TORTS

ContentsProcedure.......................................................................................................................................................3

I. P’s prima facie case...........................................................................................................................3

II. D can offer affirmative defenses........................................................................................................3

III. Common argument.............................................................................................................................3

Intentional Torts..........................................................................................................................................4

I. Types of Intentional Torts..................................................................................................................4

0. Definition of Intent............................................................................................................................4

1. Battery................................................................................................................................................5

2. Assault................................................................................................................................................6

3. Intentional Infliction of Emotional Distress......................................................................................7

4. Trespass..............................................................................................................................................8

II. Defenses to Intentional Torts.............................................................................................................9

1. Consent..............................................................................................................................................9

2. Necessity..........................................................................................................................................11

3. Insanity (Limited)............................................................................................................................12

Negligence...................................................................................................................................................13

I. Goals of Tort Law............................................................................................................................13

II. PF Elements of Negligence..............................................................................................................14

III. Duty.................................................................................................................................................15

1. Rescue / Giving Aid.....................................................................................................................15

2. Special Relationships...................................................................................................................17

3. Landowner Liability [type of Special Relationship]....................................................................20

4. Exception: Familial Immunity.....................................................................................................21

3. Emotional Injury [Negligent Infliction of Emotional Distress]...................................................22

4. Economic Injury...........................................................................................................................23

IV. Breach.............................................................................................................................................24

1. Reasonable Person (Objective Standard).....................................................................................24

2. Risk Calculus...............................................................................................................................26

3. Custom.........................................................................................................................................27

4. Statutes.........................................................................................................................................30

5. The Role of Judges and Juries in Deciding Breach.....................................................................32

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6. Proof / Res Ipsa Loquitor.............................................................................................................34

V. Causation........................................................................................................................................36

1. Cause-in-Fact...............................................................................................................................36

2. Proximate Cause..........................................................................................................................40

1. Purpose & Justification................................................................................................................40

2. Majority Test: Foreseeability.......................................................................................................40

2. Minority Test: Directness / Causal Connection...........................................................................45

3. Minority Test: Andrews Palsgraf Dissent / Skeptical Hodge-Podge..........................................45

VI. Defenses to Negligence...................................................................................................................46

0. Overview......................................................................................................................................46

1. Contributory Negligence..............................................................................................................47

2. Comparative Negligence..............................................................................................................50

4. Assumption of the Risk................................................................................................................51

Strict Liability............................................................................................................................................53

Overview..................................................................................................................................................53

Policy Rationales.....................................................................................................................................54

RTT §20: Abnormally Dangerous Activities...........................................................................................55

Vicarious Liability / Respondeat Superior...............................................................................................57

Products Liability.......................................................................................................................................59

Overview..................................................................................................................................................59

I. The Law Today.....................................................................................................................................60

A. Manufacturing Defects....................................................................................................................60

B. Design Defects................................................................................................................................61

II. Evolution.............................................................................................................................................63

1. Contract Privity............................................................................................................................63

2. A. Negligence..............................................................................................................................63

2. B. Contract Warranty...................................................................................................................64

3. A. Strict Liability (Tort Side).......................................................................................................64

4. A. Strict Liability (Contract Side)................................................................................................65

Damages......................................................................................................................................................66

Overview..................................................................................................................................................66

I. Compensatory......................................................................................................................................67

II. Punitive................................................................................................................................................69

III. Emotional Damages...........................................................................................................................71

IIII. Economic Damages..........................................................................................................................71

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ProcedureI. P’s prima facie case1. P has to prove every element of his prima facie case

a. Battery: Contact, intend contact, intend H&O (sometimes), contact, no consentb. Assault: Act, intent, reasonable apprehensionc. Trespass: Intent (to complete physical act), actd. IIED: Intent/Reckless, act, emotional distresse. N: duty, breach, causation, damages,f. SL: SL category, causation, damages

2. D can rebut any element in P’s PF casea. i.e, not proximate cause (not harm within the risk)

3. Either party can move for a directed verdict on either an element or the whole thinga. Even if everything the other party is saying is true, no reasonable juror could find me liableb. Could be missing an element, didn’t prove an element, or impossible to infer N or something

II. D can offer affirmative defenses1. Battery: consent2. Trespass: necessity3. Sometimes insanity4. N: hold me to a lower standard of care5. N: Cnt N, Assumption of the risk, Cmp N

a. Still has to prove duty, breach, causation, and damagesb. P breached a duty to exercise reasonable care to protect himself from harm and caused harm

to himself6. SL: Cmp N

III.Common argument1. Limitless liability: if you impose liability here, that will mean that all X will be liable for Y2. The legislature, not the courts should be doing this3. Fear of over-deterring (people will no longer do this activity)4. Fear of increasing costs to the point that people will no longer engage in this activity5. X is the best risk/loss spreader6. X is the cheapest cost avoider7. Deeper pocket8. Is this abnormally dangerous? SL then.9. Hope

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Intentional Torts

I. Types of Intentional Torts0. Definition of Intent10. A person acts with the intent to produce a consequence if (RTT §1)

a. The persons acts with the purpose of producing that consequence orb. The person acts knowing that the consequence is substantially certain to result

11. D can have purpose without having knowledge of substantial certainty and can have KSC without having purpose

a. Garrat v Dailey [kid pulls out chair from grandma] tells us that we can infer from a D having KSC that he had intent. In other words, ksc is evidence of purpose

12. Transferred Intent: can transfer intent from one person to anothera. Talmudge v Smith tells us intending to hit person A but actually hitting person B does not

mean that you did not have intenti. You had intent to hit a specific person, therefore you had intent

ii. Also, even if she only threw the stick to scare them, she would be held liable1. The kids would have suffered from imminent apprehension of a contact,

which the RST states as equivalent to contact

13. Intent has to be specific, not generala. Shaw v Brown & Tobacco

i. Generalized knowledge is insufficient to satisfy intentii. In Talmudge's case, the stick had a particular target. In this case, smoke did not

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1. Battery1. A battery occurs when a person acts with intent to cause an unauthorized contact and the contact

results. Vosburg.

2. A person has the required intent if his purpose is to cause contact or he knows to substantial certainty that contact will occur.

3. Do not need to contact the person: can contact something else, which sets in motion a force that causes the person to contact something else (Garret pulling out the chair); will need knowledge for this

4. Single Intent: D need only intend contact; whether or not he intended harm or offense does not matter (Vosburg Rule)

a. D actsb. D intends contactc. Contact resultsd. Contact is without consent (either implicit or explicit)e. Vosburg

i. F: kid kicked another kid. Caused massive damage. Egg-shell plaintiffii. H: On the hook for all damages that occurred, not just the ones he intended

iii. R: You intend one thing – you intend them all; thin-skull plaintiff; concept of implied consent: if this kick had happened on the playground, it’s one thing. Not here.

f. White v University of Idaho: The only intent needed is the intent for contact i. F: Piano teacher touched woman’s back. She got hurt. Didn’t matter how slight the

contact was.

5. Dual Intent: D must intend contact and intend for that contact to be harmful or offensive (RST §13)a. D actsb. D intends contactc. D intends harm or offensed. Contact results (either directly or indirectly)e. RST §13. Battery: An actor is subject to liability to another for battery if

1. He acts intending to cause a harmful or offensive contact with person of the other or a third person or an imminent apprehension of such a contact and

2. A harmful contact with the person of the other directly or indirectly results

6. Tortfeasor is liable for all injuries that result; not simply those that he intended or foresaw (eggshell P)

7. Defenses: Consent and insanity (sometimes)

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2. Assault1. An assault is intentionally placing another in reasonable apprehension of imminent contact to their

person.

2. To constitute assault, there must be:a. An act (words alone do not constitute assault)b. Intent to cause contact or the apprehension of contactc. Other person has to believe that contact is imminent

3. An actor is subject to liability to another for assault if (RST §21)a. He acts intending to cause a H/O contact with the person of the other or a third person, or an

imminent apprehension of such a contact andb. The other is thereby put in such imminent apprehension

4. RST §24. Apprehension:a. It is not necessary that the other believe that the act done by the actor will be effective in

inflicting the intended contact upon him. It is enough that he believes that the act is capable of immediately inflicting the contact upon him unless sometime further occurs.

5. Reasons for assault liabilitya. Inchoate violence (not fully formed - will lead to violence)b. Protection against coercionc. Compensation for emotional injuries

i. I De S. (p55): 14th century case where man attacked bar with an axe

6. The mental state of the victim matters, not the secret intentions of the threatenera. See: Allen v Hanaford [gun/moving]

i. D pointed an unloaded gun at P when Pii. Doesn’t matter that the gun was unloaded, since P did not know that

iii. The court said, "whether there is an assault…depends more upon the apprehensions created in the mind of the person assaulted than upon what the secret intentions of the person committing the assault"

1. Yu have to be pretty sure that contact is imminent, cannot simply be scarediv. Court quoted from Beach v Hancock:

1. Each of us shall feel secure against unlawful assaults2. Without such security society loses most of its value

7. Tuberville v Savage (1669)a. The intention as well as the act make an assaultb. A guy putting his hand on his sword and saying, "I wouldn't take such language from you if

the judges weren't in town," does not constitute assault (he straight up said he wasn't going to hit her)

c. If one strikes another on the hand in conversation, it is not assaultd. But it is assault if

i. You, intending to assault, strike at another, orii. You hold up your hand in a threatening manner and say nothing

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3. Intentional Infliction of Emotional Distress1. IIED occurs where the plaintiff suffers severe emotional distress as a result of the defendant

intentionally or recklessly conducting himself in either an extreme or outrageous manner.

a. The conduct is extreme and outrageous [controls for subjective liability]b. Carried out intentionally or recklessly c. Which causes severe emotional distress [controls for triviality]

2. RST §46. Outrageous Conduct Causing Severe Emotional Distressa. One who by extreme and outrageous conduct intentionally or recklessly causes severe

emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm

b. Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress

a. To a member of such person's immediate family who is present at the time, whether or not such distress results in bodily harm, or

b. To any other person who is present at the time, if such distress results in bodily harmc. Caveat - may be other situations under which the actor may be subject to liability under IIED

3. Wilkison v. Downton: if the defendant willingly does something to infringe on another person's right to personal safety, then the other person can recover for emotional damages

a. F: D told P that her husband was hit by a car and under a tree; she freaked outb. R: Reasoning is similar to Vosburg / egg-shell plaintiff - liable for all harm, not just intended

harm. A reasonable person would’ve freaked out too.

4. Reasonable test: If a reasonable person would have reacted in a similar way as the P, D is on the hook for damages

5. IIED really gets down to outrageousness:a. Gap-filler for Coercion (stuff that doesn't really fit into assault)

i. State Rubbish Collectors: Threatened use of force - strong-arm tactics - not really assault but courts still had a problem with it

b. Repeated activity: George v Jordan [bill collectors]c. Knowledge of risk, over objections by plaintiff, from positions of authorityd. IIED is really about policing social norms

6. Emotion distress can be a result of another torta. Old view was that there is no liability for ED; damages are only recoverable as part of

another tort (parasitic)i. Trespassers are liable to respond in damages for injuries that result naturally,

necessarily, directly, and proximately in consequence of his wrongii. Bouillon (p68): recovered parasitically from trespass

a. F: D's meter reader tried to force his way in through the front door of the P's apartment while the P was pregnant and at risk for a miscarriage. Meter reader had nasty exchanges with nurse and the open door let in a cold air. P was sick after the interaction and the next day had a miscarriage.

iii. Emotional injuries are tied to physical acts - in this case, the trespasser physically invaded her space

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4. Trespass1. One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to

any legally protected interest of the other, if he intentionally, (1) enters land in the possession of the other, or causes a thing or a third person to do so, (2) remains on the land, or (3) fails to remove from the land a thing which he is under a duty to remove.

2. Every unauthorized and willful entry of the close of another is trespass. Does not matter if no harm is committed

a. Dougherty v. Steppi. F: D entered P’s unenclosed land with a surveyor; though it was his land; didn’t

cut anything downii. H: Trespass

iii. R: He violated the right to exclude others from the land; trespass even though he thought it was his own land

3. The only intention needed for trespass is the intention to complete the physical act of trespass; not an intent to cause harm

a. Cleveland Park v Perry: do not need to intend the injury; just the physical acti. F: Kid put a ball on a pool drain. He removed the cover and inserted a rubber ball.

The ball was sucked down and got caught in the pipe.ii. R: Kid intended to physically put the ball on the drain; doesn’t matter that he didn’t

intend for the ball to do down the drain; that one intent is enough for trespass

4. Defenses: Necessity

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II. Defenses to Intentional Torts1. Consent1. Generally, consent is a defense to all intentional torts

2. Consent can either be an affirmative defense or a failure in P’s prima facie case.

3. Scope of authorized contact is defined by the context. Vosburg: playing on the playground tacitly consent to incidental contact.

4. Consent converts one behavior into another. Protects autonomy, control of body, emotional security

5. Consent can either be express or implied (from conduct or context)a. Express: athletic eventsb. Implied: Vosburg (consent can be implied if on the school-yard; not in the class-room)

6. Consent is to be judged from the defendant's perspectivea. Would a reasonable D have consented?b. D can't just say they made a mistake and didn't really want to consent anymorec. Two rules regarding the consent to an illegal action:

7. Majority rule – cannot consent to illegal activitya. Cannot consent to illegal contact / breach of peace, even if the situation may inherently be a

breach of the peace. Reason - you wrong the state by breaching the peace

8. Minority rule - can consent to illegal activitya. If you consent to the rules of activity, you cannot hold the other person liable (§60)b. Exception §61: Except where there is a statute in place that protects a certain class of persons

from their inability to appreciate the consequences of such invasionsc. Hudson v Craft (21) [illegal prizefighting]

i. F: Promotor organized illegal prize-fights. P was 18. P consented to the fight, but was seriously injured. Sued the organizer.

ii. H: D is liable for assault and battery for conducting unregulated and illegal sporting events, even though both contestants consented.

iii. R: Promoter’s actions overrode the D’s consent. The purpose of regulating the boxing industry is to protect dumb boxers from harm. Cannot simply hide behind consent. That would undermine the point of the law. Promoter was the prime mover in setting up the fights. They’re being protected from his conduct.

9. Statutory rape casesa. Barton - courts were worried about incentivizing underage sex (kinda BS)b. Christensen: Modern majority rule: anyone under the legal age cannot legally consent to sex.

10. Athletic injuries: You consent to anything within the scope of your activity [hockey player hitting another with his stick]; but not deliberately illegal blows.

a. Deliberate rule violations or reckless behavior are considered as beyond the scope of your consent if they are so egregious as to be beyond the expectations of the game

b. Deliberately causing injury, even if it is within scope of the game, is a basis for liabilityc. Hackbart:

i. F: P was hit by the D after an interception. Forced him to retire. Ending his career.

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ii. H: Rules of the game prohibit intentional striking of blows. He did not consent to this when he signed up to play football.

