e. compliance error) or emergency response. L.3. Paradigm EFR, encouraged free radicals: The D negligently created an unusually tempting opportunity for irresponsible third parties to do harm. L.4. Paradigm NCP, no corrective precaution: A third party willfully failed to take a corrective precaution to prevent the D’s negligence from causing harm. No L.5. Paradigm IIT, independent intervening tort: A third party committed an intervening wrong that was independent of the D’s negligence. No L.

Limitation of Duty: An Alternative Approach

Palsgraf v. Long Island RR [pp. 377] Facts : P was standing on the platform. The train came, and two men ran to

catch it; the first made it on; the other was carrying a large package and he seemed unsteady like he was going to fall; the guard on board reach to help him and the guard on the platform pushed him on from behind; the package (which unbeknownst to everyone contained fireworks) was dropped and exploded).

Majority—No Recovery. No negligence. The conduct of the D’s guard was not negligent w/r/t to the P → there was no notice of the potential harm.

According to Cardozo, a precursor to determining liability is to decide whether the plaintiff had a duty not to take that particular action. Tight chain of causation. The results are not foreseeable

The understanding has to take place in context; negligence isn’t a tort unless it results in the commission of a wrong and the commission of a wrong imports the violation of a right (right to bodily security)…..but if the harm wasn’t willful there must be a showing that the actor had in front of him such a blatant possibility of danger

No duty. For L to occur there must be a duty owed and here there was no such duty; no reasonable man would’ve done more. Context matters when defining a duty → it goes to the scope of the risk and the attendant circumstances, which add to the L. Nothing would’ve suggested danger to the reasonable man.

o Ex. If you bump into a man carrying hidden explosive, the blame doesn’t got to you, but to the man when the explosion occurs.

Causation- No need to touch causation; because no tort (no duty to be breached, no negligence)

Dissent: Negligence- They place the act of negligence on the D’s worker knocking down the package. He points to examples of abstract negligence (the husband suing for the loss of his wife-no duty to husband, but we allow him to recover). Duty- He rejects the idea that you have to first establish a legal duty; because the act itself is wrongful, it doesn’t matter who was owed a specific, particularized duty. You have an ongoing duty to the public at large. Causation- He emphasizes the fact that this was the proximate cause. Cites to Polemis, The act being wrongful, the doer was L for its proximate results.

o His Rule- Everyone owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others. Such an act occurs. Not only is he wronged to whom harm might be reasonably expected to result, but also to those who in fact are injured, regardless of whether they would be thought to be outside the zone of danger.

We can’t rely so much on foreseeablity…it is immaterial if the actor believed the scope of his harm was limited in some way.

P. 384, factors of consideration in determining proximate causeo Was there a natural and continuous sequence btw cause and effecto Was the one a substantial factor in producing the othero Was there a direct connection btw them w/o too many intervening

causeso Is the cause likely to produce the result, in layman judgmento By the exercise of prudent care could the result be foreseeno Is the result too remote

DEFENSES

Categories of Defenses1. The plaintiff was negligent.2. The plaintiff assumed the risk of the harm that occurred.

a. The plaintiff expressly assumed the risk by agreement.b. The defendant had no duty to protect the plaintiff from the harm suffered

because the risk was inherent in an activity the plaintiff chose to undertake.c. The plaintiff chose to encounter a risk negligently created by the

defendant.

A. Contributory and Comparative Negligence

Contributory Negligence (All or Nothing)Common Law Rule: A plaintiff whose own negligence contributed to their injuries cannot recover anything from a defendant whose negligence also contributed to them.

The negligence standard is the same for the Pl and Def. However, courts had a practice of being more lenient when judging Pl’s behavior because of the “all or nothing” nature of the doctrine. The slightest negligence of the Pl could preclude recovery.

Rationale: (1) Pl should be punished for his misconduct (2) Pl should be deterred from injuring himself, (3) Pl’s negligence supersedes Def’s and renders D’s negligence no longer a proximate cause.

Harris v. Meadows (1985) [pp. 565]

Facts: Plaintiff, Harris, was driving down an avenue and Defendant, Meadows was driving in the other direction. Def started to make a left turn in front of Pl. Pl blew her horn, applied her brakes, and moved over to the right a little. The cars collided. Pl sues for costs of her injuries. Def claims contributory negligence.

The Pl admitted that she never attempted to come to a complete stop. Standard: Did Pl fail to act reasonably under the circumstances to avoid the

accident? Holding: Judgment for Def. Pl guilty of contributory negligence.

Last Clear Chance DoctrineThe Pl can recover despite committing contributory negligence if the Def had a sufficiently good opportunity to avoid the accident at a point when the Pl did not.

Typically requires a showing that the Def saw the Pl or had some other notice of him but failed to avoid inflicting injury.

Reduced the harshness of the contributory negligence rule. Not that important since Contributory negligence isn’t used in many

jurisdictions any more.

Rationale: (1) the later negligence of the Def involves a higher degree of fault or (2) the Pl’s negligence is not a proximate cause of the harm to him because the later negligence of the Def is a superseding cause.

Rest §479 & §480 [pp. 569-570] Pl can recover if the Pl is unable to avoid injury by reasonable care and the

Def is negligent in failing to utilize with reasonable care the opportunity to avoid the harm.

If Pl can avoid danger he can only recover if Def knows of Pl’s situation and fails to exercise reasonable care.

Davies v. Mann (1842) [pp. 568] Facts: Davies left his donkey tied up by the side of a highway. The Def’s

wagon ran over the donkey and killed it. Holding: The donkey was wrongfully placed there, but the Def had a duty to

travel at a reasonable speed.

Comparative NegligenceMost states have switched to this standard. This doctrine reduces the damages paid based on Pl’s negligence, but does not preclude recovery altogether.

Pure Form : plaintiff’s damages are reduced in proportion to the percentage negligence attributed to him

Modified Form : Plaintiff recovers in the same way as in pure jurisdictions, but only if the plaintiff’s negligence either:(1) does not exceed the defendant’s negligence (50% jurisdictions) or(2) is less than the defendant’s negligence (49% jurisdictions)

What is Being Compared? Several possibilities. . .1. The negligence of each party2. Causation: Whose conduct made a greater causal contribution to the accident

a.Example: A car and a truck collide. The momentum of the truck contributed 95% of the force that injured the motorcyclist. However, the motorcyclist was drunk and speeding. Who should recover depends on what you are comparing.

