Torts Outline Professor Turley

I. I. S SCHOOLS CHOOLS OF OF T THOUGHT HOUGHT

A. Formalism
1. Code system, consisting of canons, case-made, judge-made rules
2. Rules are outcome determinative; goal- prevent bias/ subjectivity of judges
3. Fierce notion of judicial neutrality/deference; court should not engage in determining
hat la should be rather than hat it is; leave lama!ing to legislative branch
B. "egal Realism- replaced Formalism in the #orts Revolution
1. Rejection of formalism; acceptance of the indeterminacy of the la
2. Karl Llewellyn found judges selected canons and pre-determined outcome $hidden bias%;
false neutrality
a& 'egan policy goal of creating a stable rule; consider broader implications
b& consider hat reasonable person ould have done and the goal of achievement
C. (ormative
1. )oal- determine hat is norm of society, hat is morally right/rong in society, usually
decided by jury
D. Hobbes- "eviathan guarantees recourse/ remedy; corrective justice- la must ma!e rongs
right vs& efficiency of C"* $producing most efficient manner of achieving ealth
ma+imi,ation rather than righting of rongs%
E. "oc!ean
1. Labor Theory- .n beginning, all as held in common& #hen evolved into private
property $mi+ing of seat/labor / conversion of common property into private property%
2. )vmt does not create priv& property- )od created private property; gvmt may not
redistribute ealth
3. Lockes Proiso- 0ne must leave as good and enough for others $used by Rals to
justify redistribution if e+treme concentration of ealth occurs b/c it is defeating )od1s
plan of alloing man to produce through enterprise%
F. 2tilitarianism
1. gvmt must protect individuals, not just mar!et
2. !entha"- #oal of #"t- achieve the greatest good for greatest number; invest in social
action tremendous productivity $industrial revolution%; #"t $ en#ineer of society
G. Feminism
1. 3atherine %acKinnon- la ritten by middle-aged hite men- inherent patriarcha bias
2. !urispathic v. "urisgenerative
a& &uris'athic- basis of la is combative, male model; layer is !night; ,ero sum game-
only one person ins/ gains
b& 'etter &uris#eneratie( judges evaluate merit on both sides and shape an e4uitable
decision
3. 'ender- should have duty to perform lo-cost rescues; 5osner agrees, but from an
efficiency standpoint
#. Critical "egal *tudies
1. Goal- "udges shoud active$ %or& to brea& do%n cass barriers; help marginali,ed
2. *ometimes favored judicial activism, courts should be more socially active
3. )uncan Kenne*y( peeled onion of 'lac!stone1s Commentaries
a& Favored de-construction of 6legal terms1
b& 7ealth re-distribution is important $+awls%
1
I. C"* counted by 8udicial Restraint
1. Goal- deference to the legislature; judges are not elected and are counter-majoritarian
2. %a*isonian Syste"-
a& #ri-part gvmt provides chec!s balances
b& Factions political pressure majority rule $elimination of factions%
c& .f left to judges- no faction pressure relief, too much control given to individual
3. Hart an* Sachs- the system or!s best hen courts leave it to legislature to fill gaps/
ambiguous legislation; Courts must stay in line /the 9adisonian system
!. !ut see( Public Choice %oe"ent
a& :art and *achs vie is rong; gvmt often favors minorit$ opinions rather than majority
principles; deals/gaps / Congress ma!ing decisions to detriment of public
b& %ancur Olson
i. disagrees ith 9adison1s vie- collective action- sma groups are actua$ more
po%erfu than big groups b/c small groups have concentrated interest
ii. vs& majority groups, that have dispersed interests and more free riders
c& ,asterbrook
i. Deaism- gaps in legislation are bought and sold li!e a mar!et
ii. Court must apply las e+actly as ritten; do (0# gap fill- limited judicial role
d& &onathan %acey- agreed /public choice criticism, but not the result
i. ;0 gap fill; ta!e Congress at its ord and enforce the public-regarding purpose
of legislation; Congress can fi+ it if rong
ii. 9adisonian democracy or!s best hen open and deliberative process; this is
achieved by filling gaps to public regarding purpose, forcing Congress to amend out
in open to continue deal-ma!ing
'. He#el
1. Personality theory of 'ro'erty- the sub"ective vaue of an ob"ect to an individua is not
recogni(ed b$ the a%) disconnect
2. the only ay to understand property is to understand its relationship to the person
*. "a and <conomics *chool
1. Goal- efficiency, not morality
2. Posner
a& morait$ is bad basis for a% b+c of sub"ectivit$; it1s indeterminate; focus on economic
efficiency instead, hich is more tangible and ill improve the living conditions
b& (egligence is the most effective system; strict liability forces cost-internali,ation,
leaving it to the mar!et to dispose of inefficient activities
3. = most common definitions of ,FF-C-,.C/-
a& Pareto ,fficiency
i. )oal- get a pareto superior resut- produces at least one inner and doesn1t ma!e
anyone orse off- ma!ing things more efficient
ii. 5areto optimality- point of optimal efficiency; point before first loser is produced
b& Ka*or(Hicks ,fficiency
i. )oal- ealth ma+imi,ation; producing losers doesn1t matter as long as there is a net
gain; no need to compensate losers
,. <+ternalities
a& Rational actors try to e+ternali,e their cost to others $i&e& e+ternali,ing pollution%
2
b& Har*ins Tra#e*y of the co""ons- ealth ma+imi,ing farmers ill continue to add
cos to shared land /finite amt& of grass even if doing so ill cause the land to stop
producing food; result- everyone starves