11. Limits to Consenta. Criminal Conduct (according to majority view)b. Capacity (think statutory rape)c. Scope of consent (think excessive injuries from sports)

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2. Necessity1. A D is permitted to trespass on a P’s property if this is reasonably necessary to avoid a substantially

greater harm to the public, himself, or to his property

2. Necessity gives people a privilege to be in the close of another, and therefore make it no longer a trespass

a. Ploof v Putnam (44)i. F: P were caught in a storm on a lake. Tried to moor at D’s land.

ii. H: A party can trespass out of private necessityiii. R: Human life is more valuable than the right to exclude. Necessity gives you a

privilege

3. However, there are limits to necessity: a person can be held liable for damages that arise out of actions they do out of necessity

a. Conditional Privilege: Party can trespass, but only if they pay for damages b. Unjust Enrichment: cannot trespass at the expense of anotherc. Vincent v Lake Erie (11)

i. F: D owned a ship. Moored it at P’s dock during a terrible storm. Consistently replaced lines as they were breaking. Boat was thrown against dock. Damaged it extensively.

ii. H: Trespass exceeded the scope of consentiii. RL They saved the ship by using the dock - dock-owners should be compensated for

use, even if it was out of necessity. Relied on unjust enrichment: ship was saved but at expense of dock. Unfair. Was consistently throwing more ropes to keep it attached. Should be held to pay up.

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3. Insanity (Limited)a. Majority Rule: Insanity is not an excuse for liability

i. McGuire v Almy (p 28)1. F: P was a nurse. D was insane. P entered D’s room one night to calm her down. D was

in a fit – had her arm raised up with a table leg. Hit P.2. H:An insane person, who by his act does intentional damage to a person or property of

another, is liable for the damage in the same circumstances in which a normal person would be liable

3. R: If you have formed the intent to injure, courts will not inquire into how you formed the intent. Insofar as intent is necessary for liability for a normal person, the insane person, to be liable, must been capable of having the same intent.

ii. Gould v American Family Mutual1. When a loss must be borne by one of two innocent persons, it shall be borne by the one

who occasioned it2. Protects bodily integrity

iii. Polmatier v Ross1. Rational choice is not required2. Courts do not care how you come to intent, they just care that you have intent

b. Minority Rule: In order to be held liable, the insane need not intend the specific harm, but they have to understand that the contact may be harmful i. In some places, insanity makes it harder to prove that the actor intended to cause harm or offensei. White v Muniz (handout) and Horton v Reaves

1. F: P is a nurse. D is old woman with dementia. D hit P when P was trying to change her diaper.

2. R: Dual intent: intend contact and intend harm. The insane might not intend the harm. Have to inquire into that. Do the insane understand that the action they're committing is harming someone else? If yes, there's intent and they're liable. If not, there's no intent (dual version) and they're not liable. Insanity still is not a defense, but it does make it harder to prove the intention to cause harm or offense

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Negligence

I. Goals of Tort Law1. Corrective Justice/Fairness: liability should be placed on the party who wronged the other in order

to rectify the moral balance between them. Morally, D is responsible for repairing wrongs to the P. Often most powerful when the risk that resulted in the harm was a reciprocal one.

2. Economic Efficiency/Deterrence: liability should be placed where it will have the optimal level of deterrence. Examines the whole system, not just these two actors. Goal is to deter excessively risky behavior.

a. Cheapest Cost Avoider: Liability should be placed on the party who can most cheaply avoid the loss. Considerations include (1) knowledge, (2) control, (3) actually ability to avoid the risk.

b. Loss Spreader: Liability should be placed on the party who is best able to spread the cost of the harm. Often used to justify placing liability on large companies, who can either (1) buy insurance to mitigate the harm or (2) increase the cost of the good slightly and pass the costs along to the consumers. This means that everyone pays a little rather than one person bearing one overwhelming burden.

c. Coase Theorem: Liability should be placed where parties would themselves place it if they had the ability to bargain (assuming no transaction costs)

d. Hand Formula: Liability should be placed on the party whose precaution was cheaper than the probability of the harm occurring*the harm

3. Compensation: Tort law promotes the compensation of those who have suffered injury4. Administrative Concerns: Tort law should take into account the judicial system

5. Evolution of N in cases

a. Bolton v Stone (p129) held that a defendant is liable if they disregard/took a not small risk that resulted in the injury or harm of another [cricket ball over the fence]

i. Liability depends on the size/chances of the riskii. Original ruling was SL

1. Here, they viewed torts as private, and private debts have to be repaidiii. But here, since the risk was so small, they are not negligent

b. Hammontree (p 129)i. Guy had a seizure and crashed into someone's business

ii. The court ruled that SL cannot apply here - D was not N iii. The seizure was not foreseeable; he did not behave unreasonablyiv. The point of this case is to show that some people view torts as regulatory

1. Meaning, we allocate liability to increase social welfarea. We need to fashion incentives that reduce the costs of accidents and

their prevention (here, there was no way he could have prepared for this accident)

b. If this was treated as a SL, we would be punishing the D for something he had not control over

c. Negligence imposes liability only when it spots a shortfall in the D's basic behavior

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II. PF Elements of Negligence

P must prove that (1) D had a duty of care, (2) that he breached that duty, (3) the breach was the actual and proximate cause, and (4) his damages.

a. Dutyi. Varies according to relationship

ii. Defines the standard to which you are heldiii. MATTER OF LAW: decided by judges

b. Breachi. RPM, risk calculus

ii. Customiii. Statutory Niv. RIL

c. Causation (was your breach of duty the cause of the harm?i. Proximate causation

ii. Causation in factd. Damages

i. Have to prove harm, not just a wrongful act (like you would have to in intentional torts - higher bar)

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III.Duty1. Generally, the only the duty a person has to another is to exercise reasonable care.2. Duty is a matter of law and is decided by judges3. Duty operates on categories; judges decides who falls into these categories4. Functions of Duty

a. Establishes degree dutyb. Calibrates the standard of carec. Limits liability to certain types of harms

1. Rescue / Giving Aid 1. Generally, there is not duty to provide assistance to prevent harm (i.e., rescue) that you didn’t cause

a. Autonomy: A’s need does not create a right to use B (claim on B)b. Efficiency/Utilitarian: A duty to aid would be too great a burden; everyone’s better off

pursuing their individual interestsc. Empirical: We rescue anyway. Imposing a duty may mess with the incentives to rescue.

2. Busch v. Amory (511): Nonfeasance is not the same as misfeasance.a. F: 8yo kid wandered into factory; owner saw him; kid didn’t leave; kid got hurtb. H: Owner had no affirmative duty to prevent harm to the kid.c. R: Difference between misfeasance and nonfeasance. Here, the owner did not have a duty

warn/rescue the kid.

3. Yania v. Bigan: no legal duty to rescue, even when it is easya. F: A dared B to jump in a pool in a quarry (they were business competitors). B drowned.b. H: No duty to rescue.c. R: Strict autonomy. B did it of his own free will. Cannot claim a right on A b/c of that.

4. Hurley v. Eddingfield: duty does not arise out of a contractual relationshipa. F: Small-town doctor refused to aid dying person.b. H: Doctor was under no obligation to rescue.c. R: This wasn’t a personal relationship (arose out of K); state licensing system does not

impose a duty to help everyone, does not ensure a service, it’s preventive. It would be too great a burden on doctors, fear of disincentivization. If he was paid, it would become a forced exchange and dr would just become a tool for the patient (loss of liberty)

5. Ames: argues for Good Samaritan law: one who fails to save another from death or grave bodily harm, when he might to do so with little inconvenience on him, should be punished criminally (enacted by VT).

a. Utilitarian argument: social welfare; liberty isn’t absolute

6. Epstein: critiques Ames. Where do you draw the line? Autonomy argument: tests of reasonableness would make it impossible to tell where liberty ends and obligations begins. What about forced exchanges (i.e., A gives B money to aid A): can A really claim B just b/c he gave him money?

7. Exceptions: there is a duty to provide assistance to prevent harm when the actor (1) N created the risk, (2) N began a rescue, or (3) non-N created a risk (sometimes)

a. Negligently created the riski. Marshall v. Nugent: this can be treated as PC or duty; he’s liable under PC.

b. Negligently began a rescue

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i. If you choose to rescue, in absence of a duty, you’re liable if you negligently rescue or give up (leaving rescuee worse off). RST §324.

ii. Zelenko v. Gimbel Bros1. F: P got sick in D’s store. D took P to back room (nurse station). Did nothing

else. P died.2. R: Once you begin a rescue, you have a duty to non-N complete it. He hid

the D and prevented others from coming to his aid.c. Non-negligently created the risk

i. D is liable when:1. D non-negligently created a highly foreseeable risk to a helpless P2. D knows or should have known of this risk3. D had time to take additional, reasonable precautions to prevent the harm

ii. Montgomery v. National Convoy & Trucking1. F: D’s trucked stalled (non-N) and blocked the road. Knew he couldn’t be

seen until oncoming car was 50 feet away (he was on top of a hill). Did not put up flares or markets, even though he knew of danger (since his lights were on). P’s car crashed into them.

2. H: D had a duty to warn oncoming cars.3. R: 1) the risk was highly foreseeable: obvious that a car coming up the hill

would not be able to see any obstructions ahead of it. 2) He knew of the risk (left his lights on) and had driven this route before. 3) He had time to take precautions, and the precautions would have been reasonable (just flares0.

8.

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2. Special Relationships

Does A have a duty to prevent B from harming C?

Generally, there is not duty to provide assistance to prevent harm (i.e., rescue) that you didn’t cause. However, courts make exceptions for those who have entered into a special relationship. An actor in a special relationship with another owes the other a duty of reasonable care with regard to risks that arise within the scope of the relationship (RTT §40). Special relationships, then, (1) impose an affirmative duty and (2) tailors the standard of care accordingly (either utmost, reasonable, or willful/wanton).

1. In determining the existence of a special relationship, courts first look to the list in RTT §40a. Common carrier & passengers [Andrews]b. Innkeeper & guestsc. Business/possessor of land that holds its premises open to the public & those who are

lawfully on the premises [landowners]d. Employer & employees who, while at work, are (a) in imminent danger or (b) injured or ill

and thereby rendered helplesse. A school with its students [DiSalvo, Peterson]f. A landlord with its tenants [Kline]g. A custodian with those in custody, if (a) the custodian is required by law to take custody or

voluntarily takes custody of the other, and (b) the custodian has a superior ability to protect the other [Tarasoff]

2. If the special relationship is not recognized by the courts, courts conduct a policy analysis based (1) (1) reliance and dependence and (2) theoretical justifications against no duty. A duty is usually imposed when there is a highly foreseeable risk and a highly foreseeable class of plaintiffs (Kline, Tarasoff)

a. Reliance and dependencei. Special relationships are often recognized by the ceding of self-control from one

party to another. This control is judged on foreseeability, legality, and feasibility.ii. Foreseeability: special relationships are often recognized when there is a foreseeable

risk and a foreseeable class of plaintiffs. Example: Kline. Landlord was on notice of assaults and had reason to expect them to continue.

1. Further, Tarasoff can be argued to either extend or limit foreseeability. a. Extend: foreseeable victim (not perpetrator)b. Limit: the victim herself was named. Super specific.

iii. Legality: legally, the tenant in Kline could not do anything about the state of the common areas. This was within the exclusive legal control of the landlord.

iv. Feasibility: the tenant in Kline could not feasibly undertake protection of the hallways. It is unreasonable to expect her to police the halls on her own. She could not protect herself.

b. Arguments against the underlying principles of no-dutyi. Autonomy: the one in the special relationship usually chooses to enter into that

relationship (the landlord in Kline chose to be a landlord).ii. High Burden : this is not a duty to protect everyone from everything. This is for

highly foreseeable risks for highly foreseeable plaintiffs.

3. Other factors to consider when imposing a duty (old view)a. Foreseeability of the harm – this is most importantb. Closeness of the connection between D’s conduct and the harm on the P

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c. The moral blame attached to the D’s conductd. The extent of the burden on D and the consequences for the community if duty is imposede. The availability and prevalence of insurance that is available if duty is imposed

4. Example of no duty being recognized because of failed policy analysis: Pattona. This was not a recognized relationshipb. The rugby association was not in exclusive control over the players

i. Not legal: players could legally have walked away at any timeii. Not feasible: players could walk away on their own; don’t need the refs to tell them

iii. Other factors that were considered: age level of players, responsibility, level of sport (how intense it was – here, it was club)

5. Landlords have an affirmative duty to (1) exercise reasonable care (2) to protect tenants from assault (3) by unauthorized third parties (4) in common areas. [grounded in r’ship between A and C]

f. Kline v. 1500 Mass. Avei. F: Kline (tenant) was assaulted by a third party in the apartment building’s hallway.

ii. R: LL has exclusive control over hallways, has exclusive power to take preventive action, was on notice of repeated assaults, had every reason to expect that they would continue. LL’s reasonable care is evidenced by what he was doing when the P moved in. P relied on these actions. Breached this when he lowered standard. Costs get passed along to tenants.

iii. Dissent: She didn’t rely on the preventive actions; monthly lease; could have left; freedom of K

g. Burgos v. Aqueduct: Defining PC for this breach depends on if the assailants were tenants or not. If they were not tenants, then it was breach by landlord. But landlord cannot be held liable for unforeseen assaults by one tenant on another.

i. Here, P bore the burden of proof to show that attackers were third-parties

h. Care has to be reasonable (Nivens: security personnel is too much)

i. Risk has be more than miniscule (Shaddy: rape in elevator was not reasonably foreseeable)

j. Risk has to be highly foreseeable. Prior incidents are used to map foreseeability. (Ann M [shopping mall]: no duty to provide mall cops when there had been no previous incidents).

i. DiSalvo: college has no duty to a student who was attacked in a campus parking garage, b/c they had no reason to foresee this attack more so than any other attack

ii. Peterson: reverse DiSalvo. Strict duty. Duty to protect student against a foreseeable criminal assault in broad daylight.

6. Mental Health Specialists / Therapists: Once a therapist has (1) determined, or under professional standards (custom) should have determined, that a patient poses a serious danger of violence to others, (2) she bears a duty to exercise reasonable care (3) to protect the foreseeable victim (4) of that danger. (RTT §41, Tarasoff) [grounded in relationship between A and B]

k. This duty is broadly extended when the patient is in custody (ongoing developed r’ship)

l. When patient is not in custody, it depends on a few narrow factors:

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i. Whether the potential target has been identified. Thompson: kid simply said that he was going to kill someone on his block, not the specific person.

ii. Whether the therapist somehow facilitated the crime / increased the risk. Lundgren: therapist advocated for patient to get his guns back.

iii. Whether the therapist breached some explicit promise to the future victim. Long: therapist promised victim that she would be alerted when abusive husband was freed.

m. Tarasoff v. Regent of U. Cal.i. F: Therapist’s patient (Poddon) killed Tarasoff. Poddon told therapist he was going

to do it. Therapist called the cops, but decided no harm. Therapist did not warn Tarasoff.

ii. R: This was a highly foreseeable risk. Victim was named. Patient was considered in therapist’s custody. Doesn’t matter that therapist didn’t have a special relationship with the victim (C). Therapist only has to take reasonable steps to mitigate harm. Still rely on custom to figure out if threats are real or not.

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3. Landowner Liability [type of Special Relationship]

Generally, landowners have a duty to not use their land in such a way as to harm other people. In other words, however they see fit as long as it doesn’t hurt anyone else. But when someone else comes on to someone’s land, this duty is tailored accordingly.

1. When answering this question, apply all three rules (TX/VA, IA/DC, and CA):a. If person is a Invitee: do TX and then IAb. If person is Licensee: do TX and then IAc. If person is trespasser: do TXd. Do CA no matter what (which is really just IA)

1. There are three general categories of people to whom landowners owe a dutya. Invitees are people present for mutual benefit (i.e., doing business or members of the public

invited to the land)b. Licensees are people present with possessor’s permission or with privilege. This includes

social guests. c. Trespassers are people present without landowner’s permission and without privilege

2. Texas & Virginia retains these three categories. Landowners in TX and VA owe:a. Invitees a duty to take reasonable care that premises are safe against dangers that the

landowner knew or should have known about. Should have known indicates that landowners have a duty to reasonably inspect their premises to learn of any dangers. Think Kline

b. Licensees a duty to warn of non-obvious dangers and of known dangerous conditions.c. Trespassers a duty to not harm willfully or wantonly or with gross negligence (i.e., cannot

set traps).i. Exception: if the landowner knows (or maybe should know) about a particular

trespasser, he owes the trespasser a duty to warn of non-obvious and known dangers. 1. The argument is the known trespasser has implied license to be there.