3. Some states charge juries to compare both, as well as several other factors (i.e. reasonableness of conduct, last clear chance situation, emergency situation, etc.). See pp. 576.

Comparative negligence, like contributory, is generally not a defense to an intentional tort claim.

o Contributory negligence: Did not deprive Pl of recovery in cases where Def’s conduct is wanton, reckless or otherwise worse than negligent.

o Comparative negligence: Pl’s negligence may be compared against worse conduct by the Def.

o Some jurisdictions allow balancing against gross negligence, but not “willful and wanton” conduct

McIntyre v. Balentine (1992) [pp. 571] Facts: B’s tractor collided with M’s pickup truck causing M injuries. M sued B.

B was intoxicated and M had been speeding. Exceptions to Contributory Negligence (TN): Recovery is not completely

barred when:o Def’s conduct was intentionalo Def’s conduct was “grossly” negligento Def had the last clear chance

Court decides to adopt comparative negligence-the modified form.

Efficiency/Economic Analysis: Contributory v. Comparative Negligenceo Goal: to find rules for accident liability that minimize the sum of all costs:

costs of accidents and costs of precautions and of litigation. o Possible Implication: the law should try to induce the party who can prevent

an accident at least cost to take precautions against it.

Balancing: In comparative negligence, the court will use old contributory negligence rules as mere factors for consideration (i.e. secondary assumption of risk, open and obvious risk). Often, the court will allow a jury to balance considerations.

Manning v. Brown (1997) [pp. 578]o Facts: Pl and her friend take a joyride. Neither have licenses or permits and

they take turns driving. While the friend was driving she swerved and hit a pole. PL sues friend and owners of car for negligence.

o As a matter of public policy, where a Pl has engaged in unlawful conduct, the courts will not allow recovery if the Pl’s conduct constitutes a serious violation of the law and the injuries of the Pl are the direct result of the violation.

o This is a comparative negligence jurisdiction, but that rule isn’t applied. The rule regarding serious illegal action throws you back into a contributory negligence regime.

Fritts v. McKinne (1997) [pp. 579] Facts : Fritts was drunk one night and drove his care into a tree. He was

taken to the hospital and McKinne performed a procedure on him. Fritts suffered a ruptured artery and bled to death. Fritts’ widow sued McKinne claiming that he negligently cut the artery while performing the procedure. McKinne asserted a comparative negligence defense on the basis that Fritts was responsible for his own death because of drinking while driving.

Held : A physician cannot avoid liability for negligent treatment by claiming contributory negligence for patient’s role in getting initial injuries.

This is a comparative negligence jurisdiction, but that rule isn’t applied. Directness has been severed. The negligence of the doctor is not tied to the illegal activity.

Policy Rationale: Too many ppl end up in the hospital because of their own negligence; we still want doctors to treat them without negligence.

Ouellette v. Carde (1992) [pp. 579] Facts : Carde was repairing a car and was injured. He called his neighbor

Ouellette and she came to assist him. While leaving the garage, the gasoline that had spilled earlier was ignited and an explosion occurred. Ouellette sued Carde for negligence. Carde attempted to make a contributory negligence defense.

Held : No comparative damage calculation (i.e. contributory negligence defense) when a person is attempting to save another’s life unless the person was rash or reckless in the rescue attempt.

Alami v. Volkswagen Facts : A man was in a cra accident. He had a blood alcohol content above the

limit. His widow sued VW alleging that his injuries were increased because of a defect in the car’s design. VW cited a defense based on Manning v. Brown. What result?

On the one hand, you do not want to allow people to recover when they are engaging in seriously illegal activities. On the other hand, you want to regulate car defects by placing liability on the car company.

Van Vacter v. Hierholzer Facts : Van Vacter had high cholesterol and a history of heart attack. He did

not follow his doctor’s instructions. Several years later he went to the hospital for chest pains and was released. He died a few hours later. His widow sued the doctor for negligence and the doctor asserted a defense of contributory negligence.

It is commonly the case that a person’s lifestyle choices are the causes of their health concerns. This would basically give a free ticket to doctor’s to engage in negligence. You do not want to allow this. The fact that he contributed to his own death might come into play in the damages calculation in the form of shorter life expectancy and future earnings.

B. Express Assumption of Risk

A claim not that the plaintiff was negligent, but that he assumed the risk of harm that occurred and should be barred from recovering. 3 Types of Assumption of Risk

1. The plaintiff expressly assumed the risk by formal agreement2. The defendant had no duty to protect the plaintiff from the harm because the

risk was inherent in an activity the plaintiff chose to undertake3. The plaintiff chose to encounter a risk negligently created by the defendant

(rare)

Van Tuyn v. Zurich American Ins. Co. [pp. 581] Facts : The plaintiff decided to ride a mechanical bull at a club. She told the

operator to go slow because she had never done this before. He agreed. Pl signed a release, which she did not read. Pl rode the bull and it began to speed up. She was thrown to the floor an injured.

Proc History : Pl brings suit against establishment claiming the bull operator negligently operated the mechanism that regulated the bull’s speed.

Held : An exculpatory clause can only absolve a defendant of liability arising out of his/her own negligent acts if the clause clearly states such.

Exculpatory clauses need to say “I waive liability for injuries resulting from negligent conduct.” If it just says I waive liability, courts will read this narrowly.

Manning v. Brannon [pp. 582] Facts : Pl went skydiving. He signed a detailed release that included a release

from liability arising from Def’s negligence. Pl’s parachute malfunctioned and he sustained injuries.

Held : The release was enforceable. The court considered: equality of bargaining power, the necessity of the activity to the Pl, and the amount of choice Pl had in alternatives.

Anderson v. Erie Ry. Co. [p. 583] Facts : Anderson bought a reduced fare ticket to ride on Def’s railroad. The

ticket had an exculpatory clause relieving Def of liability (including liability arising from its own negligence). The train derailed and Anderson was killed.

Held : The release bars recovery. The reduced fare was in consideration for release of liability.

This is an exception to the common law rule: if a passenger signed a release promising not to sue a common carrier for injuries suffered as a result of the carrier’s negligence, the release was void.

Market dynamic: You should be able to pay less or more for the option to have more/less coverage in the case of negligence. This might create concern about poor people having to buy the less expensive ticket.

Hand formula for the railroad case from the perspective of the social planner-the cost of precautions for the railroad and the benefit to the customer

Tunkl v. Regents of the University of California [pp. 584] Facts : Tunkl was admitted to the UCLA Medical Center and he signed a

release that stipulated that the hospital was a nonprofit organization and in consideration of the rates the patient release the Def from liability “from any and all liability for the negligent or wrongful acts” of the Def and its employees.

