General Principles of Torts

Goals(1) Blame/responsibility(2) Economic efficiency

-insurance companies(3) Correct Incentives/Deterrence(4) Litigation may not be worth it

-may be cheaper to settle even if you should win-judgment proof defendant

Rule: The general principle of the law is that the loss from an accident must lie where it falls unless clear benefit is derived from disrupting the status quo; if the person did not have a reason to believe he might suffer a seizure, the harm is transferred from one innocent person to another (examine reasonableness)

Negligence PrinciplesNegligence involves a (1) duty of care; (2) breach of duty (what is reasonable and did I fail to meet this duty of reasonable); (3) whether breach of duty caused the injury (physical harm or dignitary harm); and (4) damages (kind, what is the amount)

Judge versus Jury(1) Juries decide questions of fact

a. What happenedb. Certain legal consequences of those facts (was D negligent?)c. Damages

(2) Judges decide issues of law and sometimes hybrid casesa. Whether D had a duty to P and the nature/extent of that dutyb. The elements of a cause of action or defensec. Whether certain legal rules apply (can a particular statute be used to set standard of

care?)d. Fact issues if the evidence overwhelmingly favors one conclusione. Rules of civil procedure and evidence

Specifically(1) No duty is generally a pure question of law, while breach of duty involves the facts (unless there is overwhelming evidence on the facts); causation (except court will have to tell them the rules of law to apply) and damages are also generally for the jury(B) The foreseeability of harm to the plaintiff is actually a jury question, even though most questions of whether duty exists are for the judges

The question should be submitted to the jury if the rule to be applied is from daily experienceImplications: (1) Technological change and shifts in public perception can change what constitutes reasonable safety measures; it has traditionally been the jury that reflects these shifts and changes; (2) The circumstances must dictate whether the defendant would have been reasonable to get out of his

car (probably not in these circumstances since the crossing was a frequented highway and there was a line of cars behind him)

Pokora (p.62); driver could not see railroad track so he relied on hearing the bell whistle

Given conduct is or is not negligent as a matter of law (certain conduct in certain recurring situations so clearly is or is not negligent that the question may be taken from the jury)Implications: (1) There is a mixed standard of law (what do the rules for reasonable care mean) and fact (what is reasonable to do); (2) when it is a mixed question, the courts are more predictable if they would take the question away from jury (based on predictability of law versus overreaching by judge); (3) if evidence is so overwhelming in favor of one party, the judge can direct a verdict

Baltimore & Ohio Railroad (p.60); Railroad killed plaintiff driving in automobile; plaintiff’s view was blocked by section house; Judge overturned jury verdict and ruled that plaintiff was at fault

Winner: (1) When a man goes upon a railroad track, he knows that he goes to a place where he will be killed if a train comes upon him before he is clear of the track; he knows he must stop for the train, not the train stop for him

Duty

Inaction/Nonfeasance (no action)No duty of rescue or warning unless it is triggered by special circumstances (affirmative obligations) Implication: at least person did not make the situation worse; courts generally refuse to impose liability for doing nothing (even though in some situations it may go against moral sense)

Affirmative Obligation to Act (failure to perform one’s duty): (1) Special relationship to victim (parent, custodial (such as warden of prison), employer)

-Duty to aid or protect another when the risk arises within the scope of that special relationship (carrier-passenger, landlord-tenant, companions on social venture when one of them is in peril and other is not endangered)

Sub-Rule: Superior knowledge of a dangerous condition is not enough to establish liability; the actor must have custody of another person under circumstances where the other person is deprived of the normal opportunities of self-protection

Harper v. Herman (p.134); Guest on a boat dove into shallow water; Court failed to find that boat owner had a duty

Winner: 1) Harper was neither particularly vulnerable nor lacked the ability to protect himself; further, Herman did not hold considerable power over the deceased’s welfare, was not receiving any financial gain, and there is nothing to suggest deceased expected defendant to protect him

(2) Special relationship to perpetrator (duty to control person to prevent from injuring others)

The relationship between a patient and his doctor or psychotherapist may support affirmative duties for the benefit of third persons (professional obligation)

Tarasoff v. Regents of the University of California (p.157); Psychologist of perpetrator did not warn victim of danger ; judge ruled that there was a duty of care to the deceased and it will go to the jury for breach of duty

Winner: 1) Once a therapist does in fact determine, or under applicable professional standards reasonably should have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that dangerChange: -does it depend on how well actor could effectively warn the potential third party in danger; in this case, the doctor was aware of specific threat to the specific victim (probably was reasonable given that psychologist notified police)

The actor owes a duty to care to third parties if his actions would present a substantial, foreseeable risk of physical injury to third persons

Randi W. v. Muroc School District (p.148); Past employers did not mention sexual assault incidents of employer in their recommendations

Winner: 1) The writer of a letter of recommendation owes to a third party a duty not to misrepresent the facts in describing the qualification and character of a former employee if making these misrepresentations would present a substantial, foreseeable risk of physical injury to the third persons (assault was reasonably foreseeable)

(3) There is a duty to act when D is responsible for P’s injury or position of peril, whether or not D was negligent (mitigation)

(4) Defendant (under no initial duty) goes to aid of another (he must use reasonable care while assisting P and not leave P worse off)

-He must avoid any affirmative acts which may make the situation worse

Companions on a social venture have a duty to render assistance to the other when he is in peril if he can do so without endangering himself (reliance)

Farwell v. Keaton (p.140); Deceased eventually died after he was beaten up and his friend left him in the car overnight; Court ruled that defendant had duty of care

Winner: (1) Defendant voluntarily came to the assistance of deceased and had a duty to aid deceased on the basis of their pre-existing relationship

Misfeasance (unreasonably careless performance of duty) All persons have a general duty to use reasonable care to prevent others from being injured as a result of their conduct (risk creation)Other Notes: 1) Must examine nature of duty owed and to whom duty is owed in regards to act (Palsgraf)

Exceptions The courts can refuse to impose liability for consequences that are foreseeable (duty) versus the proximate cause analysis of refusing to impose liability for unforeseeable consequences

(1) Intrusion on individual autonomy (public policy)Rule: Social hosts should not be liable to third persons injured even though commercial vendors might be liable Implications: (1) Social host liability would touch most adults on a frequent basis; (2) balance between ability to have fun and to deter unsafe behavior

Reynolds v. Hicks (p.183); At wedding, underage kid got alcohol and then injured the plaintiff; no duty of care to third persons injured

Winner: 1) Social hosts are not as capable of handling the responsibilities of monitoring their guest’s alcohol consumption

(2) No duty for wrongdoers (public policy)Generally, I am allowed to assume you will use something in a reasonable manner unless I know of special circumstances (age, previous behavior)Rule: Negligent entrustment involves leaving a dangerous article with a person who is likely to use it in an unreasonably risky manner Implications: (1) No affirmative duty to investigate for the dealer but may be liable if he had reason to know; (2) In another case, radio station holding contest was held liable for negligent creation of a risky situation

Vince v. Wilson (p.188); Grandmother provided funding for incompetent driver (failed the driver’s license test several times) who injured plaintiff in accident; court upheld jury verdict concerning grandmother and overturned summary judgment for the salesmen

Winner: 1) The negligent entrustment theory requires a showing that the entrustor should have known some reason for why entrusting the item to another was foolish or negligent

(3) Crushing LiabilitySometimes even though the defendant has played a role in creating the risk that harmed the plaintiff, the court determines that no duty exists in order to prevent crushing liabilityRule: It is the court’s responsibility to limit the legal consequences of wrongs to a controllable degree and to protect against crushing exposure to liability

Strauss v. Belle Realty Co. (p.176); Huge power outage where tenant slipped and fell in a common area; liability for injuries in a building’s common area should be limited by the contractual relationship

Winner: 1) Courts have declined to extend the duty of care to noncustomersLoser: (1) In essence, the more persons injured through a tortfeasors gross negligence, the less the responsibility for injuries incurredChange: -If less people were injured, the utility company may have been liable

-if customer had fallen in own apartment, the utility company probably would have been liable

Other Notes: 1) This could cover the case with cow started fire and fire burned the whole city of Chicago (only duty to first house) even if it was foreseeable

Special Situations

Emotional Distress (duty question; still must prove other elements)P’s bodily harm results solely from his severe emotional distress, which was caused by D’s negligent conduct

Goals -Make sure claims are not fraudulent -Floodgate of litigation (cannot allow all bystanders and all friends and relatives to sue)-Extent and predictability of liability

Physical Impact (all courts will allow recovery) 1) Plaintiffs may recover emotional distress if D’s negligent conduct results in any impact, however slight, with P’s body For courts trying to get around this requirement, the physical impact could be slight (such as dust in the eyes)

Zone of Danger Test (may be recovery) Plaintiff may recover for a negligent act that almost causes injury (close enough to be placed at risk of physical injury by defendant)Rule: Where physical injury results from wrongfully caused emotional stress, the injured person may recover for such consequences even though the absence of any physical impact upon him at the time of the mental shock Exception: Where fright does not cause substantial bodily injury or sickness, there will be no imposition of liabilityImplications: (1) Survival statutes also allow the deceased’s estate to recover emotional distress for victims realizing they are doomed; (2) if you are physically injured, then your claim seems more likely to be true and more justified (instead of being “weak”)

Falzone v. Busch (p.264); Plaintiff feared for her safety as automobile veered toward her and hit her husband; as a result, she became ill and required medical attention; plaintiff can recover