Further, the other argument is that knowing of the hidden dangers and not telling the known trespasser shows wantonness.

3. Iowa and DC merged the categories of invitee and licensee. Landowners in IA and DC owe:a. Invitees & Licensees a duty to take reasonable care that premises are safe, considering the

following factors (really just a reasonableness analysis)i. the foreseeability or possibility of harm

ii. the purpose for which the entrant enterediii. the time, manner, and circumstances under which the entrant enterediv. the uses to which the premises are put or are expected to be putv. the reasonableness of inspection, repair, or warning, and

vi. the burden on the land occupier and/or community in terms of inconvenience or costs in providing adequate protection

b. Trespasser + Exception is the same as TX and VA

4. New York and California have abolished all categories. There, landowners owe a. Any foreseeable entrant (depending on purpose of entrance, location, past incidents, etc.) to

take reasonable care, considering the IA/DC factors

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4. Exception: Familial Immunity

1. There is no longer any spousal immunity for tortious acts. There are a few exceptions to this rule. a. IIED and NIED: courts do not want to be litigating on adultery, arguments, etc.

2. Parent/Child Immunity: There is no longer a blanket tort immunity for parents and their children. Instead, jurisdictions generally follow one of two paths:

a. Remove parent/child immunity all togetheri. In these jurisdictions, courts adjudicate torts between parents and their children based

on negligence (i.e., how reasonable was it for the parent to do X)ii. Usually goes to the jury to decide how to tailor the reasonably prudent parent

iii. The issue with this approach is that we give juries the ability to determine the reasonableness of a parent. In other words, we take away the parents’ discretion in favor of community norms.

b. Retain immunity for specific categoriesi. In these jurisdictions, immunity is retained for specific categories of activities,

namely, (1) discretionary exercises of authority (disciplinary) and (2) decisions of food and shelter. Goeller.

ii. The issues with this approach are the questions of:1. Who polices the boundary between discretionary authority and not?2. How can you be criminally negligent, but under this model, not have to

compensate the victimc. This debate is similar to Holmes’ judge/jury debate: who is better at making decisions? In

Situation A, we argue that the community (juries) are. In Situation B, we argue that the parents (judges) are.

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3. Emotional Injury [Negligent Infliction of Emotional Distress]

Does A have a duty to prevent causing B emotional injuries, i.e., can B recover for emotional harm if A did not physically injure B?

1. No general duty to avoid negligently causing pure emotional harm

2. Parasitic Rule: If the defendant negligently causes physical harm to the plaintiff, the plaintiff can recover for emotional damages.

3. Physical Harm to P: D causes emotional harm to P through either physical impact or the risk thereofa. Maj: Zone of Danger: P can recover for emotional harm if D negligently risked physical

harm to the P. [similar to assault]. RTT §47(a).i. P has to be in zone of danger

ii. P has to fear for her own safetyiii. P has to suffer substantial emotional injury

b. Min: Physical Impact: P can recover for emotional harm only if D negligently caused physical harm to the P.

i. Mitchell v. Rochester Railway (496)1. F: Horse cart stopped in such that woman’s head was between the two

horses’ heads; woman fainted; miscarriage; sued for NIED2. R: Could not recover since there was no physical impact. Fear of flood of

litigation, unending liability, not even sure miscarriage was P result.ii. This idea can be taken to extremes (slight jolt in minor car-crash, dust in the eye,

mouse hair in soup, etc.)

4. Physical Harm to Bystander: D caused emotional harm to P through physical impact to a third partya. Maj: Restricted Dillon / RTT §48: P can recover for emotional harm if D negligently caused

physical harm to a third party if (1) P perceives the event contemporaneously, and (2) P is a close family member of the third party

i. Dillon v Legg (498)1. F: D ran over kid. Mother and sister both saw it. Mother was outside ZoD,

sister was within it.2. R: Both could recover, regardless of ZoD (which is arbitrary). It’s reasonably

foreseeable that both would suffer emotional damages. Can’t let fear of fraud prevent recovery.

b. Min: Amaya: P can recover for emotional harm if D negligently caused physical harm to a third party if P is in zone of danger.

5. Special Primary Duty: P can recover for emotional harm, without the risk of or occurrence of a physical injury, from D if P & D are in a special relationship or are in the course of a specified category of activity (RTT §47(b)).

a. Examples: doctors, those who are exposed to a disease (i.e., HIV), telling someone a family-member is dead, employer-employee, etc.

6. Limiting recovery to ‘close family members’ and to special relationships mitigates a. Foreseeability (easy to know who will be affected)b. Fraud (reasonable to emotionally distraught)c. Limitless liability (cabins liability to a specific group of people)

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4. Economic Injury Does A have a duty to prevent causing B pure economic injuries? i.e., can B recover for economic harm if A did not physically harm B?

1. P can bring a claim for intentional infliction of economic harm (i.e., fraud, deliberately frustrating K)

2. Parasitic Rule: P can seek damages for economic harm if there was a physical injury

3. Maj: D does not have a duty to avoid negligently causing economic harm to third parties. P cannot recover for economic damages unless there is a physical/personal injury.

a. Robin’s Dry Dock & Repair v. Flinti. F: P chartered the boat from the boat-owner. Boat was damaged and brought to D’s

dry dock. P sought damages for losing out on highly favorable rates while the boat was being repaired.

ii. R: Cannot recover for pure economic harm. There was no physical injury to the Ps; their only connection is the K with the owner. D has no direct duty to avoid causing economic harm to third parties

b. Exceptionsi. Private actions for public nuisance (i.e., private Ps can sue for a D injuring a public

resource that precludes P from working. Think oil spill). Very limitedii. Special relationships: auditors, accountants, surveyors

1. You have a duty because you’re willingly taken on an obligation to do something

2. Failure to do that thing will result in a foreseeable harm to a foreseeable group

4. Min: D has a duty to take reasonable measures to avoid the risk of (1) causing highly foreseeable economic damages (2) to foreseeable class of plaintiffs.

a. People’s Express v. ConRaili. F: ConRail had a chemical spill; had to evacuate a one-mile radius, which included

the terminal People Express operated at.ii. H: Can recover even though there was no physical injury because it was a

foreseeable harm to a foreseeable class of plaintiffs.iii. R: D could foresee the plaintiff: knew the plan was to evacuate a mile around. Could

foresee the harm: shutting down a terminal clearly results in lost revenue. Further, they knew about the chemical and the emergency plan. Everything was foreseeable. Argues that physical injury is an arbitrary rule.

5. Justifications for majority rulea. Lack of foreseeability means there’s no deterrence value: economic harm is difficult to

foresee and take precautions againstb. Doesn’t incentive efficient risk-taking: again, lack of foreseeability. Will act no different.c. Fairness: ought implies can. Liability is potentially disproportionate to damages.d. Fraudulent claims: difficult to prove economic harme. Economic harms aren’t social losses: the market absorbs and redistributes the losses

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IV. Breach1. Reasonable Person (Objective Standard) 1. People are held to the standard of care of the reasonably prudent man. This standard can be

formalized via risk calculus. See below.

2. P will argue that D failed to exhibit the level of care exercised by a reasonable person OR reasonable child OR reasonable person with the disability OR reasonable person with a sudden and unforeseeable mental illness.

3. A person breaches when he either does something that the RPM would not do, or fails to do something that the RPM would do.

4. The standard is objective; not subjective. Set by a community standard: we ask what a RPM ought to have done. If D didn’t do that thing, even if he couldn’t, he’s N.

5. Defendants cannot argue either that (1) this was the best I could do or (2) that he was acting in ‘good faith’ and this was the best he could do.

a. Vaughan v. Menlovei. F: Dumb farmer stacked his hay wrong; hay caught on fire

ii. R: He knew he was stacking the hay wrong; liable for his own neglect. He cannot argue that he was acting ‘in good faith’ or that he thought this was the right way. Can’t hide behind his own idiocy

a. Though harsh, a community standard of N is needed. We ask only what a reasonable ought to have done. If D didn’t do that thing, even if he couldn’t, he is negligent

6. Exceptions to the SOC RPM: (1) children; (2) physical disability; (3) sometimes sudden and unforeseeable mental illness

a. Children: held to the SOC of other children their age, experience, and maturity.i. Roberts v. Ring

1. F: Child jumped in front of D’s car; D hit him2. R: Kids aren’t held to the same SOC; D was N; could’ve slowed down;

should’ve seen himii. Elderly are held to the RMP SOC: they've had more experience, should know better;

there are a large variety of abilities, which is why we need an objective standardiii. Justification

1. CJ: Simply unfair to hold kids liable when they don’t know what’s wrong2. EE: Can’t deter kids; they act irrationally; can’t control their own behavior3. Admin: Everyone knows childish abilities; easy to deal with4. Comp: Kids have no money

iv. Exception to children: if they are engaging in adult activities they are held to the RPM SOC.

1. Daniels v. Evans1. F: P (19yo) was killed in a motorcycle crash2. R: Unreasonable to have different standards of care; contrary to

legislative intent; inimical to public safety to allow some driver to act at a lower standard

2. CJ: unfair to hold people to different standards if doing the same thing3. Safety. Allowing cars to be driven with a child SOC would be unsafe.

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4. EE: Kid drivers are the cheapest cost avoiders (simply don’t drive). We want to deter kids from driving

b. Physical Disability: held to the standard of care of a RP [same disability] personi. We can only hold people liable for what they can physically do

ii. Fletcher v. Aberdeen1. F: Blind man fell into a hole caused by city’s construction.2. H: City was N; should have accounted for people with physical disabilities.

Duty is also affected by physical disabilities: the city's duty was to keep the streets safe for a blind RPM. The blind man was held the SOC blind RPM. It is reasonably foreseeable that disabled persons would be using city sidewalk, so city must take continued precautions on their behalf.

c. Minority rule: You are not liable for negligence if you suffer a sudden and unforeseeable mental illness that effects either your (1) understanding of your behavior or (2) ability to control behavior

i. The majority say that insanity is no defense (McGuire)i. This is like the physical disability - we only hold you liable for what you are

physically capable ofii. Mental capacity does not matter - mental disabilities, dumb people, all held to the

same SOC, unless they fall within the Breunig exceptioniii. Why? Deterrence and compensation. iv. Breunig

1. F: Woman was driving; thought she could fly; Batman2. H: Since the mental illness was not unforeseeable, she was N3. R: She knew she was subject to hallucinations; she should never have

gotten into the car

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2. Risk Calculus 1. Risk calculus formalizes the RPM and approximates the standard of care.

2. Hand formula: you’re N if B < PL [you’re negligent if the cost of your precaution was lower than the probability*magnitude of the harm and you didn’t take that precaution]. Carroll Towing.

a. B = burden of precaution | P = probability | L = loss

3. The reasonableness standard is based on costs and benefits combined with foreseeability

4. The best way to prove N is to point to an untaken precaution

5. Intuitively: Reasonable people take into account the likelihood of injury, the likelihood of success, the severity of the injury, the feasibility of taking precautions, the value of what can be gained and the lost.

6. Blythe v. Birmingham Water Works: how you frame the likelihood of an injury depends on the precautions you take. Precautions taken / not taken are taken into account when considering likelihood of the injury

a. F: Pipes froze in the “storm of the century.” Had no way to foresee the stormb. H: Not negligent, since the storm was unforeseeablec. R: It is reasonable to take precautions for the average weather. Can’t go overboard in

taking precautions. Things are going to happen. We have to take risks. This risk was so improbably.

d. The cost of the increased maintenance would outweigh the potential gain

7. Eckert v. LIRR: human life trumps mostly everything elsea. F: Guy saw kid sitting on train tracks. Went to save him. Got killedb. R: If the RPM believed he could save the kid with little harm to himself, then he has a moral

duty to try and save the kid

8. Carroll Towing: Hand Formulaa. F: NY Harbor during WWII; Carroll tried a tricky maneuver to move a barge; chaos ensued;

a barge was hit; dumped her cargo; gradually sank. The barge had no employee on board. If someone had been on board, he would’ve known the ship was sinking and called for help.

b. H: Barge was N. Should have had someone on board. The B was very small. And the PL was very high (busy harbor, war-time)

9. Duty tailors the SOC: in cases with a higher than reasonable SOC (i.e., utmost), Hand Formula is not too useful

a. Andrews v. US: utmost SOC (very dangerous activity, monopolistic nature, dependence)i. F: P was injured when a bag fell out of the overhead compartment after the plane

landed. ii. H: Since common carriers are held to the utmost standard of care, they’re N.

iii. R: this is a very small breach, but it’s a breach. Airline was on notice (stewards tell people to be careful) that bags could fall out. Could prevent via a cheap precaution: installing nets. Alters the Hand Formula. Held to a different standard

b. Under this SOC, you have to do more than what is cost justified. Even a small risk of injury is enough for liability. Only way you aren't N is if

i. Precautions are prohibitively expensive, orii. Precautions interfere with convenience of customers

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3. Custom 1. Alternative way to figuring out someone’s duty. Custom is at attempt to figure out an independent

standard to which to hold people

2. Rule: Custom is indicative of the SOCa. Adhering to custom is indicative of no negligence (shield)b. Breaking custom is indicative of negligence (sword)c. Custom informs the B (burden of precaution) side of the equation – informs feasibility of

(not) taking precautionsd. Custom is a question of law, not fact

i. TJ Hooper1. Barge didn’t have radios2. Radios were not an established part of barge custom, but other ships used3. Judge held that adhering to custom does not preclude a finding of N4. Applied a rough version of the Hand formula, decided that not having radios

is N, even though it’s not part of the custome. Restatement Third §13(a)-(b)

i. Compliance with the custom of the community is evidence that the actor’s conduct is not N, but does not preclude a finding of N

ii. A departure form custom in a way that increases risk is evidence of the actor’s N but does not require a finding of N

f. Custom is usually used as a sword: you didn’t comply with custom, so you’re Ni. Trimarco v Klein

1. Old shower glass-door, not up to the standards of today2. Couldn’t give custom any conclusive weight3. When do you judge custom? Time of installation? When should he have

changed it?4. The timing matters: either when they originally installed or when he fell – at

what point was he N?