i. *olution> .ntroduce private property creates incentive to !eep resource healthy
-. Pi#ou
a& on$ egisate %hen the mar&et fais b$ ao%ing something contrar$ to the ong)term
needs of societ$
b& <+amples- stimulus pac!age; force a discriminatory firm off mar!et /legislation
.. Coase Theoru"
a& Coase .- in a perfect mar&et, the mar!et determines the outcome of conflicts bt to
uses ? more valuable resource will ultimately prevail $farmer/ rancher e+&%
i. redistribution/regulation not necessary- mar!et ill handle it
b& Coase ..- there is no perfect mar!et; must include transactional costs $cost of reaching
an accord bt parties%, hich can cause the outcome to flip- less valuable activity can
continue b/c of the high transaction cost of stopping the activity; feer people affected
/ higher transactional costs $#urleyor!s e+&%
II. II. - -.T,.T-O.0L .T,.T-O.0L H H0+% 0+%
A. 'ac!ground
1. .ntent
a& Rest& @ A- Conduct is intentional if the actor-
i. desires the result/conse4uence $purpose intent%; /0
ii. !nos or believes the result is substantially certain to occur $!noledge intent%
little boy !ne old lady ould be hurt hen he pulled chair out in Garret v. Da$
Children may be held liable of intent
b& intent inferred from conduct, not motive
c& #ransferred intent- B hits C hen intending to hit '; C claims transferred intent; Ast
you must establish original intent
2. #raditional defense- consent
3. 'asic #ypes
a& Physical Har"1 Tres'ass to 'erson2 lan*2 an* chattels
i. Tress'ass to 'erson
Vosburg v. Putney
o Rule Ciolation- 5utney !ic!s D in shin, lost use of leg
o held responsible, even for unforeseen damages
o +ule- For intent, it is sufficient to sho rule violation, the natural cause of
hich is injury
ii. Tres'ass to Lan*- intent to enter someone else1s land, even if by reasonably
mista!e $i&e& because unaare it1s someone else1s property%
iii. Tres'ass to Chattels- intentional dispossession of a thing; loss in valuable int1st
trespass to chattel $stolen but returnable% vs& conversion $destroyed, unreturnable%
Rst& @ =AE, AF- "iable for direct/ indirect phys& contact causing impairment- of
condition, 4uality, value&
o .ntangible property- Intel v. Hamidi- trespass to chattels claim fails- emails
did not damage the computer system
b& Physical Har"1 Conersion
3
i. Rst& @ ===- intentional e+ercise of control over chattel, hich seriously interferes
/D1s right to control
ii. Moore v. Regents of Univ. Cal&- organ removed from body, used for science $G%&
2sually put in trash so (0 conversion&
+UL,- custom of chattel disposal effects determination of conversion
5ossible ;efenses-
o slippery slope
o slippery slope- if you say removal of tissue is conversion, huge H of issues
o bright light argument- say this is not priv& property or slippery slope
o floodgates- if tissue is priv& property, thousands of patients hose tissue as
used in research
c& Physical Har"1 ),F,.S,S to -ntentional Torts
i. C C0(*<(*2B" 0(*<(*2B" ; ;<F<(*<* <F<(*<* - consent vitiates intent
Rst& @ EF=- consent hen one is illing for conduct to occur
o (eed- D1s subjective state of mind consent
o ;on1t (eed- communication to I
o Bpparent consent- D1s %ords or conduct is enough $i&e& implied consent in
the OBrien case- stic! out arm, stand in line, receive unanted vaccination%
o Mohr v. illiams- ;r& diagnoses left ear, hile D sedated, operates on other
ear civil assault and battery
+ule - .ee* consent
-ssue- 5atient1s aareness of consent, and to hat
,"er#ency +ule- ;r&s are not re4uired to get consent if a person is serious$
in"ured $i&e& unconscious or severe pain% and time is of the essence
5roper, informed consent is re4uired
o Canterbury v. !"en#e- D has bac! surgery, left unattended, not instruct to
stay still, falls off bed
-ssue- ;uty to disclose ris!s in ac4uisition of consent>
+ule1 3-nfor"e* consent4 is re5uire*
+ule1 /ou cant consent to so"ethin# ille#al
o Hudson v. Craft- D, minor, goes to carnival, injured in bo+ing match
-ssue- ;id consent to illegal activity negate I1s responsibility>
+ule- .f you are part of a protected class $i&e& minor%, court may ignore
consent&
+ule- 5ublic policy can re4uire consent- duty to disclose&
o .&e& .f you have an *#;, you have a duty to disclose $or be held liable%& .f
you do disclose, even if transmission occurs, no liability&
ii. . .(*B(.#J (*B(.#J - .nsane/estate usually held liable
M#$uire v. %lmy- D, nurse careta!er, insane I hit nurse on head /table leg
o +ule1 -nsane hel* liable for their intentional torts6
o Court uses cheapest cost avoider to determine family is CCB& #urley-
nurse/hospital CCB b/c they can get insurance, and nurse !nos the danger&
iii. * *<"F <"F-; -;<F<(*< <F<(*<
+ST 7 89- +ule1 %ay only use reasonable force a#ainst i""inent har"&
+ule1 %ay only use co""ensurate force6
4
o 9ay not escalate the encounter by increasing the violence&
+ule - Jou do not have to retreat&
o 'ut may not retaliate once danger is passed& 'attered omen syndrome not
accepted- vieed as retaliation&
+ule1 %istaken self(*efense "ust be reasonable&
o Courvoisier v. Raymond- I fending off intruders, confuses cop /intruder
and shoots
+ule- Reasonable, mista!en belief of self defense is reasonable&
Krd party privilege to defend others under same conditions and by same means as
one may defend self&
iv. ; ;<F<(*< <F<(*< 0F 0F 5 5R05<R#J R05<R#J
R*# @ LL- +ule1 %ay use reasonable force: %0/ .OT use force calculate* to
cause serious bodily injury or death in *efense of 'ro'erty6 #uman ife more
sacred than propert$. 1a$ use moitor manus) a$ing gente hands.