Winner: (1) Plaintiff may recover for the physical consequences of frightPlaintiff had no claim even though she was in the zone of danger because the plaintiff was not closely related to the decadent (head and walkman case)

Foreseeability/Bystander (may be recovery) Rule: If emotional injury is foreseeable, it will be compensated; this claim is determined by (1) the death or serious injury caused by defendant’s negligence; (2) a close familial relationship between plaintiff and injured person (as opposed to no relationship or distant relationship); (3) observation (based on sensory observation versus learning of the accident from others after its occurrence) of death or injury at the scene of the accident (as opposed with one who was a distance away from it); and (4) resulting severe emotional distress Implications: (1) this accounts for the trauma of witnessing a horrific event, while also limiting liability

Portee v. Jaffee (p.286); Kid trapped in elevator; the harm involves the serious observation of the death of a loved one

Dillon Rules: (1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it; (2) whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observation of the accident, as contrasted with learning of the accident from others after its occurrence; (3) whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship

Rule: They are not in the zone of danger and their injuries did not result from contemporaneous observation of serious injury or deathImplications: (1) Plaintiffs’ grief and mental torment which resulted from action to another are limited by public policy reasons of open-ended liability where persons experience negligent care

Johnson v. Jamaica Hospital (p.295); baby was abducted from hospital

Ordinary Sensitive Person, not eggshell plaintiffRule: A defendant is bound to foresee psyche harm only when such harm reasonably could be expected to befall the ordinarily sensitive person (do not provide compensation for eggshell psyche)Implications: (1) Accounting for exceptional vulnerable of family of recent decedents from mishandling of body, which allays fear of fraudulent claims;

Gammon v. Osteopathic Hospital (p.281); Plaintiff was sent bag of father’s bloodied leg after he died; defendant’s directed verdict is reversed

Physical Injury Rule (Proof of Emotional Distress)How must the emotional distress be manifest? Old Rule: Emotional distress had to be manifest in physical sickness or injury (leading to heart attack)Now, they are looking for anything that documents the distress (yoga class, seeing therapist)

Fear of Future HarmRule: Law permits recovery for emotional injury by plaintiffs who are placed in immediate risk of physical harm by that conduct (no present physical harm) Implications: (1) Recovery for emotional distress required immediate traumatic harm from threatened physical contact; (2) “physical impact” was not mere exposure; (3) court’s are willing to compensate fear for the three seconds of freefall on an airplane instead of long-term fear of cancer (alternatively, you could argue this was more traumatic and reasonable fear)

Metro-North Railroad Company v. Buckley (p.273); Plaintiff was exposed to asbestos but showed no evidence of cancer at this point; worker cannot recover until he manifests symptoms of the disease

Vicarious Liability (duty based on relationship to perpetrator)

Respondeat superior (not strict liability; employee must still be negligent) Sub-Rule: Under the doctrine of respondeat superior, employers are vicariously liable for torts committed by employees while acting within the scope of employment; three criteria determining whether an employee is acting within the scope of her employment: (1) the employee’s conduct must

be of the general kind the employee is hired to perform; (2) the employee’s conduct must occur substantially within the hours and ordinary spatial boundaries of the employment; (3) the employee’s conduct must be motivated by the purpose of serving the employer’s interestImplications: (1) Vicarious liability gives employers strong incentives to shrewdly select, instruct, and supervise employees; (2) vicarious liability assures compensation to victims and spreads the losses caused by an enterprise equitably; (3) incidental acts in the course of work (lunch or smoking breaks) should be considered within the scope of employment because they are related in a general way to the accomplishment of the work

Christenson v. Swenson (p.18); Swenson caused a crash on lunch break; reasonable minds could have differed as to whether Swenson was acting within or outside the scope of her employment at the time of the accident, so the case should have been submitted to the jury instead of resulting in summary judgment

Intentional Torts and the Motivation to Serve Test In terms of intentional torts, courts have held the employer liable where an employee commits an intentional tort in order to serve (however misguidedly) the employer’s purposes

-where a caregiver at childcare facility banged the baby’s head against a blunt surface in frustration when the baby would not stop crying

Independent Contractor Rule: If a principal creates the appearance that someone is his agent or employee, he is not permitted to deny the agency if a third party, who does not know otherwise, reasonably relies on this apparent agency; the principal can be held vicariously liable if the injury would not have occurred but for P’s justifiable reliance on the apparent agencyApparent authority exists if (1) a representation by the purported principal; (2) a reliance on that representation by the third party; (3) change in position by third party in reliance on the representation

Roessler v. Novak (p.24); the question whether hospital represented that the radiologist was its agent should have gone to the jury instead of being decided on summary judgmentWinner: 1) By virtue of embedding that radiology department in the hospital, it becomes part of the hospital’s responsibility

Landowners (duty question)

Licensees and Invitees Invitees are owed a duty to exercise reasonable care to protect them against both known dangers and those that would be revealed by inspection; licensees are owed a duty to make safe dangers of which the possessor is aware Rule: The invitation was not given with any material benefit motive or extended to the general public so social guest is a licensee Implications: (1) This is a question of law; (2) different from business guests or general public

Carter v. Kinney (p.195); Plaintiff slipped and fell while attending a Bible Study; plaintiff was a licensee which meant that no duty of care had been violated

Process in Determining Status(1) All entrants are trespassers until the possessor of the land gives them permission to enter(2) All persons who enter premises with permission are licensees until the possessor has an interest in the visit such that the visitor has reasons to believe that premises have been made safe to receive him(3) The possessor’s intention in offering the invitation determines the status of the visitor and establishes the duty of care the possessor owes the visitor

Trespassers (same with categories and foreseeability) (1) No general duty to trespassers unless person knew or should have known about trespassers(2) Attractive Nuisance for trespassing children (swimming pools)

Foreseeability of Injury Rule: Instead of the entrant’s status, the foreseeability of the injury should be the controlling factor in determining the liability of the landowner Implications: (1) Same duty for licenses and invitees

Heins v. Webster County (p.201); Heins was a social guest visiting his daughter at hospital; Court abolished categories and ruled that hospital had a duty

Winner: (1) The hospital would undergo no additional burden in exercising reasonable care for a social visitor since they are already doing it to protect invitees

Business Patrons and Criminal Activities of Third Parties Rule: There is a no general duty to protect others from the criminal activities of third persons; however, there is a duty to implement reasonable measures to protect patrons when those acts are foreseeable

Determination of Foreseeability(1) Specific harm rule (a landowner does not owe a duty to protect patrons from the violent

acts of third parties unless he is aware of specific imminent harm about to befall them (too restrictive))

(2) Prior similar incidents test (by evidence of previous crimes on or near the premises (number of previous crimes and degree of similarity))

(3) Totality of the circumstances (take into account additional factors such as the nature, condition, and location of the land, as well as other relevant circumstances bearing on foreseeability (broad))

(4) Balancing test (seeks to address the interests of both business proprietors and their customers by balancing the foreseeability of harm against the burden of imposing a duty to protect against the acts of third persons)

Rule: The foreseeability of the crime risk on the defendant’s property and the gravity of the risk balance against the cost to determine the existence and the extent of the defendant’s dutyImplications: (1) this rule collapses the determination of a duty of care and breach of that duty, which allows the court to usurp the jury’s role (predictability versus eliminating community’s value determination); (2) in cases in which overriding public policy concerns arise, the court determines what

constitutes reasonable care; (3) security costs would increase the cost of doing business in economically depressed areas

Posecai v. Wal-Mart Stores (p. 211); plaintiff was robbed in parking lot of Sam’s Club; no duty existed

Winner: 1) Given the large number of customers that used Sam’s parking lot, the previous robbery of only one customer in all those risks indicates a low crime risk and gives rise to no duty

2) A very high degree of foreseeability is necessary to give rise to security guards and less foreseeability may give rise to using surveillance cameras, trimming bushes

Medical Malpractice (reasonable care)

The specialized knowledge and skill of the defendant must be taken into account when determining the appropriate standard of careSub-Rule: Doctors have a higher standard of care, but doctors are permitted, as a group, to set their own legal standards of reasonable conduct; the question of whether the defendant acted in conformity with the common practice within his profession is the relevant question Implications: (1) Expert witnesses are needed

Expert Testimony and Locality Rule Sub-Rule: Even if the proposed expert does not practice in the same field as the accused physician, he may testify if he clearly has the knowledge, skill, experience, training, or education in the field of the alleged malpractice; the locality rule (physicians are held to care possessed by members in similar localities) is not relevant anymore due to modern systems of transportation and communication

Sheeley v. Memorial Hospital (p.111); Plaintiff developed a complication from the procedure after giving birth; plaintiff receives a new trial because she should have been allowed to admit the expert testimony of OB/GYN

Sub-Rule: Expert testimony can be used to educate the jury on the likelihood the occurrence would take place without negligence in cases where a basis of common knowledge is lacking Implications: (1) Everyday jury has to decide based on expert testimony which may still not be completely accessible (comes down to who is the more favorable expert witness); there have been many calls for alternative dispute resolution (some type of administrative system)

States v. Lourdes Hospital (p.119); Plaintiff alleges negligence in the positioning of her army during surgery; plaintiff won

Change: -If the injury is an inherent risk of the procedure and not totally preventable with reasonable care, then the defendant can prove that this injury would normally occur in the absence of negligence

Informed Consent There is a duty to inform patients of the risks and benefits and give them an opportunity to make a decision about their care