3. Old Rule: Custom is dispositive evidence of Na. If someone adhered to custom, they cannot be found liable for Nb. If someone left custom, they are automatically liable for N

i. Titus [railroad car tied together]1. F: P was killed while working on the RR. The railroad adhered to custom in

using the boards to stabilize the frame2. H: Custom was established via other industry members. Even if it was

dangerous, it would not be Nc. Supported by a theory of autonomy

i. People know the risks of a particular activity (since it is well-established); courts should respect their autonomy and allow them to accept those risks

d. Presupposes a perfect market and knowledgeable consumers/workersi. i.e., the market leads to higher precautions because workers/users will not engage in

an activity if the precaution is too lowe. Arguments in favor of Titus rule (custom is dispositive)

i. Lower administration costs: fewer trials ii. Efficiency

1. If there is an efficient market and knowledgeable consumers, leads to higher precautions

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2. If there are 2 repeat players, each knows the custom and can take individual precaution

1. custom informs the reasonable expectation of both partiesiii. Fairness/CJ: it is unfair to hold one person to a higher standard than what everyone

else is doingiv. Competency: industry is better at knowing what they should do than the courts arev. Autonomy: people are free to assume the risks / paid higher for the risks

f. Arguments against Titus rulei. Incentivizes lower standards: can hide behind ‘everyone is doing this’

ii. No real incentive to invest in higher standards 1. Going outside custom, which would automatically mean N

4. Reaction to Titus Rule: Custom is never relevant for finding Na. Mayhew [hole in the mining platform]

i. F: P fell through a hole in a mining platform. D tried to say custom was to have a railing.

ii. H: Everyone in an industry can be doing something negligent; argues custom is too subjective – we should be holding people to a normative standard

b. This rule is not used anymore. Found to be too extreme

5. Medical Malpractice1. In medical malpractice cases (and some other profession), custom = the standard of care

2. A physician is obligated to exercise the level of care that the average prudent physician would do in similar circumstances. Departure from customary care is dispositive in medical malpractice.

a. It’s the national custom, not local custom (Burne v Belinkoff)b. Practices of an average doctor of that typec. Medical custom must be established by practicing experts in that field

i. i.e., a practicing neurosurgeon testifies for brain surgery custom

3. Potential defense: if there are two schools of thought: 2 ways to do somethinga. As long as you’re within 1 of the 2, you’re not Nb. To establish a school, you need

i. A large number of doctors (quantity), andii. Doctors should be respected (quality)

c. But, if there’s disagreement about 1 not being part of the custom, then it should go to the jury (if not, then directed verdict)

4. Lama v Borrasa. F: P had a hurt back; dr operated twice; failed to order antibiotic; developed infection.b. H: Dr was N in departing from the custom of first ordering conservative treatment

(established by expert testimony)

5. Informed Consent: Medical practitioners have a duty to disclose any risk that the reasonable patient would deem material (not custom. Objective).

a. must allege that (1) dr. failed to disclose a risk, (2) a reasonable patient in the patient’s circumstances would consider the risk relevant in deciding whether to choose the treatment, and (3) the patient (or a reasonable doctor under the minority rule) would have chosen a different treatment if he had been informed [causation]

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i. Materiality is based on if a reasonable person, in what the doctor knew or should have known to be in the patient’s position, would consider a risk to be significant in choosing to either undertake or forego the surgery (Canterbury)

1. Test is hybrid: tailored to patient’s peculiarities but only insofar as the practitioner knew or should have known about these peculiarities

ii. In other words, doctors should disclose 1. What he reasonably believes to be material, and2. What the reasonable patient would likely find material to making his

decision under these circumstances1. Alternatives to treatment2. Result of no treatment3. Hazards of no treatment

iii. Requires experts to judge the materiality of patient concerns

b. Exceptions to Rule:i. Obvious/inherent risks of the operation

ii. When patient is incapacitatediii. Emergency situationsiv. Patient well-being (very narrow)

1. When disclosure might make the patient worse off (anxiety)

c. Minority Rulei. A risk is material if a reasonable medical practitioner would consider it significant

(RPM SOC)ii. Medical practitioners are only obligated to disclose risks that are customarily

disclosed by practitioners in similar practice areas (Custom)iii. Argument: they know better than patients

d. Justification:i. Autonomy of patient – he should make informed choices

ii. Patients are the authority on weighing their own risks/benefits. Doctors should not do that for patients

e. Canterbury v Spencei. F: Dr did not disclose that there was a small chance that surgery could lead to

paralysis. Told no risks at all. Fell off the bed after the operation. Paralyzed.ii. H: Dr should have informed the patient of the risks. A reasonable patient would have

found this significant. Further, it reasonable that the patient would have requested another operation: he was a kid, paralysis is scarier for kids.

6. Justifications for treating medical industry differenta. Competence – doctors know better than courtsb. Institutional differences in incentives

i. Hippocratic Oath; we don’t really need tort law to act as a deterrentc. Professions have more power (cynical argument)

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4. Statutes 1. Like custom, statutes are a way to point to an external indicator for breach of duty2. Statutory negligence is used as a sword, not as a shield3. Failure to obtain a license is sometimes N per se (minority rule), but a majority of states view

licensing as administrative, so rarely statutory N; would depend on the reason the D lacks the license is due to violation of substantive safety rules enforced by the legislature.

4. RULE: Violation of statute is conclusive evidence of breach, if it is a safety statute designed to protect individuals like the plaintiff from the type of injury the plaintiff suffered.

5. RULE: Violation of a statute is conclusive evidence of N (negligence per se) if, (RTT §14):a. The statute is a safety statute (designed to protect against injury)b. The injury that occurred is the type of injury the statute is meant to prevent (narrow)

i. Gorris v Scott: Contagious Disease Act wasn’t meant to protect against livestock from being washed overboard. No N per se.

c. The victim falls within the intended protected class of persons (broad)i. Stimpson v Wellington

1. Injury was to the municipality (trucks ate up the roads)2. Class is easily manipulated if you dig deep enough

ii. Burnett v Imerys Marble1. The injury was meant to protect miners who are engaged in mining2. Even through P technically fell under the definition of a miner (he was a

trucker for the mining co), Court found he wasn’t part of the protected class3. Court looked to intention of the statute, and that was miners who are engaged

in the activity of mining. His injury could’ve occurred independently of mining. It was from trucking.

4. It’s all about foreseeable victims

6. Osborne a. F: D didn’t label poison and sold it to P. P died. This was in violation of a statute.b. H: (1) violated a safety statute, (2) this was the correct type of injury – death by poison, and

(3) this was the right kind of P – a purchaser

7. Statutory Cause of Action: statutes can also generate privates causes of action, whena. Statute explicitly states as muchb. If statute is silent on right of action, then look into whether

i. Creation of such a right would be consistent with legislative schemeii. Recognition of a private right of action would promote legislative purpose

8. Uhr v East Greenbush Cent. School District [scoliosis exam]a. F: D was statutorily obligated to check students’ for scoliosis. Missed D one year. Next year,

D had scoliosis. If they hadn’t missed that year, disease would not have been as badb. H: Plaintiff did not have a statutory cause of action, since a private action is unnecessary for

the enforcement of the statute. Had other means of enforcement: education commissioner can withhold funding, etc. also afraid of allowing the government to be sue-able. Would be against the public interest

9. Courts are generally reluctant to infer private rights of action from the breach of statutory duties created under complex administrative schemes

a. Lucy Webb Hayes Training Schooli. Court held the negligence per se who rob the administrative body of flexibility

(licensing hospitals)

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ii. Didn’t want to make it strict liability right away – court knew flexibility in the statute mattered

b. Elliot v City of New Yorki. Breach of the rules of a subordinate rule-making body did not count as N per se b/c

only the state had the power to pass a statute10. Statutes are used a sword – you violated the statute, you’re negligent

a. Sets the floor – this is the minimum you have to dob. Usually, if you’re following the law, there are other things you need to be doing to be Nc. Exception: comprehensive regulatory schemes could set the SOC

i. The only thing you would have to do is violate the statuteii. Sets the floor and the ceiling

11. Justificationsa. Reasonable people follow the law – easy way to point to the standard of careb. Competence

i. Wisdom, experience of the legislatureii. Conscience of the community making these judgments

c. Knowledge of the legislature – a lot went into deciding this statute is necessary

12. Argument for getting rid of the ‘type of injury’ rue (requirement 2) – Posner, Shaddaya. If person would otherwise have been N and caused an injury, but that injury wasn’t the type

that was meant to be protected, then that person gets an outb. Creates a weird dynamic where you can go free for actually being riskier

13. Exceptions:a. Where abiding by the statute would increase danger, no negligence per se

i. Tillman: walking on the correct side of the road would’ve been more dangerousii. Not required to follow statute would put you at a higher risk

b. Failure to obtain a license is not negligence per se (majority rule)i. There are reasons other than negligence that a person could fail to have a license

ii. Most states view licensing as administrative, i.e., not concerned with safetyiii. Lack of license can be evidence, but is not demonstrativeiv. Michaels v Avitech: old license is not indicative of skillv. Minority rule: failure to obtain a license is negligence per se

1. Licensure is primarily a means to ensure competence by requiring formal education and continued training – failure of license should be regarded as strong evidence of N (statutory N argument)

c. Incapable of compliance (children)i. Everyone has to make reasonable efforts to comply with the statute – if compliance is

insane in the circumstances, then you might get an out

14. Contributory N is not a defense to statutory N

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5. The Role of Judges and Juries in Deciding Breach 1. Judges should grant directed verdicts when,

a. There are no facts in conflictb. Courts have established a certain rule and the defendant clearly broke that rule

i. Baltimore & Ohio RR v Goodman1. Holmes says that the driver should have gotten out his car to see if a train

was coming2. Instituted the ‘stop, look, listen’ rule3. Said that when a person violates this rule, it’s a matter for the judges

ii. A violation of a rule is matter of law2. Holmes – judges should determine rules of negligence3. Juries have to do 2 things – mixed fact and law (Holmes, The Common Law)

a. Find empirical facts (facts)b. Apply facts to the law (law)

4. Juries should decide when,a. There are factual discrepanciesb. Breach is defined under a standard

i. More factual questions at issue1. Juries take into account context2. More likely to be close facts

ii. Even if there no disputes of fact, applying those facts to the law is still murky1. There is room for disagreement if they are using a RPM SOC

c. Juries could still decide under a rule – they just have to less facts to decide (i.e., did he get out of the car?)

d. Pokora v Wabash Railwayi. Same facts as Goodman

ii. Judge argues that the Goodman rule makes no sense – it’s over-inclusive1. Applies even when it doesn’t increase safety, to the point of undermining

safety (getting out of the car would be worse)iii. Argues for a standard, not a rule

1. Argues that N rules in general are bad1. Every case should be treated differently – facts matter2. To use a rule is to judge the extraordinary by the ordinary

1. Rules are too general2. By their nature they exclude sets of facts

e. Important to avoid hindsight bias (Hirahara v Tanaka)i. Juries have to look at events objectively, not subjectively

ii. Can’t be swayed by argument, that “obviously I would have done something differently, because the event occurred”

iii. Have to imagine a ‘reasonable’ person in that situation and don’t be clouded by the fact the at the event occurred

5. Rules v StandardsFramework Rule StandardCorrective Justice (Fairness) Formal Equality Substantive EqualityEfficiency (Deterrence) Low application costs Deter strategic behaviorInstitutional Cheaper on the back end

Fewer jury trials Increased power of judges Higher

transparency/accountability

Cheaper on the front end Cheaper promulgation costs Decreased power of judges

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a. Why are rules bad?i. Over-inclusive

1. Capture things that weren’t meant to be captured2. The rule applies, but the rationale doesn’t

ii. Under-inclusive1. Doesn’t capture things that it should2. Rule doesn’t apply, but rationale does

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6. Proof / Res Ipsa Loquitor 1. Plaintiff will usually need to prove:

a. What D didb. How dangerous it wasc. D’s opportunity to discern the dangerd. Availability of safer alternativese. D’s opportunity to know about safer alternatives

2. RULE: Res Ipsa Loquitor (RIL) (thing speaks for itself) is a type of circumstantial evidence and can be invoked when the Prosser test is met:

a. Event is one that ordinarily occurs b/c of N (ordinarily doesn’t occur in the absence of N)i. Combine all N causes and all non-N causes

ii. If prob of N>non-N, then a. is met1. Watson v Lambert [crabbing boat disappears]

1. No RIL2. There are many reasons other than N for a boat to disappear

b. Event is caused by an agency/instrumentality within the exclusive control of Di. Combine control of N causes and control of non-N causes

ii. If prob of N>non-N, then b is met (N was more likely than not to cause the accident)1. Galbraith v Busch [hotel on V-J day – chair out the window]

1. Hotel was not in exclusive control of chairs2. Could not be expected to protect against this event

2. Pfaffenbach v White Plains Express [rowdy kids throw chair]1. Hotel knew there was a rowdy group2. Should have taken reasonable precautions [vicarious liability]

c. Event must not have been due to any voluntary action/contribution on the part of the P

3. RIL is invoked when P has no direct evidence of D’s Na. Byrne v Boadle

i. F: P hit by a barrel of flour while passing D’s warehouseii. H: Accidents alone can create a prima facie case of N

iii. How is this RIL?1. Barrels normally don’t fall out of windows in the absence of N2. Barrel was in exclusive control of D – the warehouse owner is responsible

for all warehouse activities [vicarious liability]3. P didn’t do anything to contribute

4. RIL allows the jury to infer that D was negligent [permissible inference]; is not usually enough to get a directed verdict

a. Exception: when P is able to cross enough potential non-N actions that could’ve caused the event (very high likelihood that accident was b/c of D’s N)

i. Newing v Cheatham [drunk pilot]: evidence was so clear that it was D’s faultb. RIL does not shift the burden to the defendant; it is just one more piece of evidence the jury

can consider

5. RIL is used when there is an asymmetry of evidence between the D (all of it) and the P (none of it)a. In these cases, RIL is used to hold all potential D’s liable in order to incentivize Ds to squeal

on each other (smoke them out)

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6. Ybarra v Spangard: smoke out approacha. F: guys has appendicitis; wakes up with a hurt arm. P sued everyone involved with the

surgery (hospital, diagnosing doctor, surgeon, nurses)i. Had no proof that anyone did anything wrong, but did have proof that

1. He didn’t have this injury before he went to sleep2. The injury was of traumatic origin (i.e., not an infection)

ii. D argued that there was no way to prove that any one of the Ds was responsible, and that since everyone was doing different tasks, no way to prove the instrumentality argument

b. H: The court decided that RIL applied in thisc. R: Held everyone that was involved liable, to try and smoke out the real D

i. Decided that1. Injury wouldn’t have happened without N2. Held everyone who was involved with D to be in control3. P had nothing to do with injury

ii. In cases like this, N has to be found1. Either everyone is N or they rat each other and someone is N (since injury

wouldn’t’ve occurred without N)

7. The more mechanized and safe an industry, the better the case for RIL

8. Conditional RILa. Juries first have to decide that N wasn’t caused by something other than D’s actions,b. If that happens, then they can infer off RIL

9. Justifications for RILa. Compensation for the Db. Corrective justice: unfair for the D to get off simply because the P had no direct evidencec. Negatives: using people as a means to an end (instrumentality)

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V. Causation1. Cause-in-Fact 1. Cause-in-Fact is ordinarily referred to as but-for causation: conduct is a factual case of harm when the

harm would not have occurred absent (“but for”) the conduct (RST §26)

2. Tests to prove but-for causationa. Counterfactual Test (General Rule)

i. Imagine a world where there was no breach – would the injury still have occurred?1. Used to show all the other reasons the injury might have occurred anyway;

shows that the injury could have happed anyway.ii. Grimstad: even if there was a buoy on board, there was a good chance that P would

have diedb. Incremental Risk Test (Modern Alternative)

i. If the N of the D (greatly) increases the chances of an accident, and is of a character naturally leading to its occurrence, then the jury can infer causation (i.e., it creates a permissible inference for the jury)

ii. Majority (Reynolds) Rule: N has to greatly increase the risk1. To win on an issue, P needs to show that its more probable than not (>50%)

that incremental risk led to injury2. In other words, N has to more than double the risk3. Here, it was about unlit stairs. People don’t usually fall down stairs. D’s

actions greatly increased the risk of someone falling down.4. Example

1. w/o N, this happens 10 out 100 times2. w/ N, this happens 21 out of 100 times

iii. Minority (Zuchowicz) Rule: N just to has increase the risk [sympathetic P]1. This rule makes it too easy to prove causation. If an accident occurs, then any

risk (no matter how small) could prove causation.2. This was the PPH drug OD case. Found that the drug increased her chance of

death. Did not discuss whether the drug had to greatly increase the risk.