Curtilage- the area around a home that is protected
+ule1 %ay .OT hae lethal *eices that cannot *istin#uish btw frien*; foe6
o Bird v. Holbroo&- alled garden /spring gun !ills !id
o +ule- :uman life orth more than property; lethal traps illegal&
+ule- (otice is necessary to prevent liability for use of non-lethal devices that
can cause injury that are not patent $i&e& electric fence, hidden barbed ire%&
5atent $visible% barbed-ire is a arning itself&
Controversia- Castle ;octrine/ 9a!e 9y ;ay- henever someone intrudes your
domicile, you may use the full range of self-protection $i&e& lethal force o!%
v. R R<CB5#2R< <CB5#2R< 0F 0F C C:B##<"* :B##<"*
R*# @ AMM- "imited self-help privilege- reasonable force re4uirement, recapture
must begin promptly
'irby v. (oster- D has gained rightful possession of G, I fights for it bac!
o +ule- Reasonable force may be used 0("J hen dispossession as
unlaful
vi. ( (<C<**.#J <C<**.#J
Bn otherise trespass/conversion on D alloed in preservation of life or
property&
Ploof v. Putnam- D, family sailing in storm, moor to I1s doc!, doc!1s oner
unmoors boat
o +ule1 There is a *uty to allow acts of necessity in or*er to 'resere
hu"an life6
Vin#ent v. )a&e *rie +rans"ortation Co&- I re-ties failed ropes of boat to
doc! during storm, doc! damaged by boat
o +ule- 5rivilege of private necessity does not negate *uty to 'ay for
*a"a#es&
o Turley- Reverse arg&- doc! oner may be CCB $insurance, internali,e
costs%& Bbility to sue for lost opportunity costs unclear&
Public necessity- champion of the common good; if acting for public good,
may destroy public property and not be held liable
5
o )vmt may alays use this argument, but gvmt has aived much of its
immunity
i&e& 2&*& gvmt compensates ar-time victims
o 9ost states have restricted it to !eep ppl from claiming it
d& ,"otional;)i#nitary Har"1 0ssault
i. R*# @ =A- 0ssault( intent to cause reasonable a''rehension of i""inent
battery
(eed- .ntention N Bct
ii. I must have intent to cause offensive contact or imminent apprehension $23s
a%areness of threat%
iii. +ule1 %ere wor*s are not enou#h to constitute assault
e& ,"otional;)i#nitary Har"1 OFF,.S-<, !0TT,+/
i. R*# @ AE- !attery1 -ntent to cause offensie contact = offensie contact
ii. .f no intention, then only negligent, rec!less act, (0# offensive battery&
f& ,"otional;)i#nitary Har"1 False -"'rison"ent
i. False .mprisonment- I intends to confine D /in boundaries fi+ed by I, and D is
conscious of the confinement or harmed by it
.ntent is all that1s necessary; mista!e is not a defense&
False arrest / false imprisonment
Future threats do not e4ual false imprisonment
ii. Bird v. ,ones- D disalloed to continue don bloc!ed highay
+ule1 ,ffectie confine"ent re5uire* for false i"'rison"ent6
iii. 5ossible *cenarios-
Bcts of negligence $i&e& stuc! on elevator/plane% do not e4ual false imprisonment&
Confined in a room, but no restraint> (ot false imprisonment
Confined in a room, but a high indo gives escape> False imprisonment
iv. Coblyn v. 'ennedys- old man trapped in store after suspected shoplifting
+ule- *hort-term 6imprisonment1 against shoplifters o! if reasonable $e4uivalent
to citi,en1s arrest%& Ti"e;'lace;"anner is critical to reasonableness&
g& ,"otional;)i#nitary Har"1 -ntentional -nfliction of ,"otional )istress
i. 2sually parasitic- attached to another claim; courts disfavor ..<; /o parasitic
attachment
ii. <motional ;istress- hen I intentionally inflicts through e+treme/outrageous
conduct /a causal connection severe emotional distress
iii. Krd parties difficulty
R*#- "a>ority rule( Fa"ily "e"bers2 if 'resent2 "ay recoer: 9r* 'arties
can recoer2 but ?sli#ht@ bo*ily in>ury; 'hysical contact is re5uire*6
iv. %ishan*lin# a cor'se- subject to liability for ..<;; only family members can
recover; punitive damages sometimes alloed; shared crim/civil liability;