Rule: The standard of care obligates the physician to disclose only that information material to a reasonable patient’s informed decision; reasonable patient (more focused on the quality of life) will probably think differently than the customary practice of doctors (most focused on the technical)Implications: (1) To obtain a patient’s informed consent to one of several alternative courses of treatment, the physician should explain medically reasonable invasive and noninvasive alternatives, including the risks and likely outcomes of those alternatives, even when the course is non-invasive

Matthies v. Mastromonaco (p.123); Plaintiff broke hip, doctor recommended best red, as a result, she was not able to walk; jury should consider issue of informed consent at new trial

Winner: 1) The causation requirement of negligence is met if adequate disclosure could reasonably be expected to have caused that person to decline the treatment because of the revelation of the kind of danger that resulted in harm

Breach of Duty

The defendant did not reasonably fulfill his or her duty

Determining Reasonableness (reasonable care under the circumstances)

(1) Alternatives to the conduct Rule: There should be consideration of the alternative options in light of reasonableness

Andrews (p.66); item from overhead compartment fell and injured passenger; case should go to jury to determine whether hazard is serious enough to warrant more than a warning

Winner: (1) given the heightened duty of a common carrier, even a small risk of serious injury to passengers may form the basis of liability if that risk could be eliminated; United has demonstrated neither that retrofitting overhead bins with netting or pursuing other means would be prohibitively expensive or would grossly interfere with the convenience of its passengers; by doing something to prevent accident (added warning), it may have put company in a more vulnerable position that requires them to take further steps)

There was no evidence that the defendant did not take all reasonable precautions to minimize the resulting perilsImplications: (1) can’t take precautions against things you cannot imagine

Adams (p.40); boy was burned when the wire he was swinging and the trolley overhead wire system connected

Winner: (1) No like accident had occurred before and trolley companies had not done itChange: -in a future case, trolley companies may be more likely to lose since this event is now foreseeable; the trolley may need to at least post a sign, which could be economically reasonable

(2) Injuries avoided outweigh the cost of the extra precaution (Hand formula) B<PL; B=burden of taking precautions; P=probability; L=liability/severity of injury; if the burden of taking precautions is more than the consequences of the accident, then there would be no incentive for people to take safety actions; this makes fault into an equation for economic efficiency

Implications: (1) The problem with the formula is it only applies to business settings; in a purely human setting, it is hard to put a value on the probability and injuries; (2) the formula leads to an ironic result (since the company is correctly calculating that it will be beneficial to pay injuries instead of implementing more safety, it will not have to pay because it is not at fault); (3) those with lower incomes will be less burdensome to injure from an economic rationale perspective

Carroll Towing Co. (p.44); bargee was absent when vessel broke away from moorings Winner: (1) The company should have had a bargee aboard (unless he had some excuse for his absence) during the working hours of daylight (custom)

(4) What the average actor would do (customs)The jury must be satisfied of the reasonableness of the behavior which adhered to the custom or the unreasonableness of that which did notImplications: (1)When the court follows the custom, there will be no social upheaval when the court rules against the defendantException: Custom may not be reasonable

Trimarco v. Klein (p.69); Plaintiff fell through the close door that enclosed the tub; plaintiff won Winner: 1) At the time of the accident, the glass door no longer conformed to accepted safety standardsChange: -There are precautions so imperative that even their universal disregard will not excuse their omission

(5) Conforming to the lawViolating statute (not as strict with administrative regulation or ordinance) is negligence per se (negligence as matter of law, unless there is excuse/justification) if:

(1) If plaintiff is in the class of persons the statute was enacted to protect(2) If the statute was intended to protect against the type of harm the plaintiff suffered

If you violate a statute, there is a presumption that you were negligent (unless the other party offers an excuse/justification, most courts rule conduct was negligent as a matter of law (negligence per se))Exception: (1) emergency where defendant does not have time to get back in compliance (body in the road); (2) a new statute (people may not know about it); or (3) when person is not operating under same standard of care (child)

Martin v. Herzog (p.75); Plaintiff driving in buggy (with no lights on) was struck by defendant (crossed center line) in an automobile; defendant won

Can avoid statute by showing that it did not apply under the unusual circumstances or that the violation of the statute did not cause the plaintiff’s injuriesImplications: (1) The Legislature did not intend the statute to be observed when observance would subject defendants to more imminent danger

Tedla v. Ellman (p.78); Defendants were walking eastward on the edge of the road and the cars were coming from behind them because they could not use the grass center to transport their junk; this action went against what the statute commanded

Winner: 1) A rule of the road may accomplish its intended purpose under usual conditions, but when the usual occurs, strict observance may defeat the purpose of the rule and produce catastrophic results

Statute is only relevant in establishing negligence if it is meant to protect persons like the plaintiff from the type of harm which actually occurred

-no liability for sheep washed overboard even though statute required animals been kept in pens; the statute’s purpose was to prevent the spread of disease not animals from going overboard

Statutes provide minimal standards of care so they may not immunize where more care is appropriate

Reasonable Care Under the Circumstances (unless there is special duty rule)

Rule: The burden of proof was on the plaintiff to prove that the defendant did not exercise due care, adapted to the exigency of the circumstancesImplications: (1) If you must use extraordinary care, this may cause people not to act unless they are required to; (2) one of the public-policy motives is to make risk-creating enterprises less hazardous to investors who feared the loss of money that would result from actions by injured employees

Brown (p.35); two dogs were fighting and man accidentally struck other party in the eye when attempting to break up the fight

Reasonable Care More Stringent Considering the Circumstances1) Common Carries

Rule: A common carrier should be subjected to the same duty of care as any other potential tortfeasorImplications: (1) The reasonable person standard is flexible to permit courts and juries to fully take into account the ultrahazardous nature of a tortfeasor’s activity and any special relationship of dependency between the victim and the actor; (2) There should be no stratification of degrees of care as a matter of law; rather, there are only different amounts of care as a matter of fact

Bethel (p.50); plaintiff was hurt on bus when wheelchair accessible seat collapsed under him2) When Party is relying on the Expertise of the Actor

Plaintiff goes in with blind trust because he has no way of assessing the risks or controlling the risk (doctor-patient relationship)

Reasonable Care Less Stringent Considering the CircumstancesGenerally, conduct is measured against external, objective norms, rather than subjective ability; however, unique characteristics of the actor may be taken into account under certain circumstances

Special Accommodations:1) Person with physical disability (blind have to live in same world as rest of us)

Entitlement to certain aspects of life that should not be taken away since people can tell at a glance and adjust their behavior; administrative ease and accommodation ease; if activity is closely linked to their deficiency, then the entitlement may be revoked (blind person driving a car)

2) Children are no held to same standard of care; they are held to the standard of a reasonable person of like age, intelligence, and experience under the circumstances

Children have to learn to be careful; however, children engaging in high-risk adult activities are treated as adults since if people cannot tell that it is a child, it imposes an extra risk on people

No Special Accommodations:Implication: (1) Want one standard of care, not a million; (2) reasonable person standard is a legal judgment, not a moral condemnation

1) Person who lacks good judgment/clumsy/etc. will be held to same standard2) Mentally ill are held to same standard (stigma)3) Person with specialized knowledge unless acting as an expert at the time (this does not

mean that the actor has a higher standard of care, but rather there is consideration of circumstances)

Proof of Negligence (no direct evidence of specific negligent act that caused injury)

1) Constructive Notice (circumstantial evidence is used to infer a particular negligent act)To constitute constructive notice, a defect must be visible and apparent and it must exist for a sufficient length of time prior to the accident to permit the defendant’s employees to discover and remedy it

Gordon v. American Museum of Natural History (p.88); Plaintiff fell on defendant’s front steps on a waxy piece of paper; did not constitute constructive notice

Constructive notice means there is no direct evidence but there is an assumption the owner actually knew because the owner was bound to know or should have reasonably known

Negri v. Stop and Shop (p.87); Plaintiff fell where a lot of broken baby jars were in the storeWinner: 1) The record contains some evidence tending to show that the defendant had constructive notice of a dangerous condition which allegedly caused injuries to its customer

2) Res Ipsa Loquitur (use circumstantial evidence to infer accident must have resulted from some negligent act by defendant)

The mere fact of an accident having occurred is evidence of negligence1) Accident that does not ordinarily occur without negligence (someone’s careless conduct is the likely explanation)2) Negligence is attributable to defendant at time of negligent act (not plaintiff or third party); must be an inference of a particular person’s negligence not just someone’s (for additional offshoots see Ybarra and Summers)

Implication: (1) jury then gets to determine whether act was likely a result of defendant’s negligence; (2) defendant has better access to evidence so he is in the best position to prove his act was not negligent; (3) one of the risks of res ipsa loquitur is the tendency to use it too much, causing it to slide into strict liability (where every accident constitutes negligence)

After plaintiff successfully meets criteria of res ipsa loquitur, defendant can attack by(1) Defendant can prove the actual cause of the accident(2) Defendant can show that other parties may have caused negligent act(3) Can show that other common, non-negligent causes of this type of accident(4) Can argue that he generally exercised due care (can backfire if negligence seems even more

likely if that is the case)

Examples of Res Ipsa LoquiturByrne v. Boadle (p.92); Barrel of flour fell out of the sky and struck the plaintiff; plaintiff won

Sub-Rule: Res ipsa loquitur can be instructed when the type of accident, which, on the basis of common experience and as a matter of general knowledge, would not occur but for the failure to exercise reasonable care by the person who had control

McDougald v. Perry (p.95); Spare tire crashed into plaintiff’s windshield; plaintiff won; spare tire escaping from underneath the vehicle fits res ipsa loquitur criteria