Held : The release was unenforceable. An exculpatory provision of this sort may be unenforceable if it involves “the public interest.”

o Factors to Consider: business suitable for public regulation; service of great importance to public (often matter of necessity); open to almost any member of the public; party has advantage in bargaining power; standardized adhesion contract with no provision for additional payment to protect against negligence; the person or property is placed under the control of the seller.

o Hospital-patient contract is always of the public interest.o Rule applied broadly in the employer-employee relationship. Also in

situations involving public utilities and common carriers. The court believes it is not okay for a patient to waive liability when entering

a hospital because the patient cannot chose to not use these services (bargaining power), the general public uses this business; also, the nature of the business (hospital) causes courts to not want to lessen liability.

Rest §496B Express Assumption of Risk [pp. 587] A plaintiff who agrees to an exculpatory clause (regarding Def’s negligence)

cannot recover unless the agreement is valid for public policy. It must appear that the plaintiff assents to the terms of the agreement and he

understands him. It must appear that the phrase was meant to apply to negligent conduct.

Shorter v. Drury [p. 588] Facts : A Jehovah’s Witness undergoes a medical procedure with a risk of

bleeding. She signed a document stating that she did not want to receive a blood transfusion. The patient died. The husband sued for wrongful death claiming the doctor performed the procedure negligently and so the release did not apply.

What Result ? Release is enforceable.

Vodopest v. MacGregor [p. 589] Facts : Plaintiff participated in a medical research trip. She signed a release

regarding all dangers arising from the trip. She suffered altitude sickness and was told by the group leader that she would be fine. She was later sent down from the mountain and suffered permanent brain damage. She sued the trip leader for negligent conduct for not advising her to leave when she first displayed symptoms.

What Result : Plaintiff was not barred from recovery because this was a medical research trip so the exculpatory clause was void for public policy. Similar to hospital-patient situation.

C. Primary Assumption of RiskA doctrine that prevents a plaintiff from recovering for injuries suffered when they freely undertake dangerous activities. This doctrine prevents the plaintiff from making out even a prima facie case of liability. It amounts to saying that the

defendant had no duty to protect the plaintiff or that the Def did not breach whatever duty existed.

Murphy v. Steeplechase Amusement Co. [pp. 590] Facts : Plaintiff and friends get on a ride entitled “the Flopper” that is a

moving belt and typically throws people to the ground. Plaintiff and friends observed the ride for some time before getting on it. Plaintiff injures his knee cap after he feels a sudden jerk and is thrown to the floor. Plaintiff sues on the basis that the ride was dangerous because of its violent starting and stopping and not properly equipped with rail or other device to prevent injury.

Volenti non fit injuria : When you take part in sports, you accept the inherent risks of the activity given that they are obvious and necessary. I.e. tackle football. If you get injured, there is no liability.

Woodall v. Wayne Steffner Productions [pp. 592] Facts : Woodall was hired to perform a stunt-he would be pulled behind a car.

He stipulated that he wanted an experienced driver and that the driver could not drive above 30 miles per hour. The Def hired a first-time driver and the driver drove over 45 miles per hour. Pl was injured and sued. Def claimed that Woodall should be barred from recovery because of assumption of risk.

Held : Plaintiff can recover. If plaintiff surrenders his better judgment upon an assurance of safety or a

promise of protection, he does not assume the risk, unless the danger is so obvious and so extreme that there can be no reasonable reliance upon the assurance.

Cohen v. McIntyre Facts : Defendant owned a dog that had bitten 3 people. She took the dog to

Cohen to have him neutered and the dog snapped at Cohen. They applied a muzzle for the procedure. After the procedure the dog bit Cohen. He sues Def alleging that she never made him aware of the dog’s history.

Holding : No recovery for Cohen. Def owed no duty of care to Cohen unless she engaged in intentional concealment or extraordinarily reckless behavior.

Neighbarger v. Irwin Industries Facts : Employees of Irwin were doing work and negligently tried to unplug a

valve with a sharp instrument. The valve released flammable petroleum. Pls, safety supervisors, tried to close the valve and the petroleum ignited a burned them. Pls sue Irwin. Irwin claims assumption of risk.

Holding : Pls can recover. They did not assume the risk of this accident. The case describes the safety employees as third party so it is implied that

they are not being paid by the defendant. This is how Irwin is distinguished from the vet case where there is a contractual relationship and the vet is getting paid for services and assuming a certain amount of risk just like the

firefighters are assuming the risk of injury in exchange for a salary paid by public taxes.

There is the idea that you want to incentivize people to avoid those industrial accidents that can be avoided. On the other hand, fires are looked at as being largely inevitable and it is burdensome to trace the cause to a particular person’s negligence.

The doctrine is thought to be a tool to prevent employees from being able to sue their employers.

Hendricks v. Broderick [pp. 595] Facts : B and H both went turkey hunting in the same area not knowing the

other was there. B heard what he thought was a turkey and began making response calls to lure the turkey. B then heard a rustling and he shot in that direction. It was really H.

Held : Question must go to the jury whether H was contributorily negligent in entering the area where B was calling. Ordinarily, a hunter does not assume the risk of being negligently shot when he goes hunting.

D. Secondary Assumption of the Risk and the Rise of Comparative Fault

Arises when the defendant does have a duty to the plaintiff and may have breached it; as an affirmative defense the Def argues that the plaintiff recognized whatever danger resulted from the Def’s alleged negligence and voluntarily chose to encounter it.

Common law rule was that a plaintiff who assumed the risk in this sense was barred from recovery, like in contributory negligence.

Most courts now treat this as a comparative negligence case.

Kennedy v. Providence Hockey Club [pp. 599] Facts : Pl attended a hockey game and was hit in the face with a puck. Pl

knew that pucks often flew into the crowd and normally sat in the farthest seats from the rink, but they were sold out on this day. The only seats left were in the fourth row.

Holding : Pl cannot recover because she voluntarily assumed the risk that led to her injury.

o The availability of seats does not make her choice any less voluntary. It is not a large burden to miss the game.

Hennessey v. Pyne Facts : Pl lived in a condo next to a golf course. While outside her home she

was hit on the head by a golf ball that had been struck by Def. She sued to recover for her injuries. Pl claimed that Hennessey negligently hit the ball and negligently failed to call out a warning. Both parties knew golf balls often flew onto Pls property.