3. Exceptions to But-For Causation Exceptions to BFC: injury caused by (a) multiple causes or (b) indeterminate causes

a. Injury caused by multiple causesi. Multiple sufficient and simultaneous causes: both N

1. Majority Rule: If multiple acts occur, each of which alone would have been a factual cause of the physical harm at the same time in the absence of the other acts, each act is regarded as a factual cause of the harm (RTT §27)

2. Kingston: 2 fires, both N. 1. Fire 1 was held liable for the whole thing, since they couldn’t find

who started Fire 2. Fire 1 was enough to cause all the damage.3. RTT §27 also holds that joint liability is proper when 2 or more causes act

synergistically so that the combined effect is greater than the sum of the parts. RTT §27 comment a. (see NESS)

ii. Multiple sufficient and simultaneous causes: one N, one not1. Majority: Doesn’t matter if the other act was non-N. you’re liable.2. Minority Rule: If one act is N and one act is non-N (natural), then neither are

considered causes (Cook)iii. Sequential sufficient causes

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1. Hold only the first cause liableiv. Multiple unnecessary but insufficient causes: if there are multiple sequential causes

but each one alone is not sufficient, draw the circle wide enough via NESS1. Majority Rule: NESS Test: When there are two independent tortfeasors

whose individual actions would be unnecessary and insufficient to cause injury, actually cause injury, then if their actions are a Necessary Element of a Sufficient Set to cause injury, they are causes in fact.

2. i.e., draw the circle wide enough to create a set elements that led to the injury3. Example: there is 80 sets of poison in a pond. A and B, independently, each

put in 10. Now there is 100 poison in the pond, killing the fish. Each 10 was necessary, but insufficient to killing on its own. But together, they constitute a necessary element of a sufficient set and can be held liable.

v. Hold Ds joint and severally liable (entirely liable) – P can recover full amount of damages from either of Ds, or some combination thereof. Up to Ds to figure out how to split up damages.

1. Ds are joint tortfeasors2. Independent tortfeasors are responsible for a single, theoretically indivisible

harm3. Independent tortfeasors are responsible for a single, theoretically divisible

but practically indivisible harm1. JC Penney: polyester suit + N gas spill.

b. Injury is caused by indeterminate causesi. Minority Rule: You don’t know what happened, but it’s safe to say that breach

assumes causation (Lone Palm Hotel)1. The N alone is enough to show that there was causation2. Burden is shifted to the defendant to show no causation3. Similar to RIL4. Justification: Courts do not want the D to benefit from wrongful action5. Lone Palm Hotel: the absence of a lifeguard led to death of swimmer

ii. Lost Chance: plaintiffs can recover for damages for a loss of chance of survival1. Proportional Causation (Hersokvitz Majority)

1. Strategy: change causation2. Harm: death3. Causation element: Change from but-for causation to increased risk

of harm (pseudo-Reynolds Rule); relaxing what’s required to prove causation (<50%)

4. Explanation: D’s N led to an increased risk of death5. Reduce award to injuries caused by premature death

2. Concurrence Causation (Herskovitz Concurrence)1. Strategy: change harm from death to loss of chance of survival2. Harm: lost chance of survival3. Causation element: But-for causation4. Explanation: If it weren’t for D’s N, P would have had a higher

chance of survival5. Disadvantages: loss of a chance isn’t really an injury6. Reduce award to the lost percentage of the damages from the

impairment3. Traditional View: cannot recover for loss of chance to survive

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1. Disadvantages – the Recurring Miss problem: no patient with a <50% chance of survival could recover for N

4. Figuring out the probability1. 61/100 people die with this kind of disease, w/o N (Group 1)2. 75/100 people die with the kind of disease, w/ N (Group 2)3. Patient is in either Group 1 or Group 24. There is a 14/75 (19%) chance that he is in Group 2 5. This indicates that lost chance does not need to be >50%. Herskovitz,

it was only 19%.5. Limited to medical malpractice cases

1. Hard numbers regarding chances of survival2. Doctor-patient relationship (trust doctor not to increase the risk)

iii. Alternative Causation: when either A or B is responsible, but not both1. Summers Rule: Burden shifts to the Ds to prove that they didn’t cause injury

if (1) there are 2 Ds that breached their duty in an identical way, (2) one of the 2 Ds caused injury (and not the other), and (3) P cannot prove which of the 2 caused injury. If the Ds are unsuccessful in proving that the other did it, then they are held joint and severally liable.

1. Rule relaxes the burden of proof. Usually, ties go to the D. with this rule, tie goes to the P.

2. Justifications1. Compensation: Same issue as RIL. There is an innocent P who was

injured. To not have this rule would be to block P from compensation, because he has no way to prove which D was liable.

2. Information Asymmetry: Ds have better access to the proof; should not be rewarded for covering it up

3. Arguments Against1. Corrective Justice: This rule is over-inclusive; pushes us to punish

an innocent man4. Two applications

1. Broad: Apply this rule to cases with multiple defendants and similar, but not identical, acts

1. RST §433(b)(3): allows this rule to be used for >2 Ds2. Narrow: Apply this rule only to cases with two defendants and

identical acts

iv. Market-Share Liability: when there are multiple Ds and it is impossible to discover who specifically caused the breach

1. Sindell Rule: If (1) all Ds manufactured 1 product that breach duty in identical way, (2) substantially all of the manufacturers are included as Ds, (3) P cannot prove which D caused injury (through no fault of her own), (4) this injury is almost always caused by this product (signature injury), and (5) the product in question is fungible, then each D is liable for damage in proportion to its market share

2. Sindell: drug companies; 200 producers; sued 5 largest; generic drugs3. Justifications

1. Compensation: Like Summers2. Cost Burden: Ds are in a better position to bear costs (can pass

along costs to consumers) while Ps would be devastated by bearing the cost

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3. Deterrence: Ds are the cheapest cost avoider. And deterrence is limited the Ds actions in the market – perfectly efficient.

4. Fairness: Market share is a good proxy for actual liability1. Dissent: should be 1-for-1 (i.e., compensation from person

who harmed you)4. If your view of torts is about regulating industries, this doctrine works5. If your view of torts is about corrective justice, this doctrine does not work

c. Policy Justificationsi. Corrective Justice: Someone can only be held liable for something they actually

caused; moral responsibility leads to legal liabilityii. Deterrence: We want to deter unjustified risk-taking; cannot deter actions that did not

actually cause harm; we cannot deter all risk-taking

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2. Proximate Cause

1. Purpose & Justification 1. Limits scope of liability: there are an infinite number of but-for causes; proximate cause works to

draw the line somewhere2. Corrective Justice: proximate cause aligns breach with the harm

a. Proximate causes makes sure that the breach we are punishing aligns to the injury that occurred

3. Common formulation: ordinary and natural result

2. Majority Test: Foreseeability 1. The defendant’s negligence is a proximate cause of the plaintiff’s harm if causing that harm was a

foreseeable result of acting as the defendant did (foreseeable type; foreseeable plaintiff; foreseeable manner and extent do not matter)

2. Harm-within-the Risk Test clarifies foreseeabilitya. Is the P’s injury the kind of injury that is normally associated with the risk (breach) the

defendant took? i.e., the risk that makes this act N must lead to the harmb. Did the defendant’s breach increase the risk of this type of injury occurring?c. Berry: tree falls on speeding car; would not have fallen on the car if the car had not been

speeding, because the car would not been there at that moment. D argued contributory N.i. Is a tree falling on a car associated the risk of speeding? No. This is not a foreseeable

result of speeding.ii. Did speeding increase the chances of this risk? No; speeding is unrelated to a tree

falling on a car.d. Central of Georgia: RR didn’t drop off P at the right station (breach). She spent night at

hotel. Kerosene lamp exploded at hotel. She was injured and sued RR.i. Is being burnt by a kerosene lamp associated with failing to drop a passenger off at

the right station? No. This is not foreseeable.ii. Did failing to drop her off at the right station increase the risk that she be burnt? No.

This was just a coincidence.e. Hines: RR didn’t drop off P at her station. Made her walk a mile through a sketchy

neighborhood. She was raped twice.i. Is failing to drop P off at right station associated with sexual violence? Yes. It is

foreseeable that walking a mile through a sketchy neighborhood could lead to sexual violence.

ii. Did the breach increase the risk? Yes. The risk was always present, but D’s conduct exposed her to the risk.

3. Role of Deliberate Intervention by Third Party Actorsa. Majority Rule: Brower / RST: criminals are not intervening causes if they can be

foreseen or if they are the very harm within the risk that makes your conduct N.i. §448. Intentionally Tortious or Criminal Acts done under opportunity

afforded by actor’s N: The act of a third person in committing an intentional tort or crime is an intervening cause unless the actor at the time of his N conduct realized or should have realized (i.e., foreseen) the likelihood that such a situation might be created

ii. §449. Tortious or criminal acts the probability of which makes actor N: If the likelihood that a third person may act in a particular manner is the

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hazard or one of the hazards which makes the actor N, such an act, whether innocent, N, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby

1. i.e., D should be liable precisely b/c the 3rd party did exploit the dangerous condition created by the D

b. Brower: P was hit by a train; his goods were scattered and subsequently stolen; RR did nothing to prevent the theft

i. Majority holds that this harm was within the risk (i.e., was foreseeable)1. Thieves stealing goods is associated with hitting a buggy2. RR increased the chances that this harm would occur by

incapacitating the driver through their breach (he was knocked out)ii. Thievery was a foreseeable result of this breach

c. Bigbee v Pacific Telephone and Telegraph: D was trapped in a phone-booth, hit by drunk driver

i. Phone company could be held N in both its placement and its maintenance of the booth

ii. It is of no consequence that the harm to P came about through N or reckless acts of the drunk driver (449)

d. Britton v Wooten: 3rd party arson burnt down building; fire occurred b/c of N stacked trash

i. Criminal act didn’t relieve originally N party of liabilitye. Bell v. Board of Education: D school board left P behind at a drug awareness fair.

She was raped on her way back. Held school liable. "we cannot say that the intervening acct of rape was unforeseeable as a matter of law'

f. Old Rule: Brower Minority: Intentional torts/crimes are superseding causes. I.e., the one guilty of the original negligence is exempt from damage due to intervening causes.

i. D’s cannot be held liable for the intentional acts of the thieves (free will)

4. Special Rescue Rule: Danger invites rescue. Wagnera. Rescue is always foreseeable when someone else was put in dangerb. Example: Wagner

i. D’s breach: keeping the train door open; guy fell out as a resultii. Guy’s cousin then went to find him; was injured in the process

iii. Majority holds that failure to close the door is a proximate cause of the cousin being injured; the attempted rescue of someone who fell out the door is foreseeable

c. This is for a specific class in specific circumstances, i.e., physicians (they do not break the causal chain)

i. Atherton v Devine: P was injured in car crash caused by D's N; P's ambulance then crash, worsening P's injuries

1. Court held that 1st crash was a substantial factor in causing the subsequent injury, so the harm was not too remote

d. Medical treatment rule: N provision of emergency care is foreseeable; aggravation of injuries is foreseeable

i. Original wrongdoer of N is liable for N of a doctor who treats the injured person where the N treatment results in aggravation of the injuries, so long as the injured person exercises good faith in the choice of his doctor

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5. Foreseeability limits liability when there is an unforeseeable type of harm (injury) or an unforeseeable plaintiff

a. Unforeseeable Types of Harm: No liability for when a foreseeable plaintiff suffers an unforeseeable type of harm, even if that harm is a direct consequence of such negligence

i. Foreseeability matters both for breach and for PC.ii. Majority Rule: Wagon Mound: Liability is limited to reasonably (based on the

RPM standard) foreseeable types of harm that would occur from the breachiii. Wagon Mound No. 1

1. F: D discharged oil into Sydney harbor (breach). Plaintiff was wharf-owner. Piece of flammable debris was floating under the oil, debris caught on fire, catching oil on fire, setting wharf on fire

2. H: No PC; unforeseeable type of harm3. R: It was foreseeable that the oil would foul the dock, but not that it would

catch on fire. Court held that since the fire was unforeseeable, discharging the oil into the harbor was not a proximate cause of the wharf burning down

iv. Wagon Mound No. 21. F: Same facts (different plaintiff)2. R: Judge ruled that the fire was a foreseeable type of harm, and thus the oil

was a proximate causev. Doughty v. Turner Manufacturing

1. F: D knocked asbestos cover into a molten substance. Short time later, cover caused an explosion, hurting P

2. H: Unforeseeable type; no PC3. R: Court held that this was not a type of injury that was foreseeably

connected with the breach. You would expect someone to be hurt with a splash as the cover goes in; not as the result of an explosion

vi. Hughes v. Lord Advocate1. F: Two kids were playing near a construction site. Knocked paraffin lamp

into an open sewer. Explosion occurred.2. H: Foreseeable type; PC3. R: Court held that this was a foreseeable type of injury that would occur

from the breach (knocking a paraffin lamp down). You’d expect a burn to occur; burn from explosion is close enough

vii. Justifications1. Corrective Justice: aligns culpability with ability to prevent injury2. Deterrence: can’t deter people from something they can’t foresee

viii. Minority Rule: Polemis Directness Test: Defendant’s N is a PC of even unforeseeable harm, so long as the harm was a direct consequence of the N

1. Defendants are liable for all damages that are direct consequences of breach2. Foreseeability matters only when considering breach; once you have breach,

foreseeability is immaterial3. Polemis

a. F: D dropped a plank on their ship. It was foreseeable that some damage would occur (denting the ship); not a fire

b. H: PC; it was a direct consequence of his action.c. R: Court ruled that foreseeability didn’t matter; foreseeability

matters only when considering whether or not there was a breach. Once there was a breach, you are liable for all damages that directly spring from that breach

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b. Unforeseeable Plaintiffsi. Cardozo Rule: liability is limited to foreseeable plaintiffs (i.e., those that “are in the

zone of danger” when a breach occurs) [§528.] This is really a duty, but is treated as a proximate cause

1. Cardozo, in Palsgraf, argues that duty is relational: there cannot be a breach of duty without a target of that breach

a. “Proof of negligence, in the air, so to speak, will not do”2. Duty to a plaintiff, then, is breached by risks that are reasonably foreseeable

to that particular plaintiff3. Duty is defined by those in the zone of danger. If you are outside that zone,

harm occurring to you is unforeseeable.4. This analysis is similar to negligence per se analysis: is this plaintiff one that

the statute was meant to protect?5. Cardozo thinks that torts is about corrective justice (righting a wrong)

between 2 people

ii. Andrews Dissent: A breach of duty to anyone is a breach of duty to everyone1. Everyone has a duty to not take unreasonable risks2. Breach of this duty is a breach to the public at large, not one person3. Defendants should be liable for harms that result from a breach, regardless of

whether the plaintiff was foreseeable or not4. Andrews thinks that tort law is a policy tool; we should be aligning

incentives to get the right level of deterrence

iii. Palsgraf Facts1. Passenger was rushing to board a train, employees were helping him board,

dropped a package, package exploded, knocking down a scale that hit the P (who was standing removed the original interaction)