Winner: 1) There are many events, such as the fall of an elevator, the escape of gas or water from mains or electricity from wires or appliances, the derailment of trains, or the explosion of boilers, where such things do not usually happen unless someone is negligentSub-Rule: The defendant has the duty of producing evidence rebutting negligence when the chief evidence of the true cause is practically accessible to him but inaccessible to the injured person

Ybarra v. Spangard (p.102); Plaintiff received an injury to his right arm while he was unconscious on the operating table

Change: -If you are run over by a negligent hit and run driver as you cross the road and all you can tell is the type of care, you could not jointly sue all local owners of that type of car (they must all be negligent in some way and generally court must also be sure their negligence caused injury)

Strict Liability

One who carries on an abnormally dangerous activity (used to be ultrahazardous activity) is subject to liability for harm to the person even if he has exercised the utmost care to prevent the harm; however, strict liability is limited to the type of harm that made the conduct abnormally dangerous Implications: (1) Strict liability focuses on the general activity, not this particular act/activity; is the activity itself an unreasonable activity; focus is on whether the defendant owed an absolute duty to avoid injuring plaintiff (liability flows from the very choice to conduct the activity at all) or only a duty to exercise reasonable care (negligence)

(2) The threat of liability will encourage actors to forgo these risky activities entirely by considering alternatives ways of achieving the same goal (reflect the true cost of the activity)

(3) Investment in safety under negligence or strict liability regime is theoretically the same; under negligence, plaintiff absorbs the damages (costs are distributed to those who are unlucky and plaintiff provides a subsidy to those businesses); under a strict liability regime, defendant has to pay (costs distributed to users and investors), which will discourage activity or make defendant bear the burden

(4) Strict liability was developed in part because of the difficulties encountered by plaintiffs attempting to prove negligence; also if businesses are posing risks that are of a larger magnitude and quality they might be held liable based on reciprocity of risk (ordinary risks of daily life versus unusual risk (person who is imposing a lot of risk versus everyone also who is only imposing ordinary risk))

Factors in determining what is Abnormally Dangerous Activities

(1) New Test According to Restatement 3 rd 20 There is strict liability for harm resulting from the conduct by D of abnormally dangerous activities; an activity is abnormally dangerous if

(A) The activity creates a foreseeable and highly significant risk (high probability of occurrence and harm will be great) of physical harm even when all actors exercise reasonable care; and Implications: (1) first three factors of 520 are incorporated into standard that reflects the inability to make the activity reasonably safe by exercising due care

(B) The activity is not one of common usage Implications: (1) Gets rid of fifth and sixth factors (appropriate locale and the importance of the activity to the community)

(2) Restatement 2 nd 520 (1) Extent of risk - The existence of a high degree of risk of some harm to the person, land, chattel

or others(2) Likelihood that the harm that results from it will be great(3) Ability to Eliminate Risk - Inability to eliminate the risk by reasonable care(4) Extent to which the activity is not a matter of common usage (5) Location - Inappropriateness of the activity to the place where it is carried on(6) Social Utility -Extent to which its value to the community is outweighed by its dangerous

attributes (are there substitutes available or is the act so superior that liability is unlikely to have any effect expect to raise the activity’s costs)

(3) Examples of Abnormally Dangerous or Ultrahazardous Activities (1) Explosives (risk is great)Rule: When rights conflict, it is better that one man should surrender a particular use of his land than that another should be deprived of the beneficial use of his property altogetherException: if the act that occurred was accidental, rather than intentionalImplications: (1) The safety of property generally is superior in right to a particular use of a single piece of property by its owner; (2) the hardship should be placed on the one who causes the injury; (3) safety of person is more important than safety of property

Sullivan (p.514); landowner employed two men to dynamite a tree; fragment of wood went onto the highway and killed person

(2) Rampaging animals (victimizes neighbors)(3) Environmental pollution (victimizes neighbors)(4) Planes falling from the sky (no way to protect oneself)(5) Ballooning (wasn’t very frequent)(6) Water escaping from land (neighbors victimized)Rule: A person who uses his land for his own purposes is liable for all of the damages it does to another person’s property if it is a natural consequence of the actException: if the act occurred due to the plaintiff’s fault or the act was the consequence of a force of nature or an act of God

Implications: (1) Involves using land in a “non-natural use” or characteristics of property that “are not naturally there;” now, the contractors would be liable because we have a general duty of care (in past, contractors only had a duty to defendant whose land they were working on); (2) use your property so as not to injure another’ s property

Rylands (p.506); water broke out of a reservoir and damaged plaintiff’s property; defendant did not know of the latent defect in the subsoil; plaintiff wins

(4) Where Strict Liability Is Inappropriate Hammontree v. Jenner (p.3); the Court ruled that the trial court did not commit an error in refusing to give instructions to the jury based on absolute liability; principles of negligence apply to personal injury cases arising out of automobile accidents

Loser: -Plaintiffs wanted the instructions to say that if the evidence showed that Jenner lost his ability to safely operate a vehicle because of his health condition, he is liable even if the driver had no warning of the impending health failure

(5) Defenses (1) Defenses: Strict liability can be defended against (1) if plaintiff assumed the risk; if P knowingly and unreasonably subjects himself to risk, there are grounds for contributory negligence; and (2) on public policy considerations (absurd results)

(2) Strict liability is virtually never absolute even thought it does not require fault; for example, in addition to establishing that the defendant’s product caused the injury (absolute liability), the plaintiff must also establish a defect in the product and that his or her own conduct did not help cause the injury

(3) If P is a participant in the activity, P cannot assert a strict liability claim (P is securing some benefit from activity or obligation is imposed by the law)

(4) Activity should remain in negligenceRule: When the hazards of an activity can be avoided by being careful (non-negligent), there is no need to switch to strict liabilityException: Strict liability is appropriate when a particular accident cannot be prevented by taking care, but can be avoided or minimized by appropriate actsImplications: (1) A question of law; strict liability gives an incentive to experiment with methods of preventing accidents by relocating, changing, or reducing the activity giving rise to the accident; (2) when we fail to impose strict liability, we do not want to create an affirmative duty

Indiana Railroad (p.519); chemicals spilled and caused decontamination costs for the railroad; plaintiff can claim for negligence, not strict liability

Winner: (1) The leak was caused by carelessness(2) If a tank car is carefully maintained, the danger of the spill is very small

Products Liability

Product was involved in injury to person or propertyImplications: (1) An enterprise has superior risk-bearing capacity compared to victims who would otherwise bear the costs of accidents(2) An enterprise is generally better placed to respond to safety incentives created by liability rules than is the party suffering harm (assuming that they could reduce accident costs more cheaply-reduce the number and severity of accidents; incentive to promote safer conduct),(3) Consumer expectations and reliance (4) Problems of proof(5) Fairness since employer reaps benefits of products

(1) Parties (who can sue and who can be sued?)(A) If the person did not buy product (privity; foreseeability)

Rule: Manufacturer owes a duty of care to all those who may foreseeably be injured by its product (users and consumers and all persons foreseeably exposed to the risk) Implications: (1) there must be knowledge that in the usual course of events the danger will be shared by others than the buyer; (2) foresight of the consequences involves the creation of a duty

MacPherson (p.550); the wheel of the automobile was made of defective wood Loser: 1) The duty should be limited to the contracted party (to prevent unlimited liability since insurance has to be able to determine risk)Winner: (1) The nature of an automobile gives warning of the probable danger if its construction is defective; moreover, it knew that the car would be used by persons other than the buyer, since it had multiple seats

(B) If the defendant did not conclusively cause the defectRule: As long as the plaintiff did not cause the defect, the seller is responsible for selling a defective product even if the defect was introduced without any fault on his part Exception: if the defendants can sort it out, then only one party is liableImplications: (1) the question becomes when the defect was introduced (before or after the sale); (2) in a negligence case, the problem of proving causation since we do not know who caused the defect; in strict liability, the plaintiff does not have to know

Welge (p.568); peanut jar shatters; plaintiff sues the manufacturer, filler of jar (planters), and seller (Kmart)

Loser: 1) The plaintiff should have to prove who caused the defectWinner: (1) defectively sold product; plaintiffs can use res ipsa loquitur methods to meet the burden of production in terms of who caused the harm

(C) DefendantsIn strict liability, defendant is the manufacturer of the product and of the component part which was defective and all downstream business vendors; reasonable standard for negligence (for people not engaged in business of selling)

(2) Is the product defective (not just product, but defective product that caused injury)?(A) Defective at time it was sold by party or was it caused by plaintiff’s misuse

Product was not defective but the product was used in truly unforeseeable ways that the manufacturer would not have reasonably anticipated when it made the productImplications: (1) there would be evidence against both manufacturing defect (no defect present) and design/warning defect since there was no way to foresee the possibility; (2) otherwise, if plaintiff could prove the product was defective, her misuse of it would be involved in comparative negligence

(B) Tests for defective condition of products Restatement 402 (A) D is strictly liable for physical harm to P or his property caused by a defective condition of a product which renders it unreasonably dangerous; recovery is available:

(1) By a user or consumer(2) From a seller who is engaged in the business of selling the product(3) For physical harm

(A) Caused by defective product Just because a product causes injury, does not mean it is defective

(B) That is unreasonably dangerousIt is unreasonably dangerous if it is dangerous to extent beyond that which would be contemplated by the ordinary consumer who purchases it

3 rd Restatement (2b) -still using consumer expectations for manufacturing defects-use risk utility test for design defects and warranties

-Plaintiff also has to prove that there is a reasonable alternative design (makes it more complex)(C) Different kinds of defects