Holding : Whether she voluntarily assumed the risk is a question for the jury.

High-cost alternatives: not go outside her house or to move. Jury may find that she did not assume the risk because she did not have a choice (i.e. reasonable alternatives). In Kennedy, hockey-puck case, it is not a large burden to miss a hockey game; therefore, she assumed the risk. Also, there is the consideration that Hennessey assumed the risk of flying golf balls, but not of golfers failing to shout warnings.

Fagan v. Atnalta [pp. 600] Facts : Pl was a customer at a bar staffed by 2 female employees. An

altercation occurred between 4 customers and the female employees attempted to get the customers to move outside. Pl attempted to assist the female bartender in an attempt to prevent her from being dragged outside. Pl then was beaten up by the rowdy customers. Pl sues the bar owner claiming he was negligent in failing to take appropriate security measures given an extensive history of assaults there.

Holding : Pl assumed the risks of his injuries. He had a clear choice of alternatives.

Marshall v. Ranne [pp. 602] Facts : Pl was neighbors with Def. Def’s boar got loose and remained loose for

several weeks. The boar terrorized Pl and his wife. Eventually the boar bit Pl. Pl sued Def for injuries and Def claimed assumption of the risk to reduce damages.

Held : Pl entitled to recover. The dilemma that the Pl faced-to surrender rights with respect to his real property or to face the danger of the boar-was not, as a matter of law, the voluntary choice to which the law entitled him.

Rest § 496(e) [pp. 603] Pl must voluntarily accept the risk to assume it. Pl’s acceptance is not voluntary if Def’s tortuous conduct left him no

reasonable alternative to avert harm to himself or another or exercise a right of which the Def has no right to deprive him.

VIII. PRODUCTS LIABILITY

A. HISTORICAL DEVELOPMENT

MacPherson v. Buick Motor Co. (1916) [pp. 447] Facts: Defendant (automobile manufacturer) sold car to a retail dealer who

resold to the Plaintiff. The car collapsed and the plaintiff was injured. One of the wheels was made of defective wood, but the defendant purchased it from another manufacturer. There is no evidence that the defendant knew of the defect, but it could have been discovered by reasonable inspection.

Proc History: Plaintiff brings a claim of negligence. Issue: Did the defendant owe a duty of care and vigilance to anyone but the

immediate purchaser (the retail dealer)?

Rule: If the nature of a thing is such that it is reasonably certain to cause danger when negligently made, then its nature gives warnings of the consequences to be expected. If there is added knowledge that the thing will be used by persons other than the purchasers (without additional tests) then, irrespective of contract, the manufacturer is under a duty to make the thing carefully.

o There must be knowledge that danger is probable. (This may be a question for the court or the jury).

o There must be knowledge that in the usual course of events the danger will be shared by others than the buyer. (Often inferred from the nature of the transaction.)

o Proximity of the relation is a factor; knowledge of danger and use may not be enough.

Analysis: The nature of an automobile gives warning of probable danger. Also, the defendant knew the car would be used by persons other than the buyer (the buyer was a retail dealer and there were seats for 3 persons). A

o As a manufacturer of automobiles, defendant was responsible for the finished product. It cannot rely on the wheel manufacturer; it should subject the component parts to ordinary tests.

o The more probable the danger, the greater the need of caution. o It is not necessary for an automobile to be classified as inherently

dangerous; when constructed improperly it is a dangerous thing.

Escola v. Coca-cola Bottling Co. (1944) [pp. 454] Facts: Plaintiff, a waitress, was injured when a bottle of coke broke in her

hand. Proc History: Pl sues Defendant for negligence in selling the bottle that was

likely to explode either due to defect or to excessive pressure of gas. Analysis: the charging of the bottle was within the exclusive control of

Defendant. It is a matter of common knowledge that an overcharge would not ordinarily result without negligence and that a bottle defect would not ordinarily result without negligence.

o If due care had been exercised, the defect would have been discovered (there were infallible tests to detect defects in bottles). Therefore, the Plaintiff can use res ipsa loquitur to supply an inference of negligence.

Concurring Opinion: Favoring strict liability for defective products regardless of privity whenever a manufacturer places a defective product on the market.

Greenman v. Yuba Power Products, Inc. (1963) [pp. 457] Facts: Plaintiff bought a Shopsmith. He used it and a piece of wood flew out

of the machine and struck him on the forehead inflicting injuries. Proc History: Plaintiff sues retailer and manufacturer for breach of warranty

and negligence. Analysis:

o The notice requirement of section 1769 (regarding warranty claims) does not apply to personal injuries and notice to remote sellers.

Plaintiff’s cause of action is not barred for failure to give notice to manufacturer within a certain time period.

o A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to human beings.

o Policy Rationale for Strict Liability for Manufacturer Defects: Manufactures should bear the costs because they are better able to protect against such defects then consumers.

Not necessary for the plaintiff to establish an express warranty.o To establish manufacturer’s liability, it was sufficient to prove an

injury while using the tool in a way it was intended due to a defect.

Rest §402a. Special Liability of Seller of Product for Physical Harm to User or Consumer

One who sells any product in a defective condition unreasonably dangerous to the user is subject to liability if the seller is engaged in the business of selling such a product and it is expected to and does reach the user without substantial change in the condition. This occurs regardless of whether there is privity (a contractual relation with the seller).

Statutes Immunizing Nonmanufacturing Sellers or Distributors from Strict LiabilityEnacted in many jurisdictions. Immunization from strict liability is granted only if:

1. The manufacture is subject to the jurisdiction of plaintiff’s domicile2. The manufacturer is not, nor likely to become, insolvent3. A court determines it is highly probable the plaintiff will be able to enforce a

judgment against the manufacturer.

B. MANUFACTURING DEFECTS

When the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product. ALI Rest (Third) of Torts §2

Restatement (Third) (1997) §2 comment a. [pp. 463] The rule for manufacturing defects is strict liability without fault. This is

regardless of whether the manufacturer’s quality control efforts are reasonable or not..

Strict liability fosters several objectives:o Encourages greater investment in product safetyo Discourages the consumption of defective products by causing the

purchase price of products to reflect the cost of defectso Reduces transaction costs for plaintiffs in litigating the issue by

eliminating the issue of manufacturer fault

Strict liability in manufacturing defects is similar to res ipsa loquitur: cases where it would be difficult for the plaintiff to prove their case.