aggravating element- culture
v. !eckstro"s Socio(!iolo#ical Theory- last of the line arguments should be
alloed; judges leery b/c suggests some children orth more than others $i&e&
adopted ones%; courts should respect impulse of importance of replicating ;(B
III. III. S ST+-CT T+-CT L L-0!-L-T/ -0!-L-T/ 0.) 0.) . .,GL-G,.C, ,GL-G,.C,
1. Bro-n v. 'endall- man tries to separate fighting dogs, accidently hits D /stic!
a& +ule1 .e#li#ence is *eci*in# stan*ar*- .f I as using ordinary care- no liability&
6
2. (let#her v. Rylands .- I1s reservoir lea!ed, damaging D1s coal mine
a& +ule- I is strictly liable regardless of intent/negligence&
3. Rylands /- +ule- *trict liability applies to damage caused by activities/items originating
from I1s property $i&e& cattle, privy, al!aline or!s, ater reservoirs at the time%
a& Posner- (egligence is the most effective system; strict liability forces cost-
internali,ation, leaving it to the mar!et to dispose of inefficient activities
b& Duncan Kennedy- here, class issue, courts are protecting the nobility
,. Rylands 0- +ule1 +ylan*s is strictly liable b;c non(natural use $creation of reservoir%&
.f natural use $mine coal, ater percolates through to mine belo%- not liable&
a& ;efense only if act of god causes the damage
b& U.S. uic!ly rejected having a dominant system of strict liability
-. Bro-n v. Collins- horse startles, brea!s lamp post
a& +ule- *" not applicable b/c horses common and I used reasonable care
b& .f 2&*& had applied Rylands test during .ndust& Rev& ould have cut groth
dramatically
.. Po-ell v. (all- spar!s from steam engine cause fire on D1s property
a& +ule1 Ahen statute clearly states liability2 co""on(law su''lante*(
.,GL-G,.C, P,+ S,6
b& 9ost statutes set a minimum standard of care; compliance /doesn1t mean you1re
reasonable/ not liable& 9ay be found negligent per se, but this doesn1t ensure liability&
9ust still find unreasonableness as legal cause of injury& :oever, reasonableness
never plays a role in strict liability&
4. Hol"es- p& AOP, LL- importance of an objective standard
B. *trict "iability and (egligence- 9odern #imes
1. .e#li#ence $4uestion of degree% s6 Strict Liability $Chec! social attitude toard
conduct; then liable or not%&
2. !tone v. Bolton .- D *tone hit by cric!et ball from cric!et ground close to public road& I
found negligent&
a& +ule- 0ne is negligent if there as a reasonably foreseeable ris! of severe injury /no
effort to mitigate&
3. Bolton /- I prevails; +ule- .n negligence, consider 4uestion of degree- A& remoteness
of ris! of injury and =& seriousness of conse4uences& "iability based on negligence-
reasonable standard of care&
a& ;& 3ennedy ould say la is favoring upper class&
b& 5roper rule for sports teams $negligence v& *"%> #urley- *", stadiums are CCB $most
information, insurance, internali,ation of cost, gives business incentive to be safer,
forces businesses to bear the cost of their activities or be forced out%
,. Hammontree v. ,enner- epileptic driver crashes into store, injuring D
a& +ule- (o negligence if ta!ing due care and suddenly overcome by medical condition&
b& +ule- *" should apply to unforeseeable instances&
I5. I5. . .,GL-G,.C, ,GL-G,.C,
A. -ntro*uction
1. #urley- ;etermination of the 6reasonable person1 standard is relative to the situation,
culture, society, etc& (0# just duty&
2. <lements $@ =EA%-
a& dut$ by I to act/refrain from acting
b& breach of that duty by I1s failure to conform to re4uired standard
7
c& sufficient causa connection bt the negligent conduct and D1s injury
d& Actua harm that is measureable/compensable
e& andQ /in scope of iabiit$
i. i&e& pro+imate cause- not necessary though
3. R*# @ =E=- .e#li#ence- conduct falling belo the standard established by la for the
protection of others against unreasonable ris! of harm
a& #he test is objective
b& Care must be reasonable, not perfect
B. The +easonable Person
1. 3noledge, <+perience, and 5erception