(1) Design Defects (intended design was flawed and unsafe; product just has to be reasonably safe – there are always ways to make it safer)

(A) Consumer Expectation Test (402 A) The product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner (B) Risk/Utility Test (2b) (which generally also includes proof of reasonable alternative design) Implications: (1) Risk-benefit balancing test (determining whether the risk of danger inherent in the challenged design outweighs the benefits of such design) is similar to Hand test except focus is on product and not the conduct of the manufacturer; (2) Consumer expectations test is not helpful because consumer expectations are basically that the product not injure them; (3) generally need expert witnesses to evaluate the unreasonableness of the design and the efficacy of alternative designsThe risk could be greater than the usefulness of the product and then it is possible to find that it is unreasonably dangerous to place in the stream of commerce unless the risk can be reducedImplications: (1) the fact that the dangers of a product are open and obvious does not constitute a defense to a claim alleging that the product is unreasonably dangerous; (2) the primary focus must remain upon the nature of the product under all relevant circumstances rather than upon the conduct

of either the consumer or the manufacturer; (3) risk-utility test is fault-based; (4) manufacturer should build enough safety to address foreseeable misuses of the product

Camacho (p.584); leg protection devices were not installed on motorcycle Loser: 1) In this case, the consumer is capable of assessing the danger of the productWinner: (1) Motorcycles are inherently dangerous and cannot be made perfectly

(2) It is not whether the vehicle was obviously unsafe but rather whether the degree of inherent dangerousness could or should have been significantly reduced (C) Both Tests Rule: The consumer expectations test is reserved for cases in which the everyday experience of the product’s users permits a conclusion that the product’s design violated minimum safety assumptions Implications: (1) a complex product, even when it is being used as intended, may often cause injury in a way that does not engage its ordinary consumer’s reasonable minimum assumptions about safe performance; (2) the risk-utility test does not require proof that the design is the safest possible alternative

Soule (p.571); the floorboard of her car collapsed into plaintiff’s ankles; the plaintiff alleged both manufacturing and design defects

Loser: 1) The injuries were caused by the impact of the collision, not the defect (causation) and plaintiff was not wearing a seatbelt so that is the reason she slide into itWinner: (1) Since this is a more complex item, they use the risk-utility test

(2) Manufacturing Defects (error in particular product unit because of an error or omission in manufacturing, assembly, or processing; the product did not meet the manufacturer’s own specifications for the product; have to know which product was defective before strict liability)Rule: Strict liability for manufacturing defects; it does not matter if the defect occurred due to negligent actions on the defendant’s part (concurring opinion) Implications: (1) Even if the company has a very careful manufacturing process, but the process goes awry in a few instances, this is typical case for strict liability; however, this becomes a different problem if the manufacturing itself causes a few instances, then potentially a duty to at least warn

Escola (p.556); a soda bottle broke in plaintiff’s hand; plaintiff can reach jury Winner: (1) The trial court justified imposing liability based on res ipsa loquitur since there was sufficient showing that either excessive pressure or a defect in the glass would not ordinarily have been present if due care had been used (thus, it was due to negligence) and defendant had exclusive control over both the charging and inspection of the bottles (in this case, the majority was still relying on negligence standard; res ipsa loquitur would have not been necessary if it was strict liability)

Proof of Defect Plaintiff does not necessarily have to prove the specific defect in the product to recoverThe existence of an unspecified manufacturing defect may be shown by circumstantial evidence (similar to res ipsa loquitur); it may be inferred that the harm sustained by the plaintiff was caused by a product defect, without proof of a specific defect when the incident that harmed the plaintiff (a) was a kind that ordinarily occurs as a result of a product defect, and (b) was not, in the particular case, solely the result of causes other than product defect existing at the time of sale or distribution

Rationale for Strict Liability (1) The increasing sophistication of products makes it difficult for consumers to assess their risks, emphasizing the need for manufacturers to do so(2) The lack of any personal relationships between manufacturers and consumers means that buyers cannot rely on such relationships to assure quality(3) Manufacturers encourage purchase of their products by extensive advertising

(3) Defects in Warnings or Instructions For Use (many products are safe if used as intended, but pose risks of injury if not properly used)Implications: (1) The user is often the cheapest cost avoider since he can avoid the risk by taking precautions in using it while redesigning the product to eliminate the risk would be considerably more costly or even impossible (when we cannot design a risk out, then the requirement of warning becomes necessary); (2) In effect, warning claims are negligence claims (A) Whether any words at all are needed or whether it is common knowledge

-dangers of drinking a large quantity of tequila in a short period of time-riding unrestrained in the cargo bed of a pickup truck

(B) The adequacy of the warning Rule: A clear and specific warning will normally be sufficient; the manufacturer need not warn of every mishap or source of injury that the mind can imagine flowing from the product (should warn about foreseeable misuses and inform consumer of the nature and extent of the risk posed by ignoring the instructions (although court rejects this in Hood)Implications: (1) Whether the benefits of a more detailed warning outweigh the costs of requiring the change; (2) well-meaning attempts to warn of every possible accident lead to warnings that are too long to read and too technical to understand; (3) the question of adequacy is generally a question of fact, unless the case is clear; (4) Inclusion of each extra item in a warning dilutes the punch of the other items

Hood (p.596); despite numerous warnings about not removing guard, plaintiff removed the blade guards and the spinning saw blade flew off the saw

Loser: 1) Warnings were insufficiently specific 2) The actual consequences of such conduct should be stated

Winner: (1) Hood has thus not shown that these clear, unmistakable, and prominent warnings are insufficient to accomplish their purpose (3) Failure to warn must be the cause of injury There is a rebuttable heeding presumption requiring the party responsible for the inadequate warning to show that the user would not have heeded an adequate warning (defendant’s burden)Plaintiff would have read, understood, and heeded the warning or instructions that should have accompanied the product if they had been provided (4) Whom does the warning have to be given? Generally to the ultimate user, but not in situations that fall under the learned intermediary doctrineThe learned intermediary doctrine shields manufacturers of prescription drugs from liability if the manufacturer adequately warns the prescribing physicians of the dangers of the drug

Edwards (p.607); Man was not aware of risk of smoking cigarettes while wearing a nicotine patch, but his doctor was aware; learned intermediary should not apply due to FDA rule

Winner: (1) Since the FDA mandates that a warning be given directly to the consumer, this is an exception to the learned intermediary doctrine

(3) Causation Issue (did the defect cause the harm; both cause in fact and proximate cause)(A) Misuse (If the misuse led to a completely unforeseeable type of harm, D is not liable due to

the lack of proximate cause; does not apply to foreseeable misuses)(B) Lack of adequate warning caused injury (see above)

(4) What do we do about the plaintiff’s conduct (should it be compared)(A) Comparative Negligence or Responsibility

Rule: Under comparative responsibility, a court reduces the claimant’s damages recovery by the percentage of responsibility attributed to him by the trier of fact (includes strict liability); a plaintiff’s conduct other than the mere failure to discover or guard against a product defect is subject to comparative responsibilityImplications: (1) The question of whether we compare P and D’s conduct is a question of law

Sanchez (p.620); person was pinned between the open gate door and the cab of truck when he left pickup truck on and the gear slipped from the perched position between the two drives; plaintiff and defendant’s conduct should be compared

Loser: 1) This was caused by defect in the truck’s transmission Winner: (1) Performing any of the safety measures described in the owner’s manual would have prevented the accident

(2) Danger that the car could roll, or move if the engine is running, exists independently of the possibility of a mis-shift

(B) Implied Assumption of Risk (using product after discovering the defect)Plaintiff’s conscious choice to encounter the risk is a form of comparative fault

Causation

Two causation requirements: 1) cause in fact and 2) proximate causeRule: The test for cause in fact is would the injury have occurred were it not for the actor’s negligent conduct; the second component of legal cause is proximate cause, which have defined as the actual cause that is a substantial factor in the resulting harm (whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant’s negligence)

Cause In Fact The negligent conduct must cause the injury (for example, a driver on the road who is drunk is not inherently liable for anything bad that happens, but rather only for the things his negligent behavior

caused to happen (an unimpaired driver would have been able to break in time, but defendant was not able to brake due to intoxication)

1) “But For” Test (the event (in which plaintiff was hurt) would not occur but for defendant’s negligent actions)

If X had not occurred, Y would not have occurred; the act had to be necessary for the resulting harm to occur (act is not a cause of the event if the event would have occurred without it)Covers when two defendants, through negligent actions, each contribute to causing an indivisible injury to plaintiff (even if it is impossible to determine exactly how much of the injury was attributable to each act); they are both liable for full injury (my hitting pole with truck combined with you banging the pole with baseball bat later leads to the pole falling and causing plaintiff’s injuries)

2) Substantial Factor Test (designed for when “but for” test doesn’t work); (defendant’s negligent actions would have been sufficient to cause the event(in which the plaintiff was hurt) )

Primary function of the substantial factor test was to permit the factfinder to decide that factual cause existed when there were two separate causal chains sufficient to bring about the plaintiff's harm, thereby rendering neither a but-for causeException: defendant should not be held liable if the harm would have occurred even if actor had not been negligent (jury question)Implications: (1) Plaintiff need not prove that defendant's tortious conduct was the predominant or primary cause of the harm; (2) need causation because we do not want to over-deter (3) but for test does not work appropriately with multiple sufficient causes (two fires burn separately but then arrive simultaneously at the plaintiff’s home and burn it down); if a sequential fire occurred, the first person can say the house is only worth any value for 45 more minutes and second person can say that there were no damages so on public policy grounds, judges have generally held them both liable; (4) If you have sequential actions that caused indivisible injuries, the plaintiff must prove that the second act caused injuries over and above the damages of the initial impact; once this is done, the burden shifts to the defendants to show which injuries were attributable to the original collision and which to the subsequent action (easier problem than Tice because both actors have caused some part of the injury)

Are we sure the alleged agent of harm caused the injury?