6. Foreseeability does not limit liability for cases where there was an unforeseeable manner of harm or an unforeseeable extent of harm (i.e., on the hook for manner and extent)

a. Unforeseeable Manner of Harmi. Situation: Foreseeable plaintiff suffers a foreseeable type of harm (injury), but in a

peculiar or bizarre mannerii. Rule: the fact that harm occurred in an unforeseeable manner does not bar recovery,

unless the manner is so extraordinary as to be completely unforeseeableiii. Example: Marshall v. Nugent

1. F: D’s driving forced a car in which P was a passenger to run off the road. P was unharmed, but was hit by another car as he was attempting to warn oncoming traffic of the danger ahead

2. H: D was still held liable3. R: As long as the P was injured at roughly the same time and in roughly the

same place, through the same general forces as were foreseeable, manner does matter. The “risks” that the breach began were still “rippling” throughout the area. PC is stopped when the risks settle down and are over, i.e., at the resumption of normalcy

b. Unforeseeable Extent of Harmi. Situation: Foreseeable plaintiff suffers an unforeseeable extent of harm

ii. Polemis Rule: Defendants are liable for all direct consequences of the breach, regardless of whether those damages are foreseeable or not

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1. Theory is that foreseeability is relevant only for breach (i.e., risk calculus); unforeseeability does not matter when considering the extent of harm

2. Once you breach, all damages that result are your fault3. Another example of this is Vosburg4. Defendant “takes his victim as he finds him”

7. Justificationsa. Corrective Justice: it is fair to blame people only for avoidable (foreseeable) risks

i. Matches breach with liabilityii. D is liable because he failed to take a reasonable precaution to avoid a risk

b. Deterrence: impossible to deter people from unforeseeable risks

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2. Minority Test: Directness / Causal Connection 1. Formulations

a. The defendant’s negligence constituted a proximate cause if that negligence caused harm to the plaintiff “directly” (Polemis)

b. The defendant increased the type of a particular harm to the plaintiff (Berry)2. Directness is based on proximity in time and space (the chain of causation); interrupted by:

a. Superseding Causes: third parties or plaintiffs b. Chain of natural coincidences (Ryan, Wagon Mound)c. Resumption of normalcy (Marshall)d. Straightforward coincidence (Berry)

3. Manner of harm can matter in a directness test4. Ryan v. NY Central RR

a. D’s woodshed caught on fire; fire jumped to P’s house and burned it downb. Court held that the fire was a remote, not a proximate, causec. Weather, humidity, ground conditions were all intermediate factors (superseding causes) and

thus interrupted the chain of causationd. Policy reasons for no liability

i. No deterrence value: all fires are the result of Nii. No corrective justice value: we all run the hazards of our neighbor’s conduct

iii. Efficiency/social welfare: we want industryiv. Compensation: victims can get insurance, spread risk

5. Justificationsa. Corrective Justice: Limits liability to the risks that that D is responsible forb. Deterrence: Makes D take even more precautions

6. Disadvantagesa. Makes court make a normative judgment about what defendant ought to have doneb. Lack of fairness – holding people liable for unforeseeable risks

7. Directness is no longer used, but is a factor within the foreseeable and HWR tests

3. Minority Test: Andrews Palsgraf Dissent / Skeptical Hodge-Podge 1. Andrews argues that proximate cause is a flexible tool that should be applied on a case-by-case basis2. Andrews combines directness (lack of superseding causes, close in time and space, lack of

remoteness) with foreseeability to determine proximate causation3. Proximate causation is determined by practical politics

a. Expedient policy decisions + rough common sense4. Look at the proximate cause policy justifications (CJ, deterrence, compensation) to decide the line

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VI. Defenses to Negligence

0. Overview 1. After the plaintiff states his prima facie case, defendant can bring 1 of 3 defenses:

a. That P was contributorily negligent (old regime/ DC and VA) and thus cannot recover at allb. That P was comparatively negligent and thus his damages should be reduced in proportion to

his fault. This itself is divided into two different types:i. Pure Cmp N: P can recover in whatever proportion of his fault

ii. Modified Cmp N: P can recover only if his fault is up to or equal to 50%c. That P assumed the risk (either primarily or secondarily)

i. If P primarily assumed the risk, D did not breach, and P cannot recoverii. If P secondarily assumed the risk, D did breach, but P should recover in proportional

to his fault (like Cmp N)iii. Express waiver

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1. Contributory Negligence

1. P cannot recover for N if P failed to exercise reasonable care for his safety and that failure was a cause of the injury (classic N, just turned around on the P).

2. Justifications:a. Comparative Justice: it is unfair to hold D liable for something he was not the sole cause of

i. D’s N does not excuse P from the RPM standardb. Autonomy: P was acting on his own behalf; D should not be held responsiblec. Compensation: Why should the D have to bear the costs for P’s N? If they are both at fault,

the costs should lie where they fall. There is no inherent culpability in cases of mutual injury.d. Deterrence: We want to incentivize people to take reasonable care: allowing Ps to recover

when they did not take reasonable care is not the right incentives structure. e. Fear of over-inclusion: allowing recovery when P was N

3. Cn N cannot be used as a defense when:a. D had higher level of culpability (i.e., if D’s action was intentional or reckless)b. D was N per se: D cannot use P’s CN as a defense if P is a member of the class of people

protected by the statute and the harm was the one that was supposed to prevented (i.e, the statute was meant to Ps against their own carelessness)

i. Koenig: SOC was set by a statute; thus, there was no breach for the P1. F: D provided workers with faulty ladders. P was injured.2. R: P could not be Cn N since D had a statutory duty to protect the class of

plaintiffs of which P was a member from the exact harm that befell P. Workers didn’t have the option to judge risks (like they did in Gyerman), thus they did not have the power to protect themselves. The statute gave owners the duty of protection.

c. D is SL (if this is what makes it SL in the first place – more like AoR)d. D is PL (if this is what makes it unreasonably dangerous in the first pace – more like AoR)

4. The burden is on the defendant to prove each element of Cn N (duty, breach, causation, damages)a. Duty and damages are almost never an issueb. It will all come down to breach and causation: did P breach the reasonable standard of care

and did this breach cause (both in-fact and proximately) his injury?

5. Cn N will go to the jury; not usually decided on DV

6. Finding breach in Cn N depends on whether or not the P failed to take reasonable care. This often depends on the circumstances: if the parties are (1) strangers or in a relationship and (2) if the harm was to the P or to others.

a. Strangers v. Relationship: SOC is higher when dealing with strangersi. Strangers: Butterfield: P failed to meet the RPM SOC in racing his horse

1. He had no ability to cooperate with the D beforehand; so it was reasonable to take standard precautions, i.e., not speed.

2. Either D was not N in leaving the pole there, in which case rider bears all the blame OR D was N, but P was N as well; given that it is unreasonable to speed

3. P was arguably reckless in speeding. Worse than D.

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ii. Relationship : Beems: P did not fail to exercise reasonable prudence in trusting his co-workers to slow the train down after he asked them

1. Tailored SOC b/c D has different access to knowledge & ability to take carea. The employer is in a better position to lay down the rules, andb. It is reasonable for Beems to rely on the rules (you can’t have

employees second-guessing everything / want cooperation)

b. Harm to Self v. Others: SOC is higher for those who potentially harm othersi. Others: Butterfield: P was risking harm to everyone on the street by speeding

ii. Self: Beems: P was risking only harm to himself by getting back under the train after telling the others to slow down

c. Butterfield: P was racing his horse down the road; D had N left a log in the road; P breached the SOC by speeding; was Cn N

d. Beems: P was killed while working on a train; had asked coworkers to slow the train down; he expected them to; they didn’t; he did not breach the SOC, because it was reasonable for him to rely on his co-workers

7. Once breach is found, D has to prove that P’s breach was a cause of the harm

a. Gyerman: P was not the cause-in-fact of his injuryi. SOC was set by custom: custom was to go to his supervisor if he thought the work

was too dangerous. Use custom as TJ Hooper did, i.e., indicative of SOC1. Justification for custom: parties negotiated (via a union) and allocated the

risk accordinglyii. He breached when he did not go to his supervisor

iii. However, this breach was not a CiF: not enough evidence to prove that if he had gone to the supervisor, this would not have happened

1. But-for test. No evidence of any specific steps D would have taken once P entered the grievance process (would men remove the risk and in what way?)

b. Smithwick: P was not the proximate cause of the injury b/c it was not the right type of harmi. F: D told P to stay away from the east side of the platform, which had no railing. D

was afraid P would slip and fall on the ice. P went to the east side. She was hurt while there when the ice house fell.

ii. R: The ice-house falling was not the harm-within-the-risk of going to the east side in the first place, i.e., this is the not the right type of harm; no PC

c. Mahoney v. Beatman: P was not the proximate cause of the injury b/c extent doesn’t matteri. F: P was speeding; D swerved into his land and clipped P; because of P’s speed, P

couldn’t stop the car before hitting a treeii. R: D was the PC of the harm; responsible for all harm that occurs (i.e., does not

matter that the extent of the harm was unforeseeable)

8. Reciprocal Causation: the SOC of care for D and the SOC for P are often dependent on one another; the obligations of the P are defined by the reasonable precautions we want D to take, and vice versa

a. In these cases, the Coase Theorem tells us that if bargaining is possible and there are low transaction costs, P and D will bargain to efficiently allocate the risk

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b. Tort law should try to mirror that: we should place the burden on the cheapest cost avoiderc. LeRoy:

i. F: P had his flax 75 yards from the RR; RR N emitted sparks; flax caught on fireii. R: Farmer had a right to use his land in any way he sees fit (as long as it doesn’t

harm others); no Cn N.iii. Holmes Dissent: the liability of the RR should be conditioned upon the stacks being

a reasonably safe distance from the RR. In other words, the RR’s duty depends on what we think the farmer’s duty is. We should place the burden on the cheapest cost avoider.

9. A person faced with an emergency who acts w/o time to deliberate may not be charged with CN if he acts as a RPM would act under the same emergency

a. Raimondo v. Harding: P ran into the path of a N speeding car to escape a gang attack

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2. Comparative Negligence

1. The P’s recovery is reduced in proportion to the amount of N attributable to him. Recovery is not completely barred if the P was N, as it is in Cn N.

2. This requires inquiring into each party’s negligence, i.e., fault. We are not comparing causation. P’s N does not make D less negligent; it just lowers his liability.

4. It is not a defense to (1) intentional torts and usually (though sometimes not) (2) negligence per se (dependent on how sure we are this P is a member of the class and this was the harm that was meant to be prevented, and (3) strict liability (how sure we are that this injury is the exact reason we made this SL in the first place),and (4) products liability (depends on how sure we are that this usage is what makes it unreasonably dangerous in the first place)

5. Unlike Cn N, it is a defense to recklessness

6. Justifications:a. Cn N is unfair: it completely bars recovery if the P is the slightest bit Nb. Cn N is not a good deterrent: fails to deter D’s from being N if they know that there’s less of

a chance they’ll have to pay

3. Pure: P’s N is never a complete bar to recovery. Cmp N applies regardless of how N P was. P recovers in proportion to his fault (can recover 100% - 1% under pure).

a. Li v. Yellow Caba. F: P tried to cross 3 lanes of traffic to enter a gas station. D sped through a yellow light.b. H: P’s N is not a complete bar to recovery; liability is borne by those whose N caused it

in direct proportion to their respective faultb. Objections: it is unfair to D liable for something that was mainly P’s fault

3. Modified: P’s N bars recovery when is P’s N is either equal to or greater than D’s N (cannot recover if he is responsible for 50% or more of the damage).

a. Equal to D’s N: P cannot recover if the fault is 50/50b. Greater than D’s N: P cannot recover if his fault is >50% (but can recover if 50/50)c. Objections: this just moves the Cn N bar from 1% to 50%; further, what happens at the

threshold? Potential for arbitrary jury results if they know that recovery is barred after a certain point

4. When there are multiple defendants in a modified jurisdictions, courts compares Ds’ liability holistically, considering the D’s jointly-and-severally liable. In other words, it all depends on the P’s N; not on any individual D’s N. (P – 40%; D1 – 30%; D2 – 30%; P still recovers)

5. Difficult of assigning percentages is not a valid objection to Cmp N. Judges can instruct them carefully. And also, we ask juries to make judgment calls about a lot of things.

6. Another argument against is the classic institutional adequacy argument: should judges be imposing this? Limited to the facts of this case. Should be imposed by the legislature.

7. Last Clear Chance doctrine is subsumed into the comparison of N. Not used in Cmp N past that.

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4. Assumption of the Risk

1. Primary Assumption of the Risk: If P voluntarily chose to participate in an activity knowing the obvious / inherent (i.e., reasonable) risks and the harm that occurred came from such a risk, P will fail to prove his prima facie case against the D.

a. D did not breach his duty of careb. D’s lack of N often depends on (1) the openness of the risk and (2) the voluntariness of

ordinary people’s participation in this activity and sometimes (3) reasonableness of the risks posed by this activity in light of its benefits.

c. This is mixed objective/subjective: the risk has to be one that anyone in this activity would reasonably expect (objective), but P has to know of this risk (subjective)

d. Primary AoR is a failure on the P’s part to meet his prima facie case. P has the burden to prove that D breached; primary AoR means he did not

e. Murphy v. Steeplechasei. P was injured while riding “The Flopper”

ii. Primary assumptions of the risk: sudden jerk, too fast, no railings1. These were the obvious and inherent risks of the ride: this was the whole

point of going on it (nature of the ride) – to be thrown aroundiii. The adequacy of the padding should have been sent to the jury

1. If the padding was known to be weak: this is secondary AoR2. If the padding was unknown to be weak: D has no defense. He assumed no

risk. This was not a foreseeable risk of riding this ride

2. Secondary Assumption of the Risk: If D breached his duty of care (i.e., D was N) and created an unreasonable risk BUT P knew about this risk and voluntarily and unreasonably chose to take this risk, the D can use this as a defense. (Abraham: the conscious taking of an unreasonable risk)

a. This is a defense under either Cn N or Cmp N (under Cn N – full defense; under Cmp N – liability reduced in proportion to fault)

b. Will often depend on the degree of knowledge P is expected to have about taking this riskc. Meistrich v. Casino Arena Attractions

i. F: D made the ice too cold, causing it be more slippery than usual. P knew the ice was too slippery, but chose to skate anyway. She fell.

ii. H: D breached; but P knew of the risk and chose to assume it anyway. Barred.iii. R: P’s knowledge and experience would come into play: did she know the ice was

more slippery based on experience? Did she think she was just sliding around because she was a bad skater? Etc.

d. Maddox v. City of New Yorki. F: Maddox was a pro baseball player. Puddle in the outfield. He saw the puddle and

chose to continue playing. Slipped and injured himselfii. H: D breached; but P secondarily assumed the risk

iii. R: P saw the puddle; the risk was known and foreseeable; he knew that water meant mud and that mud was slippery. He was a professional and the court gives him a high degree of knowledge about the reasonableness of risks.

e. Secondary AoR is not a defense when the P is reasonably responded to a risk (i.e., Eckert – P attempted to rescue the child on the tracks)

3. Express Waiver: The court will generally enforce contracts wherein P contractually agrees in advance to waive his right to bring a tort for negligence against a potential injurer.

a. Waivers will not be enforced when it is (1) an invalid K (i.e., procedurally or substantively unconscionable, fraud, etc.) or (2) against public policy, analyze via the Tunkle factors:

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i. Is the business suitable to public regulation (i.e., hospitals, utilities)ii. Is the party seeking exculpation performing a great service to the public?

iii. Is that party opening this service to the public?iv. Does the party have strong bargaining power (compared to the other)?v. Is the waiver boilerplate?

vi. Is the user placing him under the strict control of the seller?

b. There are no general medical malpractice waivers

c. You can waive for experimental drugs and cases where the party is “not acting as a doctor but as an herbalist”

d. Party cannot waive recklessness or intentional torts (consent is for specific kinds of battery, cannot generally waive your claim)

e. Dalury v S-K-Ii. F: D went skiing. Signed an express waiver for all results of D’s N. Crashed into a

metal pole that form part of the queue.ii. H: This express waiver is against public policy

iii. R: The resort is open to the public: substantial tickets sales results from a general invitation to the public, leads to public interest. D was the one who had control over the land (duty argument); D would be the cheapest cost avoiders: only ones who can foresee and control hazards; burden of personal injuries would be too high if imposed on the public. (control, knowledge, power)

iv. Arguments against (from class): assuming open market, P can just go elsewhere1. Argument against this: consumers lack information, little bargaining power,

transaction costsv. Three ways to deal with this:

1. Categorical ban on waivers of liability for N for ski resorts (done here, but no elsewhere)

2. Waive liability only to the inherent risks of skiing3. Review waivers on a case-by-case basis and analyze through contract law

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Strict LiabilityOverview

1. When an activity is SL (by category), only need to prove (1) this activity is SL by category (2) causation (cause-in-fact and proximate cause), and (3) damages

a. Category: policy analysisb. Causation: PC: harm must be within the risk (i.e., foreseeable; usual type and all that)c. Damages

2. Defenses to SLa. Comparative / Contributory N (AoR); however, this does not apply if this is the exact kind of

harm that made you make it SLb. PF failing for P: i.e., not harm within the risk {proximate cause}c. Policy justifications: no activity level deterrence; cost-shifting doesn’t matter

3. Proximate cause: harm must be within the risk. Harm that occurred must be one that made you make it SL in the first place.

a. Madsen v. East Jordan Irrigation: no SL, harm was not within the riski. F: Blasting; mink on a neighboring farm ate her young

ii. R: It was not foreseeable that the mother would eat her young; this was not a foreseeable risk of blasting. Harm was more controllable by the mink owners; shouldn’t shift the burden to the D.