a& Reasonable person consists of- I1s !noledge and observations, hat average society
ould do $calculation of the ris!s%, I1s possible superior intelligence in an e+treme
case
2. 3noledge Common to Community
a& #he conduct of a 6prudent man1 is applied to negligence, hich is an objective standard&
b& Vaughan v. Menlove- 6dumb1 farmer, dangerous hay ric!, burns neighbor1s property
c& +ule1 Sub(stan*ar* intelli#ence ?sub>ectie ar#6@ no eBcuse: "ust still "eet
ob>ectie stan*ar* ?or eeryone woul* clai" to be *u"b@6
i. Hol"es- the la uses an objective standard& #he la sees you not as )od sees you&
3. Bctivities Re4uiring *!ill
a& 5erforming a licensed/ special s!ill activity mitigates consideration of personal
attributes $age, impairments, etc&%, holding the person to the standard of that class&
b& 1aniels v. *vans- AF yr& D old !illed hen driving a motorcycle
i. +ule1 -f 'artici'atin# in an a*ult actiity2 hel* to an a*ult stan*ar* of care6
,. Bge
a& Children
i. .f adult activity, held to reasonable, adult standard $;aniels%&
ii. 0therise, children ho commit negligent acts are held to a subjective standard,
considering the age, maturity, and intelligence of the child& R O $no capacity for
reasonability%; O ? L/AA $presumption of no capacity%; 'y AA, presumption of
capacity; Bfter AO, considered to have capacity&
b& +ule1 License* 0ctiity( %UST "eet reasonable 'erson stan*ar*6
i. Roberts v. Ring- LL yr& old man /sight/hearing issues hits L yr& old
-. 5hysicians
a& %a>ority- Reasonable person / customary practice of reasonably ell-4ualified
practitioner, licensed or not&
b& %inority- reasonable person / - - - N local conditions
.. 5hysical Characteristics/ ;isabilities
a& +ule- 5ublic areas must be made safe for all; foreseeability re4uires anticipation of
blindness, height differences, and even into+ication $public policy incentive%&
b& (let#her v. City of %berdeen- City leaves unfenced ditch by sideal!, blind D falls,
injured
4. 9ental Capacity
a& +ule1 -nsanity is a *efense to ne#li#ence O.L/ when su**en6
b& Breunig v. %meri#an (amily Ins&- I has history of mental illness, thin!s )od is
directing her car, crashes into D
c& 6uestion to as&7 shoud 8 have &no%n or ta&en preventative steps9
8
C. Calculus of +isk
1. General1
a& #o levels-
i. Commonsense version of negligence
ii. <conomic version based on costs and benefits- 6calculus1 of ris!
B reasonable person is not re4uired to avoid all accidents or alays pay liability
.n negligence, you may !ill/hurt a person and not be liable; assumption that some
acts are reasonable
b& +isk(Utility Test1 Han* For"ula1
-f ! C P B L liability for ne#li#ence
i. ! ? the burden/cost of ade4uate provisions to avoid the accident
ii. P ? the probability of the injury
iii. L ? the loss/injury itself
iv. .f ' S 5" no negligence liability
c& #heory-
i. Posner- "and formula ma#imi$es efficiency b/c it allos people on the ground to
ma!e the appropriate decision; applied on small and large levels ealth
ma+imi,ation
ii. Calabresi $*" is most efficient method%- :and formula isn1t that efficient
;oes not consider contributory negligence $common la rule- here if you1re
AT negligent, you get M%; this factor alone !ills its efficiency
i&e&, if I had a lo ' and high 5", but D is AT negligent- D gets nothing
and I al!s aay
%etter& "and w'a factor for mitigation of contributory negligence
Aso- :and does not consider hether D could have avoided the accident at the
loest cost
o *uggests 6reverse :and formula1- loo! at it from the other party1s side, find
the cheapest cost avoider *"
(ord Pinto #ase- calculated cost of projected deaths, '2# didn1t factor in
punitive damage, so Ford ended up losing a lot of G
d& United !tates v. Carroll +o-ing- birth of "and formula; %arge owner too!
unreasonable ris! by not staying in attendance of barge that got loose( sun!( could
have saved cargo
i. +ule- D1s negligent acts ;0 factor into ris!/negligence&
2. ;etermination of 5" or 9agnitude of Ris!