1) Several Possible Causes-Both Negligent and Non-negligent (Environmental Issues) When there are several possible causes of injury for one or more of which the defendant is not responsible, the party must establish facts that prove with reasonable certainty that the direct cause of the injury was the one for which the defendant was liable; then the party has fulfilled his duty of causation and the jury can decide Implications: (1) Fine line between inference and speculation; (2) first, have to show that that variation/bad result was likely caused by the negligent act; second, hard to determine whether individual got the disease because of the negligent act or whether actor got the disease because of natural occurrence; (3) evidence must show that the toxic substance is capable of causing the plaintiff’s disease (general causation) and whether it actually did cause it (specific causation)

Stubbs (p.340); drinking water from sewage system caused typhoid fever; plaintiff “won”

2) Hard to Separate Effects of Negligent Act from Normal ActRule: When the actor's conduct is tortious only because it is marginally more risky than non-tortious conduct, the causal inquiry must be framed by the incremental risk of the tortious conduct as distinguished from the risk posed by the entirety of the conduct; thus, the causal inquiry asks whether the harm would have occurred if the actor had not acted tortuouslyImplications: (1) have to prove the negligent act (overdose) caused the damages, not just the normal dosage; (2) If the negligent act was deemed wrongful because the act increased the chances that a particular type of accident would occur, this is enough to support a finding by jury that the negligent behavior caused the harm

Zuchowicz (p.347); plaintiff died of primary pulmonary hypertension, which might have been caused by taking a negligent dosage of medicine or non-negligent dosage; plaintiff “wins”

3) Lost Opportunity/ Loss Chance (Injury might have happened anyway)Rule: Plaintiff can recover for the lost chance of avoiding the physical harm; damages should be awarded on a proportional basis as determined by the percentage value of the patient’s chance for a better outcome prior to a negligent actException: this is largely confined to medical malpracticeImplications: (1) Plaintiff can still recover when the defendant did not cause the injury, but instead the health care provider’s negligence reduced the chance of avoiding the injury sustained; (2) plaintiff could get damages and still survive; (3) plaintiff has to prove that there was a better than even chance for a good outcome, before lost chance can be considered; (4) lost chance is similar to losing a lottery ticket

Alberts (p.360); Accused doctor of malpractice in amputation of leg because there might have been opportunity to save it; plaintiff “loses”

Winner: (1) Expert did not pinpoint a time when the disease became irreversible, nor a time when earlier intervention would have changed the outcome

Are we sure we know who caused the harm? Traditional tort doctrine says you absolutely have to have the right defendant

-Ybarra (doctors in room)/race cars (should collective group be held responsible (concerted action?); concerted action is harder when there are people who are not blameworthy as opposed to everyone engaging in a negligent act (drag racing)

1) Multiple Defendants Who Might Have Done HarmRule: Where two or more defendants both commit negligent acts that are substantially similar and (2) they were acting in concert, one of which caused the plaintiff’s injury, the burden of proof shifts to each defendant to show that he did not cause the harmException: Case falls apart once you have actors that are not blameworthy (unless mutual supervision duties as in Ybarra)

Summers (p.375); Two hunters shot plaintiff, but only one of those shots was in the eye

Change: -as the amount of defendants increases (no longer 50% chance that actor caused harm), the courts become more reluctant to impose liability

2) Who Caused Bad Result For Specific ActorRule: Instead of determining the exact actor who caused the negligence, the question becomes who contributed to the creation of the general risk of injuryImplications: (1)damages are determined by the amount of risk each created; (2) however, defendants will be held liable in some cases when they did not cause the harm, but the damages should be the appropriate proportion in the long run (national market share concept)

Hymowitz (p.379); DES pregnancy drug caused problems for offspring; it is nearly impossible to distinguish who made the drug; this is a singular exception since the product is an identical

Proximate Cause -defendants cannot be held liable for every consequence of their conduct, even if it was negligent; the question is whether the harm which occurred was of the same general nature as a foreseeable risk created by a defendant’s negligence

Foreseeability of the Consequences (Cause Question)

1) Unexpected Extent of Harm (where a particular type of injury is foreseeable, the defendant is liable for the injury sustained, even though it is more serious than might have been anticipated)

Eggshell plaintiff rule: The defendant must take his plaintiff as he finds him, even if that means that the defendant must compensate the plaintiff for harm an ordinary person would not have sufferedException: If the act was just a precipitating factor, prior tendencies of plaintiff may affect damagesImplications: (1) egg shell plaintiff rule is more about fairness to plaintiff than fairness/incentive to defendant; (2) one who has failed to use the care required to protect others in light of expectable forces should not be exonerated when the very risks that rendered his conduct negligent produced other and more serious consequences to such persons that were fairly foreseeable when he fell short of what the law demanded

Benn(p.401); Plaintiff died of heart attack six days after car accident caused a bruised chest and fractured ankle; plaintiff won after introducing expert testimony that the stresses of the accident and subsequent treatment were responsible for his heart attack and death

Change: -May be limited even when action is foreseeable because of the crushing liability that it would impose (limiting person that started a fire to the next lot it burned)

2) Unexpected Kind of Harm (if the plaintiff’s injury is beyond the type of harm anticipated from the defendant’s conduct, the plaintiff will virtually always go uncompensated; however, action does not have to be likely or probable in order to be foreseeable)

Rule: Defendant is liable if his conduct is the “direct cause” of the plaintiff’s injury (it follows in an unbroken natural sequence from the effect of D’s act, without the intervention of any external forces which were not then in active operationImplications: (1) Direct cause is generally not used anymore because it would cut off liability where subsequent conduct contributes to the accident; (2) Actors would not have considered unforeseeable results in the calculation of incentives; (3) only liable for negligent acts for the kinds of risk actor can anticipate; (4) foreseeability questions involve whether reasonable care was exercised

Polemis (p.406); Fire resulted from a board dropping on a ship; although the explosion was deemed unforeseeable, the defendant was found liable because the negligent act of its employee was the direct cause of the harm

Liability is limited to those foreseeable consequences which made D’s conduct tortious in the first placeImplications: (1) harm experienced should be related to the risk that was created; (2) court considers what the risks were that made the defendant’s conduct negligent in the first place; (3) it would be wrong that a man should be liable for damage unpredictable by a reasonable man because it was direct or natural and it would be wrong that he should escape liability because the damage was indirect if he foresaw or could reasonably foresee the intervening events which led to its being done; (4) if we define negligence as a breach of reasonable care, it has to be linked to foreseeable consequences (only be measured by whether person took enough care to prevent a particular outcome; otherwise calculation of care would be completely different)

Wagon Mound (p.409); Oil released in water ended up leading to fire when it ignited because of a piece of debris; the oil was unlikely to burn but other injury to the dock was foreseeable such as the fouling of the docks by the oil

Loser: 1) Since the defendant could foresee some injury to the dock, it was liable for all injury which actually resulted

2) If the defendant is guilty of some negligence, he is responsible for all the consequences whether reasonably foreseeable or notWinner: (1) The plaintiff could only recover for the injuries it should have anticipated at the time it released the oil into the water; it should be liable for the foreseeable consequence (fouling of docks) but not for the unforeseeable consequence (the fire)Change: -plaintiff in this case could not argue risk of fire was foreseeable since he (as well as defendant) had determined that it was not foreseeable (hence, he would be contributorily negligent); in Wagon Mound II, the plaintiff was the owner of ship and court ruled in his favor since discharging of oil could not be justified, despite the small risk of fire, because of the major damage it could do

-No proximate cause where the act of not warning was negligent in regards to rat poison of lake, but death occurred due to act of not warning about drowning (non-negligent)

3) Unexpected Manner Harm Coming About Rule: When foreseeable consequences of a negligent act take place in an unusual manner, the defendant should still be held liableImplications: (1) The general nature of the accident threatened by the conduct took place

Hines (p.423); defendant did not maintain part of highway so there was a mud hole in road; idea was to prevent people from types of injuries such as breaking leg; defendant broke his leg but in a very unexpected, freakish way

4) Superseding Causes (action so dramatic that the original actor can be excused from fault because a later act supersedes her negligence and breaks the casual chain)

-bizarre, unforeseeable events give rise to a risk different from the one the defendant should have anticipated (based on general principle that actors are not liable for truly unforeseeable harm))-frequently made in cases involving subsequent intentional acts by third parties (including criminal)

Rule: A negligent defendant, whose conduct creates or increases the risk of a particular harm and is a substantial factor in causing that harm, is not relieved from liability by the intervention of another person, except where the harm is intentionally caused by the third person and is not within the scope of risk created by the defendant’s conduct Implications: (1) In addition to third-party conduct, courts sometimes concluded that a plaintiff’s culpable conduct constituted a superseding cause; (2) easier version of superseding cause because it is a criminal act; (3) interwoven with consideration of duty (might have changed if apartment owner had allowed broken lock to go unfixed and actor got into building and raped tenant)

Doe (p.416); Person was raped in a secluded place that had bush and small grass Winner: (1) The harm she suffered cannot reasonably be understood as within the scope of risk created by the defendant’s conduct