Manufacturers invest in quality control at chosen levels. They have knowledge that a predictable amount of flawed products will enter the market.

As Between Two Innocents: Between the wholesaler/retailer and the customer, the product sellers are in a better position to ensure against such losses. The wholesaler/retailer will likely be able to pass liability costs up to the manufacturer.

Welge v. Planters Lifesavers Co. (7th Cir. 1994) [pp. 464] Facts: Welge, plaintiff, was injured when a planters peanut jar shattered as he

placed the cap back on it. His hand suffered permanent impairment. Proc History: Plaintiff sues K-Mart(retail seller), Planters (manufacturer of

product), and Brockway (manufacturer of glass jar). Defs moved for summary judgment. Motion granted.

Issue: When was the defect introduced? Defs claim that Pl’s landlord could have introduced the defect by taking a

knife to the jar to remove the label. However, she did so to obtain a rebate.o K-mart could not avail itself of the product misuse defense because it

invited the very behavior that was in question for misuse.o The other parties would have been able to use the misuse defense.o The misuse defense would not have eliminated liability; it is a

comparative negligence defense. Plaintiff is not required to exclude every possibility that the defect which led

to the accident was caused by someone other than one of the defendants. o Res ipsa loquitur says that an accident that is unlikely to occur unless

the defendant was negligent is circumstantial evidence that the defendant was negligent.

o Evidence excludes all reasonable possibility that the defect was introduced after Godfrey (landlord) purchased the jar.

Accident as Evidence of Liability: If it is the kind of accident that would not have occurred unless a defect were present, and it is reasonably certain the defect was not introduced after the product was sold, then the accident is evidence that the product was defective when sold.

Strict liability: a seller is subject to liability for defects in his product even if the defects were introduced, without his fault in discovering them, at some earlier stage of production.

o K-Mart sold the defective jarK-Mart is liable. Holding: Reversed and remanded. K-Mart can be held liable. No need for the

Plaintiff to look further for a tortfeasor.

Magrine v. Krsanica (1967) [pp. 471] Facts: The plaintiff was injured when her dentist was administering an

anesthetic and the needle broke off in the plaintiff’s gum.

Proc history: the parties stipulated the needle broke as a result of a latent defect and the dentist was not negligent. JMOL to the dentist. No liability.

The dentist was not in a “better position” than the plaintiff to discover the defect.

“Risk Distribution Theory”: Manufacturers are better able to absorb risk and costs of liability, possibly through insurance. This is not true for single dentists/doctors. If the dentist/doctor were to obtain insurance, the cost would pass to the patients through increased fees.

If this rule of liability were adopted, it would extend to any user of a tool or equipment.

The utility of these services outweighs the need for imposition of liability.

Newmark v. Gimbel’s Inc. (1969) [pp. 472] Facts: Plaintiff was a customer at Defendant’s hair salon. She received a

permanent wave treatment and was later diagnosed with dermatitis of the scalp.

Proc History: Pl brought claims of negligence and defective product claiming that the Def was strictly liable for breach of implied warranty. The strict liability claim was dismissed on the ground that the Def was providing a service rather than a product. NJ S Ct reversed.

The distinction between a sale and a rendition of services is highly artificial. If Defs just sold the product, they would be liable. They should not escape liability by taking more action.

Examples: Keen v. Dominick’s Finer Foods : Plaintiff was injured when a shopping cart

overturned in Def’s store. Pl claims strict liability due to the defective shopping cart. No liability because Def was not a “seller” of the defective product (the grocery cart). ???

Peterson v. Lou Bachrodt Chevrolet Co. : Pl’s decedent was killed when she was run over by a car purchased from Def’s used car dealership. Pl alleges defects in car’s brakes. The case meets the requirements of the Rest. However, there is the idea that used cars may be different because the dealership did not know when the brakes became defective. Also, with a new car dealer, they know that the brakes must have been defective when they left the manufacturer. If they are sued, they can recover the money from the manufacturer. A used car dealer may not be able to recover from anyone. On the other hand, the deep pockets argument points to suing the used car dealer.

Nutting v. Ford Motor Co. : Hewlett Packard auctioned off its old company cars. The Pl bought one of the cars and then was injured when it stalled on the highway. Strict liability against Hewlett Packard. Reasoning: If HP didn’t introduce the manufacturing defect and they were forced to pay, they can recover from Ford. There’s a good chance that the defect didn’t come from Ford and that it came from HP employees so it’s HP’s fault.

Mexicala Rose v. Superior Court (1992) [pp. 475] Facts: Pl swallowed a one-inch bone when eating chicken at Def’s restaurant.

Pl was injured. He brought claim of strict liability. Rest §402A comment i : strict liability when food is dangerous beyond that

contemplated by the ordinary consumer. Test: Is this a substance a consumer would have reasonably expected to find

in the food?o Distinction between foreign v. naturally occurring objects: If it is

naturally occurring, it can be said that it was reasonably expected by its very nature.

Strict liability does not apply in this case based upon consumer expectations. One would expect chicken to contain bones.

Doyle v. Pillsbury Co. (1985) [pp. 476] Facts: The Pl’s husband found a large insect when he opened a can of Green

Giant peas. She recoiled in alarm and fell over a chair and injured herself. Ingestion Rule: She didn’t eat the foreign object. Causation issue. No liability.

Klages v. General Ordnance Equipment Corp. (1976) [pp. 477] Facts: Pl bought a mace pen to protect himself against thieves. The literature

claimed “instantaneous incapacitation.” The plaintiff was in his place of employment when thieves entered. He used the mace pen, but the thief was not deterred and shot the Pl in the head. He sued the Def.

Rest §402B : A seller who makes misrepresentations to the public of a material fact concerning the quality of the product is subject to liability for physical harm caused by justifiable reliance even (a) if it was not made fraudulently or negligently and (b) the consumer does not have a contractual relation with seller.

Court says there is liability. Possibly on the basis of failure to warn or design defect.

C. DESIGN DEFECTS

Manufacturing defect: there is something different between the way the product was designed and the way your product was produced (i.e. is supposed to be).Design defect: there is something wrong with the way the product was intended to be.

When the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design, and the omission of the alternative design renders the product not reasonably safe. ALI Rest (Third) of Torts §2

Rest §1 comment a.