a& Consider e+tent of damage, societal value, and probability $i&e& people more valuable
than property%
b& Blyth v. Birmingham ater or&s- coldest frost on record, valve pops, D1s property
flooded
i. +ule1 .o *uty of care to "iti#ate eBce'tionally unforeseeable risks6
ii. Turley- Calve installer is CCB&
c& But see Osbourne- driver opens door, clips handlebars of bi!e
i. +ule- Calculus of ris! must ta!e societal benefit into account; humans live in
association, and duties/rights are relative&
3. ;etermination of '- 'urden of Blternative Conduct
9
a& Cooley v. Publi# !ervi#e Co&- ire falls, e+plosive sound, oman suffers neuroses
i. +ule- .f no better option e+ists, I ill not be held liable for choosing the safest
option&
b& %ndre-s v. United %irlines- bag falls from overhead compartment, injuring
Bndres& Court- injury as foreseeable, and 2nited could have installed nets at a lo
cost&
i. +ule1 Co""on carriers are hel* to a hi#her stan*ar*2 so they can be hel*
liable for less ne#li#ence6
ii. Post +e"e*ial +e'air +ule- you cannot use the fact that ) made a safety reform
against the ). %ut( you can say that other companies are using the safer design&
,. Conduct in <mergencies
a& Su**en ,"er#ency( >ust act reasonably
b& )an#er inites rescue&
i. *#&ert v. )ong Island R.R.- baby on trac!s, man runs to save, injured by train
+ule1 Cause of 'eril can be hel* liable if the 'ersons act is reasonable6
+ule- Rescue of life, even if lo probability of success, ill not be punished&
D. Custom
1. Customary conduct (0# controlling&
a& +, Hoo"er .- #ugboat operators step outside of customary precaution by not having
cheap radios that ould have arned them of the storm $prevented loss of cargo%
i. +ule- Customary precaution is significant&
b& +, Hoo"er /- +ule - Custo" is not controllin# 'roof of reasonableness6 !etter to
a''ly the Han* For"ula6
i. <ven if only one company has adopted the precaution, it may still be a reasonably
re4uired action&
2. 5rofessional/9edical <+ception
a& )ama v. Borras- D has bac! surgery, ;r& does not follo prudent procedure/custom&
i. +ule( -n 'rofessional "iscon*uct2 look at what the current stan*ar*
'roce*ure( what a reasonable *octor woul* hae *one6
b& Helling- D, K=, not tested for glaucoma, hich as industry custom for people under
OM& Court rejected this arg&, finding the entire industry unreasonable&
c& Canterbury v. !"en#e- I, ;r&, didn1t arn D $receiving bac! surgery% of AT danger
of paralysis b/c of industry custom& Reject by court&
i. +ule1 +easonable stan*ar* of care ?here infor"e* consent@ oerri*es custo" if
custo" is unreasonable6
<+ceptions made if patient incapable of consent of disclosure poses ris! of harm&
d& Locality +ule- a ;r& could argue that his conduct is not considered malpractice in his
locality; this defense is no longer alloed; doctors held to a national standard
E. *tatutes and Regulations
1. )eneral
a& .e#li#ence 'er se- jury can s!ip calculus of ris! by determining someone violated a
standard of conduct $usually codified in municipal code or statute%
i. *tandard of conduct re4uired for an activity $must have these
4ualifications/training%; if standard of care lac!ing negligence per se
ii. even if negligent per se: ma$ sti not be iabe uness 2 sho%s $ou %ere factua
cause of in"ur$ and there are no defenses
10
iii. even if not negligent per se, not conclusive, as a 6reasonable person1 may be
re4uired to ta!e greater precautions
iv. Bllos bridge for jury to go straight to causation
b& Public Choice School- issues ith statutes being gap-filled by judges
i. Feres ;octrine- military personnel are not alloed to sue the federal government for
damages for injury; this as created by the *up& Ct& hen it as gap-filling the
F#CB
<asterbroo!- dealism- ould sharply critici,e
9acy- do gap-fill; interpret /the public regarded purpose
c& Martin v. Her2og- D driving /o headlights, crashes into I, D !illed&
i. +ule- .f negligence by statutory infraction is lin!ed to the accident, it is admissible&
d& Bro-n v. !hyne- 'ron practicing chiropracty /o license paraly,es *hyne&
i. +ule1 -f you hol* yourself out to be license* in that 'rofession2 you are hel* to
that 'rofessions stan*ar* of care6
e& Uhr- D suing school system b/c school didn1t follo statutory re4& of scoliosis chec!
i. +ule- .n some cases, statutes are meant to be a guide to help society& .n that
instance, the institution is (0# to be held to negligence per se&
2. ;ram *hop *tatutes
a& *tatues used statutes to change the common la rule $here previously you couldn1t be
held liable for over-serving%
b& General +ule- you are legally liable if you continue to serve someone who you could
tell was already into#icated
c& Cases usually do not involve drun! suing the bar; 9ost involve a Krd party injured by
the drun! suing the bar
d& =nd generation of dram shops- homeoners being sued $began as negligence per se,
often involving serving of minors ho then rec!ed%; also frats/sororities; stadiums
i. Blso- company parties; avoid liability by- having cash bar, drin! ti+, ta+i vouchers,
have boss there, and ma!e hotel rooms available
F. &u*#e an* &ury
1. #orts is a jury-driven field
a& ;ecisions of fact by a jury get significant deference in court of appeals
b& Findings of la $by the judge% are much easier to overturn- no deference
c& 9i+ed legal/factual 4uestions
i. 9ost circuits give de novo revie, treating them as 4uestions of la
d& Restriction of evidence by the judge that the jury may hear- controversial
i. Socio(!iolo#ical School- jurors should be alloed to consider the loss of one1s
;(B /the death of a child
ii. 8udges ill not allo testimony that gives validation to prejudices $i&e& religious%
2. 8ury (ullification
a& 8udges scrutini,e attorney instructions to ensure 6jury nullification1 isn1t being argued
G. 5roof of (egligence
1. +es -'sa Lo5uitor
a& Res ipsa lo4uitor is *+, factual causation
b& *tandard- Jou must sho that the accident-
i. wouldn-t ordinarily occur
ii. caused by an instrumentality e;cusive$ in contro of I
iii. <ot due to an$ vountar$ action on part of D
11
2. 'asic <+clusive Control
a& Byrne v. Boadle( D struck by flour barrel bein# lowere* on Es 're"ises
i. +ule1 Presu"'tion of +-L for torts arisin# out of Es 'ossession 'ro'erty6
3. Right or duty to control ill satisfy e+clusive control&
,. .renade w'short fuse- e+clusive control as at the point of manufacture, R." satisfied&
a& 8ust b/c a product has been in the stream of commerce for a long time does not mean it
is not still in the e+clusive control of the ma!er&
b& Ast element is the 50<- there is no other e+planation
-. Colmenares v. !un %llian#e Ins&- escalator malfunctions
a& +ule- .mmediate agents, common carriers, of public grounds are directly responsible
for negligence of devices on their premises despite indirect control& Dut$ is non)
deegabe) this is the case in genera in areas %here pubic is ao%ed.