Scope/General Nature of the Risk

5) Unexpected Victim/Foreseeability of the Plaintiff (duty analysis)Rule: The plaintiff must show a wrong to herself and not merely a wrong to someone else (duty not to the general world, but to a foreseeable plaintiff); defendant is not subject to liability unless D breached a duty owed to P, not to someone else (persons within the foreseeable zone of danger) Implications: (1) the risk reasonably to be perceived defines the duty to be obeyed; it is a risk to another within the range of apprehension; (2) a standard of care is in reference to what the actor is trying to do (a negligent act is only negligent in the context of the risk the act imposes on others); (3) actor is expected to examine the range of people that might be reasonably anticipated to be affected and the duty toward these people

Palsgraf (p.425); Guard pushed man carrying a package containing fireworks; fireworks explosion caused scales on platform to fall, which caused injury to woman

Winner: (1) The railroad’s negligence only posed a foreseeable risk of injury to the passenger or his package; it was the explosion that was the proximate cause, and the railroad could not have reasonably anticipated such a disaster

(2)There was no duty of care to woman in regards to pushing the passenger(3) Otherwise, people cannot adequately choose their behavior

Damages

Nominal Damages1) Nominal damages are awarded to plaintiff who has proved a cause of action but has not established that he is entitled to compensatory damages

Compensatory Damages1) Plaintiff must seek all his damages at a single point

Economic Loss Damages (identifiable monetary losses)1) Medical, hospital, and rehabilitative costs2) Lost wages, earnings or profits (differences in society are reinforced)3) Substitute labor4) Custodial care

Insurance 1) Collateral Source Rule If an injured party receives compensation for the injuries from a source independent of the tortfeasor, the payment should not be deducted from the damages that the tortfeasor must payRule: The collateral source rule also applies to payments from family or friendsException: possibly, if the wrongdoer’s family or friends might pay the victim’s bills out of a sense of moral obligation or atonement, the tortfeasor may be entitled to an offset to carry out the donor’s intent and avoid a double recoveryImplications: (1) Do not want prudent persons to suffer from protecting themselves (economic incentive argument) (assumption is built in that a lot of insurance is good); (2) do we want to fluctuate the price of deterrence based on the plaintiff’s insurance; also, deterrence costs tend to be higher for victims of higher wages (possibly could offset each other)

Arambula (p.732); Despite being injured, plaintiff continued to receive weekly salary from his family-owned business

2) Which InsuranceImplications: (1) There are high costs in re-shifting the loss from first-party insurance to the tortfeasor; however, if the defendant does not bear the costs of his action, deterrence is not possible; (2) Third-party insurers tend to have highest transaction costs because they have to investigate the claims of negligence; when first-party insurers pay out, the costs are much lower because person only has to submit receipts (3) main concern about moving to a first-party insurance system is moral hazard (people may not behave as carefully) and moralistic/fairness considerationsRule: There is an obligation placed on the homeowner’s insurance company through the common-law theory of negligently permitting the use and operation of a dangerous mechanism

Lalomia (p.790); Boy got in accident with a motorized bicycle; the homeowner’s insurance of the defendant and the plaintiff’s automobile insurance company provide coverage for this accident

Winner: (1) The homeowner’s insurance covers accidents that are caused by the negligent behavior by the father; father has to be negligent in entrusting the boy with the vehicle and the boy had to be negligent in operating the motorized bike

A) First party insurance (protection of the insured from the direct adverse economic effects of a particular event)

B) Third Party Insurance (taken out to protect the insured against the economic impact of having to pay damages to another person) Implications: (1) The old system of indemnity insurance (the company agreed that if the insured was required to pay a victim for an accident and actually did pay, the insurer would reimburse the insured for that amount) versus liability insurance (the insurer became obligated to pay the victim up to the policy’s limits when the insured’s liability was established)Rule: Although the behavior of the company may have been negligent, it was not enough to support a bad faith claim, which requires a gross disregard for the insured’s interests (a deliberate or reckless failure to place on equal footing the interests of its insured with its own interests when considering a settlement offer)Implications: (1) Victims’ expectations of damages generally match the insurance policy limits; (2) whenever an insurer is presented with a settlement offer within policy limits a conflict arises between the insurer’s interest in minimizing its payments and the insured’s interest in avoiding liability beyond the policy limits

Pavia (p.798); insurance company investigated whether it was their insured’s fault, settlement was passed by initially, and eventually insured lost money over policy limits and brought bad faith claim

Winner: (1) The plaintiff in a bad faith action must show that the insured lost an actual opportunity to settle the claim at a time when all serious doubts about the insured’s liability were removed; bad faith is established only where the liability is clear and the potential recovery far exceeds the insurance coverageInsurance coverage excludes those actions that are intentional; therefore, if plaintiff is injured by intentional act of defendant, then may not recover from insurance company

C) SubrogationRule: In the absence of a subrogation agreement between the insurer and the insured, an insurer has no right to share in the proceeds of the insured’s recovery against a tortfeasorImplications: (1) After this case, insurers put the subrogation clause into their insurance contracts; many also require that they receive all of the money until they are paid

Frost (p.772); insurance company wanted right of subrogation (reimbursement) if insured recovered even though the policy contains no express provision for subrogation rights

Non-Economic Losses1) Loss of consortium (enjoying satisfaction of relating to the other person)

-generally limited to spouses

2) Pain and suffering (past and future)

The pain and suffering damages rewarded in this case were not high enough to shock the conscience and give rise to the presumption that it was the result of passion or prejudice on the part of the jurorsImplications: (1) In an effort to reduce the size of damage awards, some states set maximum amounts that may be awarded for “pain and suffering;” (2) may suggest a need for a different trial phase for establishing negligence and determining damages

Seffert (p.699); plaintiff was trying to enter bus when doors closed catching her right hand and right foot; bus dragged her for some distance before throwing her to the pavement

3) Mental or emotional distressA) Fright and shock; anxiety about future; loss of peace of mind, happiness; humiliation,

embarrassmentB) Loss of enjoyment of life (debate about whether this should be a separate category)

(1)Cognitive awareness is a prerequisite to recovery for loss of enjoyment of life; (2) Pain and suffering and loss of enjoyment of life should not be looked at separately

since it will not lead to a more accurate estimationImplications: (1) Paradoxically, the greater the degree of brain injury inflicted, the smaller the award the plaintiff can recover in general damages; the temptation to achieve balance between injury and damages has nothing to do with meaningful compensation for the victim; instead it has to be with the temptation to punish the defendant in proportion to the harm inflicted

McDougald(p.718); plaintiff’s injuries were so severe that she was incapable of either experiencing pain or appreciating her condition

Loser: 1) It is a measure of what the person can no longer doWinner: (1) Is there any utility to giving person who is unaware damages for loss of enjoyment of loss; if the person cannot enjoy the money, what is the point

Ways To Determine Damages 1) Multiplier effect (penny a second as an example)2) How much would you be paid to change places with the victim; before the fact, the figure is

often huge; however, once someone has the condition, the amount tends to go down a lot

Punitive DamagesImplications: (1) Punitive damages may be necessary due to the under-enforcement of torts claims (tortfeasor will not be discovered 100% of the time and harm to each person is small so sometimes there will be no litigation due to costs); (2) Almost all states have concluded that sometimes damages may be awarded to punish the defendant or to make an example of that defendant so that others will avoid very serious misconduct (deterrence is ineffective if defendant is unaware that punitive damages are likely to result); (3) The law of several states bars the insurability of punitive damages; however, punitive damages are being awarded for conduct that is not all that different from negligenceRule: Punitive damages may be awarded by a jury if the defendant exhibited a conscious disregard of the safety of others

Taylor (p.740); chronic drunk driver, had previously caused a serious accident Winner: (1) There had to be the intent to injury or the knowledge that the injury was likely to occur (first-time drunk driving offender may naively believe that he can control the car)

Rule: Three guideposts for punitive damages: (1) reprehensibility of the conduct (consider whether physical, a reckless disregard or indifference to the health and safety of others, the conduct was repeated, and the harm was intentional malice); (2) disparity between compensatory damages and punitive damages (a single-digit ratio); (3) the consideration of other penalties awarded in similar casesImplications: (1) Courts have imposed a duty on insurers to settle within the policy limits whenever reasonable to counter the incentive of insurers to undervalue a huge potential monetary loss to the plaintiff due to the coverage limit

State Farm (p.749); insurance company declined offers for settlement and ended up losing a huge amount for plaintiff; jury awarded $145 million against insurance company in punitive damages compared to only $1 million in compensatory damages; punitive award was neither reasonable nor proportionate to the wrong committed (violated due process clause)

Winner: (1) State does not have a legitimate concern in punishing a defendant for acts committed outside of the state’s jurisdiction; moreover, the court punished conduct and acts which bore no relation to the Campbell’s harm; punishment on this basis leads to the possibility of multiple punitive damage awards for the same conduct since nonparties are not bound by the judgment the plaintiff obtains

Liability of Multiple Defendants

Joint and Several Liability (see Cause in Fact Section)Joint=defendant cannot sue other defendants for contributionJoint and several=defendant is liable for whole judgment but can get contribution from othersSeveral=defendants are liable only for their proportion of damages

When the conduct of two actors combines to injure the plaintiffException: Does not apply when the defendants caused separate damages or where the damages could be rationally apportioned separately to the tortfeasor