When the specific product conforms to the intended design, but the intended design itself, or its sale without adequate warnings/instructions, renders the product unreasonably safe

Every unit is potentially defective Cases require determination that the product could have reasonably been

made safer by a better design or instruction or warning. §2(b) and §2(c) rely on a reasonableness test, but the liability is referred to

by many courts as “strict” for the following reasons:1. If the product causes injury while being put to a reasonably

foreseeable use, the seller is held to have known of the risks that foreseeably attend such use.

2. Some courts have sought to limit the defense of comparative fault in these cases.

Rest §2 comment a. Risk-utility balancing: an independent assessment of advantages and

disadvantages.

Main economic points: accidents; insurance; deterrence

Dawson v. Chrysler Corp. (1980) [pp. 479] Facts: Dawson, a police officer on duty, lost control of his car and hit a pole.

The pole ripped through the car. Dawson is now a quadriplegic. Proc History: The Dawsons bring a claim of strict products liability for

defective design-the car should have had a continuous steel frame that would have caused the vehicle to bounce off the pole. The trial court found for the Plaintiffs.

Issue: Could the jury be permitted to find that the patrol car was defective (under NJ law)?

Analysis: NJ courts reject the majority Rest §402A requirement that the defect must cause the product to be “unreasonably dangerous to the user or consumer.”

o The court believes this language may lead a judge astray to think that an ultra-hazardous product is required to find liability.

o The majority opinion/rest is the majority rule. The court makes the determination of defectiveness by using a risk/utility

analysis (similar to the Learned Hand test): would a reasonable person believe that the magnitude of perceivable danger at the time of the trial outweighed the benefits of the was the product was designed?

o Relevant factors: (1) usefulness of the product, (2) safety aspects and probable seriousness of injury, (3) availability of a substitute, (4) ability to eliminate the unsafe characteristics without decreasing utility or increasing cost too much, (5) user’s ability to avoid danger by exercising care, (6) user’s anticipated awareness of dangers of product, (7) feasibility of spreading the loss (on manufacturer’s part)

Chrysler’s argument: Defs failed to prove that alternative design would be safer for most accidents, cost effective, or practical.

o The car met all current safety standards and was stronger than comparable vehicles.

o Compliance with Natl Traffic and Motor Vehicle safety Act does not automatically relieve Chrysler of liability.

Dawson’s argument: Reports of tests by the DOT that frame improvements would reduce intrusions on passengers. They admitted it would add costs and weight to the vehicle.

Holding: Jury was reasonable in concluding that the design was defective. There was no need to find that ALL factors weighed in favor of Dawsons.

Court has reservations about this decision and believes Congress should take action. The decision allows individual juries applying varying laws in different jurisdictions to impose on automobile manufacturers conflicting requirements. They want the companies to have some guidelines.

o The only way to fix the design defect alleged in this case would have been to place a steel bar around the car; however, this would cause greater safety risks in other types of accidents.

A benefit of waiting until after a product has been produced to regulate is that you can act based on what’s actually happened (i.e. the types of accidents) as opposed to relying on predictions.

Dawson is pretty close to the majority. Risk utility analysis is preferred combined with the reasonable alt design

(mostly similar). Consumer expectations is a little different. Rest is

Blankenship v. General Motors Corp. (1991) [pp. 485] Issue: Will courts recognize claims that cars are not crashworthy? (like the

claim made in Dawson) Holding: The court will recognize such claims. Other jurisdictions recognize it

and if it didn’t it would disadvantage the citizens in W VA.o Inherent in the cost spreading function of liability is an insurance

premium for all purchasers of products. W VA purchasers should not have to pay this premium without receiving the benefits.

o A Race to the Bottom GM is a national company that sets national prices. When some states

recognize cause of actions for accidents, GE will include an insurance premium in the price of their car. This will lead other states to recognize this same cause of action, even if it believes it’s a bad rule, so as not to disadvantage its residents by making them pay the premium and yet not receive the benefits.

Bruce v. Martin-Marietta Corp. (1976) [pp. 486] Facts: An airplane crashed into a mountain. During the crash seats came

loose blocking the passenger exit door. Pls claim that this caused some passengers to be injured or killed.

The plane was built in 1952. The seats were state of the art at that time-not defective.

Plaintff argued that in 1970 when the accident occurred better seats were available.

Holding: No liability. Plaintiff must show that the product was dangerous beyond the expectation of a reasonable customer.

o A reasonable customer should not expect 1970s equipment in a 1950s model.

Duty to Inform: Restatements have asserted this. Some states agree. Duty to Recall: Across the board, the answer is no. Once the transaction ends,

your duty ends

Lewis v. Coffing Hoist Division (1987) [pp. 486] Facts: Plaintiff was operating a hoist that became stuck. In trying to fix it he

accidentally stumbled and hit the control button. The plaintiff was injured. Plaintiff claims the design was defective for not including a guard around the control box.

A design is defective where the product was lacking any element or feature necessary to make it safe for intended use.

Defendant was prohibited from introducing evidence that 90% of the hoists in the US lacked a guard around the control box.

o The court will not look at what the industry would do; they will look at the particular design defect.

o The industry behavior goes to the reasonableness of plaintiff’s choice, but does not figure into a consideration of a design defect.

Holding: Evidence was inadmissible. Liability for the defendant.

Approaches Risk/utility balancing test: burden on plaintiff to suggest a reasonable

alternative designo Commonly used (see Dawson and Third Rest)o Similar to the Learned Hand Formulao More like negligence standard than strict liability

Ordinary expectations of consumer test As designed was it safe for its intended use? (Lewis) Other factors to consider:

o Did the design reflect the “state of the art” when made?o Was the danger of the product “open and obvious”?

Dreisonstock v. Volkswagenwerk A.G. (1974) [pp. 488] Facts: A VW microbus crashed causing Plaintiff injuries. She claims a design

defect and that the bus was not “crashworthy” Holding: No liability. The court does not find liability for VW because it was

apparent that this car was designed to ensure maximum space at an inexpensive price.

o The particular design defect was open an obvious so it was not considered a source of liability. The driver’s seat was further forward, thereby adding cargo space.

o The above, which sort of resembles contributory negligence, is not a bright-line rule anymore, but this is a factor courts will take into consideration.

Strict liability removes the incentives for the party who doesn’t have to face liability anymore to take precautionary measures. Example: if car manufacturers were held liable for all accidents then drivers may begin to drive more dangerously/less safely. This may also have the effect of passing on higher costs to consumers as a sort of insurance. The idea is that there are better ways of providing insurance.