4. SL is imposed by category by judges. Accordingly, how you frame the activity is very importanta. The more narrowly you frame the activity, the more it depends on the facts, the more it looks

liken, less likely to get SL (transporting gasoline through cities by train)b. More broadly is the preferred way to do it (transporting gasoline)

5. 3 categories: (1) unusual activities, (2) abnormally dangerous activities, (3) respondeat superior

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Policy Rationales1. Corrective Justice

a. N: Based on fault. If you did not do anything wrong, you’re not culpable. We engage in reciprocal risks; give people implied license to do certain things.

b. SL: Liability imposed when a party engages in a non-reciprocal risk that actively causes the other party harm

i. In modern life, we regularly impose mutual risks on one another (i.e., two planes flying are N if they crash).

ii. SL should be imposed when one party imposes unilaterally imposes a risk on another (when a plane crashes into a house).

iii. From a fairness perspective, that one party did not do anything, while the other party actively engaged in an activity. Especially when that party is profiting from the activity, fairness should say that that party should internalize, rather than externalize, its costs.

2. Administrative Costs: generally a washa. N: lower number of cases; more expensive per case (investigation)b. SL: higher number of cases; cheaper per case (efficiency; no jury)

3. Deterrence: activity level effectsa. N: We want to deter parties from taking unreasonable risks and incentivize parties to take

reasonable marginal precautions (spend $400 to avoid $800 in damages); victim bears $200 in damages (since doing anything more is unreasonable)

b. SL: At a high level, deterrence is the same. Parties will not spend unreasonable amounts of money on marginal precautions that are more expensive than the expected harm (will not spend $300 to avoid $200 in damages). Rather, parties will take those precautions that are reasonable, and eat the damages. Imposing SL in these cases would just shift the cost of damages from victim to actor ($400 for 1st precaution + $200 for damages)

i. Deterrence comes into play when we consider the activity level effects (building a windmill for $500 would avoid all damages; <$600)

ii. Impose SL when we want to:1. Incentivize parties to find safer ways of doing something, or2. Not do the activity at all

iii. Even if there is no safer way of doing something, or we want to them to do the activity, you can fall back on the fairness argument: should not have victims bear one of the costs of this activity.

4. Compensationa. N: Victims should be compensated when people act unreasonablyb. SL: Victims should be compensated for accidents that occur even with R care; significant

accidents remain even with reasonable care

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RTT §20: Abnormally Dangerous Activities1. An actor who carries on an abnormally dangerous activity is subject to SL for physical harm resulting

from the activity. An activity is abnormally dangerous if the activity (1) creates a foreseeable risk, (2) creates a highly significant risk of physical harm even when reasonable care is exercised, and (3) it is not of common usage (unusual)

2. Conduct a policy analysis to argue in favor of imposing SL: usually will be (1) lack of reciprocity and (2) activity level effects.

a. CJ: i. Both : lack of reciprocity; victim is not engaging in this risk and the actor is; there’s

an element of causation; unfair for actor to impose his risk unilaterally on the victim. Unfair for actor to externalize costs; should be internalizing them.

b. Admin: i. Unusual activities : under a N regime, there is lack of jury accuracy and low

predictability for what is considered breach. SL should be imposed to increase judicial accuracy and increase predictability.

ii. Dangerous: under a N regime, there is a problem with lost evidence (usually disappears in the accident). SL makes this a cheaper regime. Gas truck in Indiana.

c. Deterrencei. Unusual: under N, litigation is inaccurate and unpredictable (see admin costs); actors

don’t have clear incentives to take precautions. Under a SL regime, they would have clear incentives.

1. Further, they are the cheapest cost avoiders: have the knowledge and control to able to take precautions.

ii. Dangerous: Activity level effects. Impose SL if we want to (1) incentivize actors to find safer ways of doing something or (2) not do this activity at all. Back-up argument if there’s no safer way to do something and we want them to do it: they should be bearing the costs of their activity and not shifting them to the public.

d. Compensation: i. Dangerous : Significant accidents remain even with reasonable care. We want to not

preclude victims from being compensated simply for being unlucky.

e. Other factors to consider: RST §520i. Existence of a high degree of risk

ii. High likelihood of the risk being realizediii. Inability to eliminate the risk via reasonable careiv. Extent to which the activity is not of common usagev. Inappropriateness of the activity to the place where it is carried on

f. Spano v. Perini: Blasting: SL imposed (broad category)i. F: D detonated 194 sticks of dynamite 125 ft away from P’s garage

ii. R: (1) Blasting creates a foreseeable risk, (2) even when all R precautions are taken, (3) it is not too common in NYC. (4) unfair to impose cost on victim. Not telling people how to use their land; only shifting the costs of that use to the actor and not the victim.

g. Indiana Harbor v. American Cyanamid Co.: no SL imposed (narrow category)i. F: P was a railyard; D was a chemical manufacturer. The car that D leased to

transport its chemical leaked in the railyard. P sued for the EPA clean-up fees.

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ii. H: Did not impose SL; characterized the activity very narrowly: transporting this kind of chemical by train through a major metropolitan area

iii. R: (1) this could have been avoided by reasonable care: the chemical was not inherently likely to leak out of the car. (2) This was not an unusual way of doing things: most chemicals get shipped through major cities. Frames activity very narrowly: P had to prove that there was a safer route and that D did not take it (makes it look like N). (3) No fairness argument: does not care that D is imposing a non-reciprocal risk on P: both are companies: “well, so what?”

1. (4) Activity level effects when considering deterrence:a. This D is not the CCA; not the best one to take precautions.b. This is not an activity we want to discouragec. The manufacturer could not have found a safer way of doing this.

3. The RTT groups abnormally dangerous activities and unusual activities, but abnormally dangerous activities can be common and unusual activities can be safe.

a. In cases like this (when you’re arguing for SL and not the other), recognize that the RTT groups them, but then argue the policy rationales individually.

b. Example: Rylands v. Fletcher: uncommon but not abnormally dangerousi. F: D built a reservoir on his land. No N. Reservoir collapsed through undiscovered

mine shafts. Flooded neighbor’s landii. R: (1) Fairness: D acted, while P did nothing; this was a non-reciprocal risk. (2) This

was a ‘non-natural use of the land,’ i.e., uncommon for that place. (3) Was likely to do mischief if it escaped [element of dangerousness]; but not inherently dangerous.

4. Initial American reaction to Rylands: did not like it. Un-American to tell people how to use their land. We want to incentivize industry. Anything you do on your land can be considered ‘non-natural’

a. Brown v. Collins:i. F: P owned a street lamp. D’s horse got spooked. Ran into lamp.

ii. R: Rylands is crazy! Have to have things on your own land, otherwise its pure barbarism! We want to incentivize industry. No SL in US (at least at first)

b. Losee v Buchanan: similar reasoning (boiler explosion)

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Vicarious Liability / Respondeat Superior1. Employers are held strictly liable via vicarious liability / respondeat superior for (1) employees that

are (2) acting within the scope of their employment (i.e., characteristic of the activity).

2. Employees are defined the amount of control exerted by the employer over the individual. If you can dictate the manner in which the work is performed, he is likely an employee.

3. Independent contractors are not subject to VLa. Primary factor in determining IC: whether or not the boss has control (i.e., can dictate the

manner) over the workb. Secondary factors: paid by job rather than hour, lack of uniform, works for more than one

firmc. Exceptions

i. Apparent authority: if it appears to a third party that an employer has authority (control) over an individual, that individual could be considered an employee; found when

1. someone holds out another as representing them2. someone justifiably relies upon the employer to provide services via the

employeeii. Implied authority: found when, in practice, an employer has the ability to effectively

control the manner of doing work (even if name they’re ICs)

d. Petrovich v Share Health Plan: Doctors are considered employees of HMO; HMO VLi. F: Woman sued HMO for her doctor’s N; wanted to hold HMO VL

ii. R: (1) AA: HMO held out the dr as representing them: ‘your HMO physician;’ lists in the HMO handbook. D justifiably relied on the HMO to find her dr: would not have chosen this doctor if he was not in-network. (2) IA: HMO actually controlled the manner of doing work. Capitation system, quality assurance reviews, referral systems, etc.

4. Scope of employment includes activities (1) authorized or (2) expected, consideringa. The time and the placeb. Whether the activity is relevant to employment or of a personal nature

i. US is not VL for the sailor who punches a dry-dock work for cheating on his wifec. The subjective purpose of the activity

5. Employers are held VL for actions taken by employees while on a detour but not on their own frolic; detours judged via the scope of the employment definition.

6. Bushey v. US: scope of employment; US VL for sailorsa. F: Drunk sailor came back from shore leave; twisted valves; dry-dock sankb. R: DC applies rationales, finds that employer is CCA; appeals court argues that this

was within the scope of his employment since this activity was expected/characteristic of this activity. It was at the right time and place (he had to be walking here to come back to the ship). It was relevant to his employment: he would be turning valves during the duty. The purpose wasn’t subjectively malicious.

7. Policy rationales: VL should be applied by asking, how well does this serve the ends of SL?a. CJ: Employers should bear the costs of their enterprise if they are reaping the profits. Unfair

to externalize the costs of employees on others.

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b. Admin: Difficult to prove that particular employee is N; VL reduces information and error costs

c. Deterrence: Employer is the cheapest cost avoider (knowledge and control over who they are hiring); has incentives to hire well, retain control, if we impose VL. Foreseeability: employers can more easily foresee risks when hiring, firing, etc.

d. Compensation: Employees are often judgment-proof because of their lack of wealth. Employers have ‘deep pockets’

8. Employers may still he held liable in N (and not VL) for something like N hiring (hiring a therapist with a record of abusing his patients)

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Products LiabilityOverview1. Establish duty: Was P’s use of the product reasonably foreseeable?

a. Liability is limited to intended use and reasonably foreseeable misuses. Young.2. Prove defect: Is this product unreasonably dangerous?

a. Manufacturing defect – once you prove defect, SL kicks ini. Direct evidence

ii. Circumstantial evidenceb. Design defect – negligence inquiry: M failed to reasonable precautions

i. Consumer expectations testii. Risk-utility test

3. Causation (both actual and proximate)4. Defenses

a. Comparative / Contributory N i. Secondary AoR is a defense if P knew about defect and proceeded unreasonably.

§402A(n)1. Very close to saying there’s no design defect (think buying one bulletproof

vest that doesn’t cover under your arms rather than one that does2. This argument applies to this P – this P proceeded even though he knew

about the defect3. However, ‘open and obvious’ design defects are not dispositive defenses.

Micallef. They are, however, relevant. RRR. Linegar.ii. No Cmp / Cn N for failing to find a defect (can’t say ‘should have known’); even if

you can claim that you should reasonably knowiii. No Cmp / Cn N if this is the very harm within the risk [i.e., this kind of P

carelessness] that makes your product unreasonably dangerous in the first place1. This trumps AoR2. Can’t say that using a loader on a hill is Cmp N when using a loader on a hill

is a reasonably foreseeable misuseb. This was not a reasonably foreseeable use or misusec. This product is not unreasonably dangerous [under design defect]

i. While ‘open and obvious’ is not dispositive, it is a factor. 1. Linegar: the dangerous defect of not closing at the side was not a defect.

This is why he bought it. Open and obvious is material, but not conclusive.

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I. The Law Today1. Any seller of a product in a defective condition unreasonably dangerous to the user is SL for bodily

injury or property damage resulting from the defective condition (RST §402A)a. Defect must make it unreasonably dangerousb. Defect must have existed at the time the product entered the marketc. The product was known / expected to reach consumers without modification

2. Anyone in the supply chain can be sued3. Any foreseeable user or consumer can sue. No privity needed

a. RST is agnostic about bystanders. Most states let bystanders sue.4. Types of damages you can sue for

a. Physical injury to person or propertyb. Parasitic economic harms (lost wages while not being able to work)c. Cannot get pure economic damages, i.e., damages to the product itselfd. Unclear whether you can get emotional damages

i. Can get them if they are parasitic on a physical injuryii. Some states bar recovery

iii. The trend is to follow NIED and the physical harm rules5. Unreasonably dangerous: manufacturing or design

A. Manufacturing Defects1. Manufacturing defects are deviations from the intended design

a. Same requirements as above (unR dangerous, existed at time of entering market, expected to reach consumers without modification)

2. Manufacturing defects are held strictly liable; liable even if it exercised reasonable care in every aspect of the manufacturing process

3. Plaintiffs can prove MDs througha. Direct evidence of defect (comparing this product to others)b. Circumstantial evidence (blends breach and causation) to show that

i. This does not happen in the absence of a defect, andii. Other alternatives did not cause this accident (rule out other causes)

1. CE allows the jury to infer negligence. Must be left to the jury, like RIL4. Speller v. Sears Roebuck

a. F: House burned down. P blames faulty wiring in the refrigerator.b. H: P introduced enough evidence to survive SJ; doesn’t matter that it was CE.c. R: P’s evidence (1) showed that this does not happen in the absence of a defect. (2) She also

ruled out other causes (via testimony from firefighters that it wasn’t the stove). 5. Justifications

a. Evidentiary problems: defects are probably the result of hard-to-pinpoint Nb. CCA/Deterrence: manufacturer is in the best position to research or discover other methods

of reducing risk or harmc. Loss-spreading: manufacturer can get insurance or pass the costs along to consumers

6. Potential defense of contributory/comparative Na. AoR – knew about the defect but proceeded unreasonablyb. Cmp N/ Cnt N not allowed when this defect is exactly what makes it unreasonably dangerousc. Defect did not exist at the time it entered the market; however, the defect did not have to exist

(really), just the fact that it would manifest itself if used foreseeablyd. The product was modified after it entered the market

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B. Design Defects1. Design defects are not held strictly liable; it is more of a negligence inquiry2. Duty: manufacturers have a duty to take reasonable precautions in design for intended uses and

reasonably foreseeable misusesa. Volkswagen v. Young

i. F: P was rear-ended while sitting at a red light. His seat came off the tracks and slammed him into the back of the car. He was killed.

ii. H: Liable for defects in design that makes accidents more dangerousiii. R: Car accidents are reasonably foreseeable. Duty to make cars reasonably safe in

accidents. It was reasonably foreseeable that this defect would have led to more injuries during an accident.