Situations for joint liability: 1) concert in action (multiple people agree to do something together and common activity causes the injury); 2) successive tortfeasors (concurrent or sequential actions that cause an indivisible injury); 3) successive independent events which cause an indivisible injuryImplications: (1) One of the incentives of joint and several liability is that defendants may start giving up information to identify the true person that was negligent; (2) joint liability makes sure the plaintiff is fully compensated as long as one of the tortfeasors is able to pay the judgment

-negligent and intentional conduct can be compared to allocate fault (rapist and negligent apartment renter); a defendant who is negligent because of a failure to protect the plaintiff from the specific risk of an intentional tort is jointly and severally liable for the intentional tortfeasor’s share of fault

Defenses

Factors to Consider in Assigning Negligence Damages(1) How much fault defendant must have for recovery

(a) Any amount(b) Greater than (51%)(c) As great (50%)

(2) How is plaintiff’s fault compared to the defendants(a) to each defendant’s fault individually(b) to the total negligence of the defendants together

(3) What happens when one defendant settles(a) the total award can be reduced by dollar amount of settlement(b) the total award can be reduced by percent that defendant is found at fault(c) pro rata credit (assumes each defendant is equally liable)

Uniform Comparative Fault Act (p.447) (1) Joint and Several Liability for all defendants who are negligent or subject to strict liability(2) If one party defaults, then his amount is split among defendants and plaintiff according to their respective percentages of fault(3) Settlement reduces money available by dollar amount person settled for(4) Pure form(5) In assigning fault, the trier of fact shall consider the nature of the conduct (the degree of outrageousness and reasonableness) and the extent of the causal relation between the conduct and damages claimed (both cause in fact and proximate cause issues)(6) Defendants can seek pro rata contribution from one another (aka two defendants, each pays half) as long as that defendant has not settled

When P’s conduct creates an unreasonable risk of harm to P and which combines with D’s negligence to cause P’s injury

1) Contributory Negligence (not very common anymore)-same general rules and tests apply to determine contributory negligence as negligence-P’s contributory negligence used to be a complete defense and totally bar recovery

2) Last Clear Chance (important for contributory negligence)D’s negligence is later in time than P’s contributory negligence; thus, P is in a zone of danger from which he cannot escape in time, leaving D with the last opportunity to do something to prevent the harm which otherwise will occur; if D negligently fails to prevent the harm, he is not permitted to use P’s prior negligence as a defense

3) Comparative Negligence

Plaintiff’s negligence is defined by the applicable standard for a defendant’s negligence (Restatement Third §3)Under comparative negligence, P’s negligence generally is not a complete bar, but instead reduces P’s damages by the proportion which P’s fault bears to the total fault causing P’s harmImplications: (1) if settlement occurs, plaintiff absorbs the full loss of settled defendant’s fault; then gaming occurs in court between plaintiff and the remaining defendant(s) in arguing for fault allocation; (2) comparative negligence is not used as incentive, but rather a sense of justice for defendant

A) Pure form – P may recover a portion of his damages no matter how great his negligence-gives incentive for P to find every possible defendant

B) Modified Form (most jurisdictions) – P recovers nothing if his negligence was “as great” (50%, Type 1) or “greater than” (51%, Type 2) the negligence of D

C) Disaggregated Modified Form – if plaintiff is more at fault than any defendant, plaintiff would not get any damages (A-40%, B-30%, C-29%, D-1%); several liability also

Rule: Under the guise of contributory negligence, a defendant may not avoid liability for his negligence by asserting plaintiff’s unrelated previous negligenceImplications: (1) Generally, courts want to treat these as two separate cases because do not want to let doctor get off the hook; (2) moreover, in almost all medical claims, your action has happened because of some negligence

Fritts (p.459); Drinking that caused accident; doctor unsuccessfully tried to use that accident as contributory negligence for the doctor’s negligent operation

Winner: (1) Defendant’s conduct was unrelated to his medical treatment

4) Avoidable ConsequencesEven if the accident was entirely the defendant’s fault, the plaintiff’s recovery might be reduced to the extent that he failed to exercise due care after accident (mitigate damages)

-failure to obtain medical attention or follow medical advice-should the defendant have to subsidize failure to follow medical advice/religious preferences

(person choosing not to smoke, eggshell plaintiff rule) or does the burden get put on plaintiff; is this a right or a privilege)

-anticipatory mitigation (seatbelts); for excess damages incurred by failing to use seatbelt, the damages could be split or put on either side (comparing damages for two different types of injury-car crash damages and the damages from not wearing a seatbelt)

5) Assumption of Risk A person who is aware of a risk and knowingly decides to encounter it accepts responsibility for the consequences of that decision and may not hold a defendant who created the risk liable for the resulting injury (with comparative negligence, express assumption and primary implied assumption go to the

elements instead of being a separate defense; only secondary implied is addressing comparative negligence)

A) Express Assumption of Risk (Duty or Breach of Duty) (“privatizing the duty of care”)Parties agree in advance (usually in a written contract) that the defendant need not exercise due care for the safety of the plaintiff or to allow a lesser level of care; these agreements are generally upheld as long as they are not against public policy and plaintiff entered into it voluntarily and with full informationException: (1) this may be barred in situations where it would undermine legislative intent; (2) does a warning sign signify that the defendant has no duty or does it notify person that act could still happen despite the defendant’s care (no breach of duty)Implications: (1) This raises two types of questions: 1) will the contracts enforce the most clearly drafted contract given the type of activity involved; and 2) if so, is the contract sufficiently clear; (2) does not include situational coercion (essential service – hospital); (3) question of duty of care

Dalury (p.467); Plaintiff was injured while skiing at resort but had signed agreement holding defendant not liable for negligent acts

Winner: (1) Skiers are not in a position to discover and correct risks of harm

B) Primary Implied Assumption of Risk (breach of duty question; no negligence)Primary implied assumption of risk arises when the plaintiff impliedly assumes those risks that are inseparable (inherent) from the activity itself (aka not negligently created) Implications: (1) Defendant is under no duty to offer the activity and plaintiff is under no duty to attempt the activity and there are certain unavoidable risks of injury; (2) no breach of duty of care; certain risks are unavoidable at a reasonable cost

Rule: One who takes part in activity accepts the dangers that are inherent in it so far as they are obvious (so actors can make a voluntary decision) and necessary (cannot be avoided)Exception: If the dangers inherent in the activity were obscure or unobserved or so serious, precautions of some kind must be taken to avert them; (2) if the accidents had been so many as to show that the game in its inherent nature was too dangerous to be continued without change Implications: (1) liberty verus public policy, such as boxers; (2) are there some activities that need to be prevented because no matter the amount of warnings, people will be unable to stop; (3) this case is actually about the lack of breach of duty

Murphy (p.475); defendant got hurt on the “Flopper” when he fell after a jerkWinner: (1) Nothing happened to the plaintiff except what common experience tells us may happen at any time as the consequence of a sudden fall

C) Secondary Implied Assumption of Risk (Comparative Negligence)Secondary implied assumption of risk arises when the plaintiff knowingly (was the decision truly informed?) and voluntarily (as opposed to situationally coerced?) encounters a risk created by the defendant’s negligence (plaintiff must first establish a case of negligence); if plaintiff is reasonable-full recovery (assumption of risk does not exist); if plaintiff is unreasonable, comparative fault applies

Implications: (1) Secondary unreasonable assumption of risk can be treated as form of comparative negligence but it is unclear how reasonable assumption of risk fits

Rule: Plaintiff should not be completely barred from recovery when he voluntarily assumes a risk, without assessing whether his assumption of risk was reasonable or unreasonable (situationally coerced)Exception: Express assumption and primary assumption of risk remain compatible with comparative negligenceImplications: (1) Purpose of comparative negligence is to apportion fault; (2) purpose of defense of assumption of risk is to prevent a person who knowingly and voluntarily incurs a risk of harm from holding another person liable

Davenport (p.482); plaintiff was injured while descending a stairway near his apartment because of his misstep due to broken floodlights; he could have chosen two other stairways that were farther away; compare negligence of plaintiff and defendant

Different Perspectives on Assumption of Risk - Assumption of risk is a complete bar to recovery

-Divide assumption of risk into reasonable and unreasonable assumptions (if the assumption of the risk was negligent, we are going to offset; if plaintiff reasonably assumed that risk and knew what he was doing, then plaintiff will not be able to recover)

-Majority approach-abolish implied assumption of risk and completely merger it into comparative negligence (reasonable results in recovery; unreasonable leads to offset)

5) Pre-emptionA defense claim that the common law tort action is overridden by legislative or regulatory standards intended to pre-empt tort claimsImplications: (1) Under the supremacy clause of the U.S. Constitution, federal law is supreme over state law; when a federal statute or regulations expressly or impliedly preempt a particular field, state tort law either cannot regulate the field at all or cannot impose a higher standard than the applicable federal law; whether a federal statute or regulation is preemptive is a question of statutory interpretationRule: There is implied pre-emption of the tort action because it conflicts with the objectives of the federal actImplications: (1) If state regulations were harsher, then it would make it difficult for car manufacturers because they would have to design two different kinds of automobiles; thus if you allowed states to have separate regulations, the car manufacturer would probably have to design to the highest standard by default, making the federal law de facto defunct and interfering with interstate commerce

Geier (p.497); plaintiff claimed that Honda designed its car negligently and defectively because it lacked a driver’s side airbag; claim is pre-empted

Loser: 1) Act sets a minimum airbag standard

Winner: (1) Challenging the no airbag standard is against the objectives of the act since it was designed to allow companies to gradually phase in alternative passive restraint devicesChange: -If you could come up with the something different from the design standard, the tort claim would not be precluded (duty to warn/misrepresentation)