McCarthy v. Olin Corp. (1997) [pp. 489] Facts: A man boarded the Long Island Railroad and opened fire. He used

bullets that were restricted to law enforcement use, but available to anyone at the time he purchased them. Pls bring claim of defective design.

Holding: Claim dismissed. The bullet was not unreasonably dangerous for its intended use-it was meant to be a dangerous object. Also, at the time it left the sellers’ hands it was in “a condition reasonably contemplated by the ultimate consumer.”

Plaintiffs try to invoke the risk utility test. Court rejects.o The risk utility test can only be used once a defect is discovered. Here

the risks are a function of the product.

D. FAILURE TO WARN

Failure to warn is a marketing defect. The existence of a duty to warn is a question of law. A manufacturer has a duty to warn if it knows or should know of the potential harm to a user because of the nature of the product. There is no duty to warn when the risks of a particular product are “within the ordinary knowledge common to the community.”

American Tobacco Co. V. Grinnell (1997) [pp. 493] Facts: Plaintiff Grinnell began smoking cigarettes produced by American

Tobacco in 1952. 33 years later he was diagnosed with lung cancer. He filed suit against American for failure to warn of the dangers and addictive quality of cigarettes. His family continued the suit after his death.

Proc History: Trial Ct gave SJ to Defs and Ct of Appeals Reversed. Appealed to the TX S Ct.

§402A cmt i : A seller is not required to give warning for products or ingredients in products that are only dangerous when consumed in excess quantities, or over a long period of time, when the danger is generally known.

Common knowledge: facts that are so well known as to be beyond dispute

o The party asserting the common-knowledge defense has the burden of proof.

The Defs argue that even if the warning was present, Pl still would have started smoking. They suggest that the warning wouldn’t have worked. The Def can offer evidence to show this. This is a subjective inquiry rather than a reasonableness test.

o Rebuttable presumption that the Pl would have heeded the warning if present.

Pl’s knowledge before he began smoking about the addictive qualities ND whether or not he would have heeded a warning presents a question of fact. No SJ on the addictive warning. SJ for the Def on the warning of dangerous qualities.

Graves v. Church & Dwight (1993) [pp. 498] Facts: Pl takes baking soda one night as a remedy for heartburn and his

stomach ruptures. He sues for a failure to warn. Pl took about 3 times the normal dosage. He admitted that he did not read

the baking soda label. He described himself as a “compulsive reader.” He also admitted that he was a smoker for five years.

Court concluded that there was a presumption that Pl would have heeded a warning if present. Def successfully rebut this by presenting evidence of Pl’s smoking habits notwithstanding health warnings and an analogy between this and the baking soda.

Holding: The baking soda was defective for failure to warn, but the failure to warn was not a proximate cause of Pl’s use of the product and injury.

Brown v. McDonald’s Corp. (1995) [pp. 499] Facts: Pl purchased veggie burger from McDonald’s. The burger contained

seaweed and the Pl was allergic to seafood. She experienced an allergic reaction and brought a claim of failure to warn against McDonald’s.

McDonald’s admits to not providing a warning and asserts that all information is available on a flier listing ingredients. They assert that the burger posed no risk to ordinary customers.

Ohio Statute asks whether a manufacturer exercising reasonable care would warn of the risk in light of the likelihood and seriousness of the risk.

Regarding food allergies no duty to warn against common allergies. Duty to warn where the product contains an ingredient that is a common allergy and one that people would not reasonably expect to find in the product.

No SJ for Def. Jury decision.

Rest 402A comment j states that if there is an adequate warning a product is not defective. Many courts have rejected this and have held that a warning will NOT completely absolve a manufacture of liability where a safer design could have been adopted.

Liriano v. Hobart Corp. (1999) [pp. 502] Facts: Plaintiff is an employee of a supermarket. He used a meat grinder

where the guard had been removed. He injured his hand. Pl sues Hobart, manufacturer, and the supermarket for failing to warn that the guard had been removed.

Holding: Liability for the defs with the supermarket bearing the larger share. Pl was 1/3 responsible.

A reasonable person may not know that a guard is available. A reasonable manufacturer may have a duty to convey this even if the dangers of the meat grinder are obvious.

The motivation for providing the warning is the presumption that people may not know of the added danger or the hope that people would be more cautious.

You can have a risk that’s obvious to some people, but not obvious to a particular class of people (as in the food allergy case).

o This can cause liability to exist. What is the cost and effectiveness of the warning for that particular class?

Rest §402A comment k: Some products are incapable of being made safe for the intended and ordinary use. An example is the treatment for Rabies. However, the utility outweighs the risk. As long as the product is properly prepared and marketed, and proper warning is given, manufacturers will not be strictly liable.

Brooks v. Medtronics (1984) [pp. 505] Facts: Pl suffered a heart attack and received a pacemaker made by

Medtronics. He experienced complications and had to receive electric shock treatments. Pl sued Medtronics claiming the pacemaker was defective (the prongs at the end of the pacemaker were too short to remain lodged in his heart) and for failure to warn of the risk that the lead could come loose.

The dislodgment of lead is a common risk with pacemakers. Neither Medtronics nor the doctor notified Pl of this risk.

Standard for Prescription Drugs: Manufacturer owes consumer a duty to warn the physician of risks. Once adequate warnings are given to the physician, the duty to disclose falls on him/her. The physician must act as the “learned intermediary” because he is in the best position to understand the patient’s needs and assess the risks and benefits.

Holding: No liability for manufacturer.

Perez v. Wyeth Laboratories (1999) [pp. 507] Facts: Pls used a contraceptive device. They suffered various side effects and

sued the manufacturer for failure to warn. Wyeth engaged in a large advertising campaign directed at women rather

than their doctors. The learned intermediary rule does not apply in direct-t-consumer advertising of prescription drugs.

The direct marketing of drugs to consumers generates a corresponding duty requiring manufacturers to warn of defects in the product.

DAMAGES3 Types:

1. Nominal: small amount just meant to establish the Pl’s rights were invaded2. Compensatory: intended to replace what the pl lost3. Punitive: intended to deter the defendant and other potential tortfeasors

from committing such misconduct again.

Compensatory Damages

United States v. Hatahley Fundamental principle of damages is to restore the injured party to his

previous position Awkwardness in using market value as an estimate of damages because if

people are holding property and not selling they may place a greater value on the property then the market; therefore, they are not adequately compensated; however, we are okay with this as long as they can replace the item.

Compensation for lost profits if it is caused by the damage, but only until the time when a reasonable person would have replaced the item.