i. .ndependent Contractor ;octrine- creation of sub-contractor co&s to shield liability
.. 3barra v. !"anguard- D, patient, injured hile undergoing surgery
a& +ule1 /ou can a''ly +-L re#ar*less of how "any Es there are6
i. "i!ely helpful here there is cohesion in the profession/situation- i&e& athletes,
police&
b& Turley- Conspirac$ of sience probem- doctors ere covering up for each other& 2sing
R." forces someone to be honest&
5. 5. C C0US0T-O. 0US0T-O.
A. .ntroduction- =-*tep #est
1. Cause in Fact ?Factual Cause@( 3!UT(FO+4 T,ST
a& Jou must first sho the act of unreasonableness as the factual cause of injury, and
later that it as the legal cause
b& *imilar to and often confused /R."; ;ifferences-
i. someone may be unreasonable under R." but not under causation
i&e& argument that sponge left in abdomen caused cancer; may be successful
/R.", but not causation of cancer
c& 2sually straightforard, handled as a /%ut-0or1 test- the harm would not have
occurred absent' but-for the conduct
2. ProBi"ate Cause ?Le#al Cause@
a& = Bpproaches-
i. Forard "oo!ing Bpproach
7as the chain of events foreseeable/ probable>
8udgment made from standpoint of I at time of act
;enies recovery of harms not /in the ris!
ii. 'ac!ard "oo!ing Bpproach
Su'erce*in#; interenin# cause>
"oo!ing for any Krd party/ natural event severing lin! bt I and D
B. Cause in Fact; Factual Cause
1. ,he injury would not have occurred 2but-for1 )-s conduct.
2. *tandard- 'asic but-for proof must e+ist& Can1t be speculative/ unlin!ed to I&
12
3. 43 RR v. $rimstad- husband falls in ater off boat, D can1t find life vest, claims but-for
a& +ule1 S'eculatie Fbut(for causation is not enou#h to show ne#li#ence&
,. 5u#ho-i#2 v. United !tates- oman prescribed ma+ =+ recommended dosage fatal
disease
a& Rule-
-. +ST 7 G8- 'urden of proof is on D to sho harm is attributable to I&
a& 9edical situations, consider- ;aubert $majority%, Frye $minority%&
.. $* v. ,oiner- D, electrician has cancer; splashed /carcinogenic coolant, but also smo!er
a& = *tandards-
i. Frye Stan*ar*- you can only use e+pert testimony that is generally acceptable
$published, recogni,ed% $higher bar than ;aubert%& 5ro-jury&
ii. )aubert Stan*ar*- rules of evidence don1t re4uire scrutiny of e+pert testimony, but
judges should scrutini,e testimony to prevent bad science&
Court is the gate!eeper, determining if testimony is relevant and reliable&
5ro-judge- allos judge ability to !ill a case before getting to the jury&
b& )< brought bac! a general ;aubert standard, here judges play a more aggressive role,
allos judge ability to ma!e a legal and factual determination regarding )<1s standard
of the e+pert1s theory&
i. 9adisonian- distrust judges, elitist counter-majoritarians
4. Hers&ovits v. $rou" Health- late diagnosis of lung cancer; D1s survival chance reduced
a& +ule- lost chance reduction rule- the test is but-for the act, there ould be higher
survivability chance $stnd cause in fact U%& (0# but-for the act he ould1ve
survived&
b& 9ajority is- loss of any chance rule; 9inority- VMT chance rule&
=. Concurrent, indivisible injury ? held jointly liable& .f only one I found, AMMT
responsible&
a& 'ingston v. Chi#ago RR- = fires joined, burning D1s home&
i. +ule- .n multiple causation cases, each act is regarded as a cause of harm&
ii. +ule- .f possible apportionment& -f Es acts coul*e been sufficient to cause the
tort2 E can be wholly liable6
>. Concurrent, independent tortfeasors, one cause ? jointly/e4ually liable& .f only one I
found, AMM T responsible&
a& !ummers v. +i#e- = hunters, on either side of D, shoot D, fault not divisible
i. +ule1 Ahen "ulti'le 'arties are ne#li#ent an* you cant 'roe which cause*
the in>ury2 the in>ure* 'arty can hol* all ne#li#ent 'arties res'onsible6
ii. #urley- 68oint and several1 liability encourages responsibility of all culpable&
1?. .ndustry "iability
a& <nterprise "iability ? sector of industry responsible for tort is identified, and all
neglected to mitigate injury !noingly&
b& %arket Share Liability ? 9a!er of fungible product $drugs% unidentifiable, so each
co& is proportionally responsible, by their mar!et share&
i. Ast 4uestion- is the product fungible/identical
ii. !indell case( ),S cause* birth *efects( che"ically i*entical 'ro*uct2 i"'oss6 to
i*entify true E ?no recor*s@