3. Cannot raise Cmp / Cn N for design defects, when the injury that occurs is the very harm within the risk for holding you PL in the first place

4. What makes a design unreasonably dangerous?a. Consumer Expectations Test: if the design is not as safe as consumers expect it to be

i. Look at what other consumer use it for; target consumer expectations; marketing and advertising; what other products do

ii. Criticisms1. No empirical data on consumer expectations2. Consumers don’t know alternatives; don’t have usual expectations3. This turns into a N test without any rigor

b. Risk Utility Test: if the risks posed by the design outweigh its utility (benefit)i. Wade Factors

1. The usefulness and desirability of the product (utility to consumer and to the public as a whole)

2. Safety aspects of the product – likelihood that it will cause injury and the probable seriousness of the injury (Hand)

3. Availability of a substitute product which would meet the same need and not be as unsafe

4. Manufacturer’s ability to eliminate the unsafe character of the product without impairing its utility

5. User’s ability to avoid danger by exercise of reasonable care [open & obvious]

6. Anticipated awareness of inherent dangers in the product and their availability

7. Feasibility of risk-spreading by passing along the costs or buying insuranceii. Criticisms

1. Includes an element of hindsight; allows newer versions on the market to be considered

2. Very indeterminate; weighing 7 factors; no hard and fast rule3. Difficult to weight one facet of the design v the product as a whole

c. Difficulties with design defect tests in generali. Asking the jury to engage in a task for which they do not have expertise

1. Needs expert testimony2. Jury is being asked to choose the best design, or redesign the product

ii. Any complex product is a combo of many design choices regarding safety, cost, attractiveness, and functionality: an entire product itself does not cause injury

1. Very difficult to isolate one part of the product from the whole thing

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d. Burden does not generally shift to the D (except in CA)i. P has the burden to show the design was defective (kind of unfair; evidentiary issues)

e. Half of the state requires P to show there was an alternative safer design (for either test)i. Reasoning: best way to show N is through an untaken precaution

f. Barker v. Lulli. F: P was in high-lift loader, operating on a slope. Started to tip. He jumped. P argued

that it should have a seat belt, should’ve had outriggers, should have had an automatic locking device, should have had a separate park gear

ii. R: Fails the consumer-expec test. Fails the risk-utility test. D argued for (1) custom and (2) that new designs would make it more unsafe.

5. Plaintiff argumentsa. Competitors used a safety device that this D did notb. There was a cheap precaution

6. Defendant argumentsa. This is not a design defect – this is exactly why you bought it in the first place (bulletproof

vest)b. You assumed the risk – you knew about the defect but proceeded unreasonablyc. Open and obvious is relevant to the issue of defectiveness, but does not preclude a P from

establishing that a reasonable alternative design should have been adopted that would have prevented injury. RTT. Micallef. Linegar (bulletproof vest)

d. Cmp/Cn N, as long as this misuse is not exactly what makes this unreasonably dangerous (Barker)

e. Cost, function, and competition that would narrow design choicesf. The requested designs would actually decrease safetyg. Product would be unworkable if the safety feature is includedh. Product would be priced out of the market if safety feature is included

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II. Evolution1. Contract Privity

1. No products liability in the absence of contract privity. If you were not in a contract with someone, you could not sue. You can only sue for products liability if you were a party to the contract.

2. Manufacturers have no duty to those they do not have contracts with3. Exceptions

a. Inherently dangerous and negligently produced items (defective gun)b. Fraud: product had latent defect that manufacturer knew about

4. Justificationsa. Limits liability (Palsgraf, economic damages, etc.)b. Increased predictability when entering into contractsc. “Caveat emptoer” – let the buyer bewared. Tort law is about private actions between private people; no general duty

5. Winterbottom v. Wrighta. F: P was a mailman. D was the coach supplier. The coach broke down and injured the P. b. H: No privity between mailman and supplier; no PLc. R: It was the P’s employer who had had the contract with the D. P cannot sue if he is not

party to the K

2. A. Negligence

1. Manufacturer of anything that could foreseeably harm a third party if negligently made is subject to liability, with or without privity (exception to privity rule swallowed the rule). Two requirements:

a. Product must be dangerous (harm to others or harm to self) when negligently made, andb. Manufacturer has to know that it will be used by other people

2. This imposes a duty of reasonable care on manufactures/sellersa. Care fluctuates according to the product (risk calculus)

3. Justifications: Consumer protection

4. Since this is a negligence standard, consumer still had to prove breach. Res ipsa loquitor was often used to do so.

a. Loosens the ‘exclusive control’ requirement for PL (since stream of commerce)b. But RIL is difficult to use the product increases in complexity: maybe this is not the type of

thing that would not happen in the absence of N; maybe this would happen regardless of N (1 in 100,000 products are defective)

5. MacPherson v. Buicka. F: D is a car manufacturer. P was injured when the wooden spoke on his wheel shattered. D

didn’t make the wheel, but did inspect the whole car before selling it to the retailer. P and D had no privity.

b. H: Manufacturers are liable for anything that could foreseeably harm a third party if negligently made.

c. R: Does not need privity. Expanded the inherently dangerous categoryi. Winchester: poison is inherently dangerous; mislabeled; P could recover even though

no privity

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ii. Loop: wheel in saw; last for five years; buyer knew about the defect when purchasing; no recovery (secondary AoR)

iii. Losee: steam boiler explosion. No recovery since intervening cause: sold it knowing there were going to be further tests

iv. Devlin: scaffold is inherently dangerous; knew that if it was improperly constructed it could cause injury; the very way it was supposed to be used made it dangerous.

v. Statler: coffee urn explosion. Urn was inherently dangerous in the way it was built and meant to be used.

6. Escola v. Coca-Cola: RIL. a. F: P was stocking Coke bottles. One exploded in her hand.b. H: Negligence via RILc. R: RIL. Bottles aren’t supposed to explode in the absence of N (supposedly). Exclusive

control requirement is loosened for PL. More likely than not that this exploded from N.d. Traynor Dissent: for SL. See below.

2. B. Contract Warranty1. Warranties are promises/guarantees of quality. Can be express or implied2. When a warranty is breached, the breach may give rise to a cause of action for both contract losses

and for consequential losses (such as bodily injury or property damage)7. Express Warranties - Privity

a. Express guarantee for the breach of liability which might ensuei. Could be formal part of a K or party of an advertising campaign

8. Implied Warranties - Privitya. Uniform Sales Act of 1906 created a default implied warranty in the sale of goodsb. If goods were not of fair average quality, the seller was liable for bodily injuries resulting

from the breach of the warranty regardless of negligence. This is a SL rule.c. Buyer could recover in circumstances in which the reasonable assumption of a buyer would

be that he was purchasing met minimal standards of quality and safetyd. Implied warranties could be disclaimed

9. No Privity for Fooda. Manufacturer of food could be directly liable to the consumer for bodily injuries resulting

from the consumption of impure foodb. Theory: breach of implied warrantyc. No contract needed; legal fiction of ‘jumping warranty’d. Still disclaimable

3. A. Strict Liability (Tort Side)1. Manufacturer of consumer goods is strictly liable in torts for product defects2. Manufacturer must (1) put the product in the market and (2) know that it will be used without

inspection, and (3) the product must turn out to have a defect3. Justifications: Escola v. Coca-Cola Concurrence

a. CCA: Manufacturer is better situated to determine whether to make the products saferb. Loss spreading: Manufacturer is better able to insure against the risk of injuries caused by

the product. Can also pass the costs alone to consumerc. Evidentiary difficulty: consumer will have a hard time proving N in the absence of SL

4. Yuba Power5. RST §402A

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4. A. Strict Liability (Contract Side)1. Manufacturer of an ordinary product cannot disclaim implied warranty + no privity required to

recover2. Henningsen v. Bloomfield Motors

a. F: P bought car. Steering wheel failed while P’s wife was driving.b. R: Implied warranty ran from the manufacturer, not just the immediate seller. No privity

needed. Manufacturer’s implied warranty could never be disclaimed in connection with bodily injury, no matter how clear and conspicuous the disclaimer

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DamagesOverview

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I. Compensatory1. Compensatory damages include both (1) pecuniary and (2) pain and suffering damages

a. Pecuniary: medical expenses, lost earnings, lost wages (things with an exact $ amount)b. Pain & Suffering:

i. Physical pain and suffering the person experiencesii. Loss of enjoyment of life

iii. Daily inconvenience of the injuryiv. Emotional trauma

2. Theoretical justifications for compensation as a wholea. Corrective Justice: damages are meant to make the P ‘whole’/where they were before the

injuryb. Deterrence: Deter defendants’ actions (either specifically or generally) by threatening them

with liabilityc. Recognition: Recognizing the social and individual significance of the P’s loss and

confirming the weight of the D’s responsibility for that loss

3. Justifications for pain & suffering awardsa. CJ argument cannot apply: $ awards for P&S cannot make the P whole. BUT, the $ can be

used as a substitute for a new hobby (or something)b. Deterrence: P&S are real harms; needs to be taken into account for optimal deterrencec. Recognition/Expressive: Recognition that P’s rights were violated

4. Arguments against awarding P&Sa. Commensurability: (CJ) $ cannot make the P whole; $ cannot restore you; $ and P&S are on

completely different scaleb. People adapt to their injuries. We may be over-compensating by granting emotional damages

5. Loss of enjoyment of life damages are limited to cases where the P actually experiences the loss of enjoyment of life. McDougald. There is no CJ/compensation justification for when the P doesn’t actively realize that his life quality has decreased.

6. Pain & suffering awards are all lumped together. No separate awards for loss-of-enjoyment of life. McDougald.

a. Reason: too difficult to separate; fear of double recovery (since they’re very similar and similar things are taken into account)

b. Negative: undermines judicial review of awards (not sure what was awarded for what)

7. McDougald v. Garbera. F: Botched C-section. Woman in a coma. Absolutely unresponsive to stimuli.b. H: P&S grouped. No loss of enjoyment of life.c. R: See reasons above.

8. Limits on P&Sa. State legislatures (half) have imposed caps (~$250K) on P&S in MM cases

i. VA limits all compensatory damages in MMb. Alternatively, academia argues for a graduated system (based on a matrix)

i. But this has no political traction (people don’t want to put a price on life)c. Appellate review: awards are reviewed on an abuse of discretion standard (could a rational

fact finder reasonably award this level of damages?)

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i. Majority rule : do not look to similar awards; look only to the facts of this caseii. Minority : judges can (sometimes have to) look to other awards

d. Duncan v. KCSRi. F: Train hit van. One sister killed. One sister becomes a quadriplegic. Train and van

jointly liable. Awarded $8M in P&S.ii. H: Reduces P&S award to $6M

iii. R: Judge goes over the facts (she’s 11; utterly paralyzed; can’t play soccer; used to be active; can’t go to school; physical pain; emotional trauma from losing sister). But them, inexplicably, says that the largest award in a case like this was $6M. So they go with $6M.

e. Justifications for capping damagesi. Fear of over-compensation

ii. Fear of over-deterrence 1. i.e., will bankrupt the company and preclude recovery for others; or take

away this valuable serviceiii. Increased consistency and certaintyiv. Judicial review – increased consistency. Since most judges are alike.

f. Negatives to capping damagesi. Bright-line rule – will be under-compensatory to the worst injuries

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II. Punitive1. Punitive damages are awarded for (1) intentional or (2) reckless actions. Rarely reward for N

a. Reckless: D was aware of the risk (had knowledge that his behavior was highly likely to cause harm) but does it anyway

2. Pinto casea. Ford did a risk calculus and found that not installing a bladder in the car and paying for the

resulting accidents was cheaper than installing the bladderb. Court found this to be reckless (had knowledge but proceeded anyway)c. Awarded punitive damages

3. Rationales (from Kemezy v. Peters)a. Compensatory damages do not always compensate fullyb. Punitive damages make sure that actions are not underdeterred

i. General deterrence: increase the cost to compensate for the lower chance of discovery [recurring miss]

ii. Specific deterrence: increase the cost if the action was highly risky but no one was actually injured

c. Makes sure that people channel transactions through the market when the costs of voluntary transactions are low and not force people into exchanges by way of doing it and then being sued

d. Express the community’s abhorrence [retributivist]e. Relieves pressure on criminal justice system

i. Incentivizes private individuals to bring claims on their ownii. Allows for a judicial remedy for relatively minor outrages that would not be picked

up by the CJ system

4. Juries often consider the D’ wealth, but are not told why they should consider it. But, P does not have to present evidence on the D’s wealth (Kemezy)

a. The argument against this is diminishing marginal utility: punitive damages should increase with wealth to get full deterrence

b. But this doesn’t matter for the justice/fairness argumentc. Facts of Kemezy: security guard (cop at his second job) beat up the P

5. Constitutional limits on punitive awards based on (1) reprehensibility of the conduct, (2) ratio between punitive award and actual damages, and (3) corresponding criminal fines. State Farm v. Campbell.

a. F: Campbell got into an accident. It was clearly his fault, even SF investigators said so. There was an offer to settle for the full amount. SF told C not to take it, that he would definitely win at trial. Further, that his private assets would be protected

i. Verdict came back against C. 4x the amount of the policy. SF told C to sell his house.ii. C sued SF for a fraud claim.

iii. Utah courts found a national pattern of doing this. Upheld $145M punitive award.b. H: SC says this punitive award is too high.c. R

i. 1. Degree of reprehensibility, consider whether1. The harm caused was physical or economic2. The act evinced reckless disregard for the safety of others3. The target of the attack had financial vulnerabilities4. The harm was the result of intentional acts of malice.

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5. BUT, while courts consider the national pattern when figuring out how reprehensible the actions were, the award cannot be based on the national pattern

a. Failure of jurisdiction: Utah does not have J over SF in not-Utahb. Rights violation: SF would be punished for unproven things, that

might not even be against the law in other states6. Can only punish SF for the harm caused to this P. Not for national conduct.

There must be a nexus between this case and the national pattern though.ii. Ratio: limited to single digit multiplier (highest is 9x). This award is 145x

iii. Fines: rarely used. Not really important

6. Half of the states have imposed caps on punitive damages

7. Half of the states increase the burden to ‘clear and convincing’ for punitive awards

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III. Emotional Damages1. When there is pain and suffering damages from a physical harm (parasitic)

a. Physical pain and suffering the person experiencesb. Loss of enjoyment of lifec. Daily inconvenience of the injuryd. Emotional traumae. P&S and LoL usually collapsed togetherf. You need cognitive awareness to recover damages P&S

2. Intentional infliction of emotional distress3. Negligent infliction of emotional distress

a. Dillon Rule: witness contemporaneously + close family member b. Zone of danger rule

4. Assault

IIII. Economic Damages1. When there are economic damages as a result of physical harm2. Usually, need a physical harm; exceptions

a. Intentional infliction of economic damage (fraud, frustrating a K)b. Identifiable injury + identifiable class. People’s Express

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