Damages for mental pain and suffering only awarded in extreme cases. Comment a, pg 522: The only damages you will pay are for things that went

wrong. What seems like strict liability appears more like negligence because you subtract the benefits from the harm.

Rests [518-523]

Mathias Facts: Bedbugs that the hotel was aware of and tried to pass off as ticks.

They did not take proper precautions and rented rooms although they knew the rooms were infested. Pls sued

Analogy to spitting in face case. The actual harm (compensatory damages) are very low. If you don’t impose punitive damages, then people may not be deterred from this type of behavior.

Exam2 issue spotters and policy question (1/3 each)Materials that he assigned and we didn’t talk about will not play a MAJOR roleDamages will not play a major roleNot held accountable for the specific rest provisions in the readingDon’t need to have a detailed discussion on how case would play out under a minority rule, but if there’s a split, you should note it and discuss how it can go either way. Cite cases in short name

Review Policy questions: consider the litany of policy rationales; think about the

effects in the real world Tort law: you’re allowed to do whatever you want, unless you hurt someone

else. If you do hurt someone else, you have to pay. You must consider both parties although the doctrines may only address one

partyo Doctrines in intentional tort are focused on one party at a time; they

try to isolate each o Some doctrines then try to aggregate the effects on both parties (i.e.

contributory negligence) Remember the distinction between intentional vs. unintentional torts.

Intentional torts are those that refer to conscious acts. Intention is Not w/r/t the result/injury; intent w/r/t the contact.

Battery: o Knight football case-contact was not intentional

o Opposite results in the exhaust from the bus case (no battery) and the radio host blowing smoke in Pl’s face (battery).

Consent: Trespass:

o Intent requirement: Person releasing dogs to chase fox knew the dogs would go

onto the Pls property-trespass Golf course case where customer hit ball onto pl’s property-not

a certainty the golf ball would enter pl’s property. No trespass Conversion:

o Intentional act (???)o Exercise of dominion or control; Rest factors (6)

Spooner: Accidentally straying out of the designated path of travel is not conversion.

Mistake is not a defense: if you accidentally take someone’s umbrella, it is conversion

Mistaken permission: tow-truck case

False imprisonment:o Intentional Acto Confining someone within boundaries

Bank case where police held someone bank suspected of attempted robbery: Bank is not guilty of false imprisonment because they did not tell the police to arrest Pl; there was another agent.

o The person who is confined needs to know about it Assault:

o Act aimed at causing harmful or offensive contacto Act intending to cause imminent apprehension of harmful or offensive

contact Bat case v. sword case Blind girl as guest in house: liability, but this was a borderline

case. There was no threat, he just asked permission, but because she was blind it created fear.

Extreme or Outrageous Conducto Intentional or reckless element

Hustler rule regarding public figures-higher standardo Consider characteristics of individual, circumstances of incident

(labor dispute), truthfulness There is no technical reason why arguments for the fault of the injured

cannot be right. Example: Vosburg should have been wearing armor when he was kicked. Policy Arguments:

o No liability without fault Morality argument for fault

Intentional Conduct is the dividing line. If act is intentional, we will use the as between 2 innocents rule. If act is not intentional, we use no liability without fault.

o As between two innocentso Freedom of action versus right to security

see outrageous conduct cases: right to say what I want to say vs. right to be free from hearing that/right to emotional security

property cases: the right to go where I want versus the right to be secure in my property

You must define the right (where the right to property ends, the right to do what you want to do begins)

o Rules versus Standards Tends to support strict liability regimes based on ease of

administrationo Accident prevention/deterrence

Outrageous conduct cases: the idea that maybe people need to toughen up; that’s why we look at only severe or really outrageous cases

o Risk pooling Monkey/cruise case Who’s in a better position to bear the costs of the accident If there are inevitable accidents, one approach is to make the

vendor liable and prices will increase to cover the cost of insurance to the people who may be harmed by the accidents. Do you want prices to go up and how much is reasonable?

Consider the arguments about strict liability for medical cases-prices are already high, may squeeze some people out of the market

o Economic Arguments WILL BE ON EXAM (deterrence, accident prevention, risk pooling and effects on prices). Consider if the remedies will adequately affect people’s behavior.

Defenses: o Meant to point out the 2 party rule and give the difference between

strict liability and negligence. Ploof: Boat docked during storm, dock owner’s servants unties

boat. The potential damage to the boat was greater than the potential damage to the dock. The dock owner was liable. –Negligence???

Lake Erie: Boat docked during storm even though it shouldn’t be. The boat damaged dock. Boat owner is liable. –Strict Liability

Under a negligence rule, you won’t pay if you did what we want you to do.

Under a strict liability regime, you will pay even if you did what we want you to do.

Cost effectiveness rule: boat is worth more than the dock, so you save the boat. Goat is worth more than the dog, so you save the goat and shoot the dog.

Single Owner idea: if you owned both, which would you be willing to sacrifice?

Both strict liability and negligence regimes set up the same outcome in action. However, in negligence you pay if you sacrifice the more expensive object. Strict liability you pay anyway even if you want them to shoot it-it causes the actor to pick the right dock (unilateral care). Bilateral care: if you make a strict liability regime you are lessening the incentive for the owner to take care (for the dog owner to tie up their dog and take precautions to make sure it can’t injure others). Negligence will require dog owners to take care because dog is worth less than the goat.

Hull v. Scruggs : egg sucking dog. Shot dog didn’t payo negligence

Kershaw v. McKown : dog attacking goat, shot dog. Didn’t pay.

o Negligence o Under strict liability, he would have to pay for the

dogo If the way we set the standard of care minimizes

costs under the BPL formula, the outcome is the same.

o Products liability: risk pooling. o Risk utility analysiso Activity level analysiso What role does contracts play? Why do we allow parties to contract

out of liability regimes? Why do we sometimes not? Sometimes we look to contract terms to determine the

standard of care Can you contract out of negligence (i.e. skydiving lessons)

Approaches Risk/utility balancing test: burden on plaintiff to suggest a reasonable

alternative designo Commonly used (see Dawson and Third Rest)o Similar to the Learned Hand Formulao More like negligence standard than strict liability

Ordinary expectations of consumer testo

Reminders

If you can’t get someone for an intentional tort, you may be able to get them for negligence.

Use of punitive damages: if you know you’re not going to be able to catch someone often, you will punish them mire heavily when you do catch them (i.e. speeding tickets); you only catch them once out of every ten times that they actually speed