iii. !&i"-orth v. )ead Indust&- child suffers lead poisoning, sue on mar!et share liab&
*indell rule not met b/c liability occurred over AMM yrs&- too big of a class
13
C. ProBi"ate ?Le#al@ Cause( Physical -n>ury
1. )eneral
a& 5ro+imate Cause- cho!e point of causation& 7as 6duty1&
i. 'ut duty analysis still primary in common carriers, respondeat sup&, no duty to
rescue rule&
b& Ryan v. 43 RR- I negligently sets fire to on property, number of other houses
burned
i. +ule1 E is liable for 're*ictable *a"a#es2 .OT res'onsible for re"ote *a"a#es6
2nforeeable/Remote/ .ndirect Conse4uences
c& Ris! 5rinciple- I1s liability limited to- foreseeable conse4uences, persons /in ,one of
danger, ris! to a class of hich D is member $not liable for harm to unanticipated
class%&
i. Palsgraft v. )ong Island RR- man tries to board leaving train, = employees help,
man drops pac!age, hich e+ploded, being full of fireor!s
+ule- 7hen the harm is not foreseeable because it is too remote or is outside of
the ,one of danger, no liability& Cardo,o- more limited basis for liability&
o Bndres- dissent- ants ider lens / substantial impact test- everyone is in
the ,one of danger if substantially impacted by the negligence&
Hone of )an#er Test- .s D inside ,one of danger as seen by I>
ii. agon Mound- ship spilled oil, carried by tide to Ds harf, D told not flammable,
elding causes fire- damage to harf
+ule1 ProBi"ate cause nee*s reasonable an* foreseeable in>ury& 0verrules
5olemis; allos court tighter control over cases, throing out more if
unforeseeable
d& ;irect Conse4uences Rule $minority- hindsight%
i. Bs long as injury is not too remote and there is a direct causal lin!, even if
unforeseeable, I can be liable&
ii. In re Polemis- charter boat hired negligent or!ers ho started fire by dropping
board
+ule1 -f *irect causal link btw ne#li#ence an* the tort2 liable re#ar*less of
lack of foreseeability6
Turley- 5olemis jurisdictions are e+pansive on pro+imate cause- more cases go
to jury, rather than alloing judge to dismiss on basis of unforeseeability&
e& @agon 1ound "urisdictions vs. Aoemis "urisdictions- even split in 2&*&
i. Aa#on %oun*; Car*oIo >uris*ictions( look at what is reasonably foreseeable2
cuttin# off liability when you woul* not hae reasonably foreseen cause of
in>ury
.arrower( 3ardo$o- must as! if it was w'in the $one of danger ?reasonably
foreseeable@
ii. Pole"is; 0n*rews >uris*ictions( "ore liberal2 is there a *irect connection btw
act of ne#li#ence an* the in>uryJ
Liable if you 'laye* a substantial role; ha* causal connection to in>ury6
f& Rescuers
i. I is liable if rescuer reacts to peril appearing imminent /reasonable care&
14
ii. agner v. International Ry&- 7agner falls off train, D goes searching for his
cousin and is injured
+ule1 reasonably foreseeable so"eone woul* co"e to ai* en*an#ere*
'erson: E hel* liable for 'roBi"ate causation6
iii. (ote- profession rescuers fall under firefighter rule- limiting recovery hen
injured in line of duty
g& <lasticity of Foreseeable and :a,ard
i. Courts can contract/e+pand each to further policy or scope of liability
ii. Continuum- Herbert Virden Polemis
iii. Virden v. Betts- I negligently installed ceiling, D fell from ladder hile repairing
+ule- D1s on acts can be superseding if his acts are not /in the scope of the
ha,ard created by I&
iv. Hebert v. *nos- I negligent leaves lea!ing toilet, D aters plants, shoc!ed
+ule- .njury not foreseeable; looser standard than Cirden&
h& #hin-s!ulled, eggshell
i. I is liable even if unaare of D1s e+treme susceptibility to harm
2. .ntervening Cause
a& R*#
i. (0 intervening cause if- foreseeable& 0R unforeseeable by type that I could
foresee as result of conduct&
ii. /,S interenin# cause if1
.ot foreseeable
B(;- type that I could not foresee as result of conduct
b& Foreseeable causes-
i. Coincidence/ 0rdinary Bct of )od
Berry v. !ugar 4ot#h- D driving train, tree falls, tree location violated statute
o Rule- 0rdinary natural causes are not superseding and intervening&
o Rule- *tatutory violation doesn1t necessarily establish causal chain&
o #urley- an intervening cause $i&e& act of )od% doesn1t necessarily cut off
liability& .t must be *25<RC<;.() and intervening&
ii. Cri"inal Con*uct
Bro-er v. 43 RR- train collided /D1s agon, thieves stole D1s goods
o Current +ule1 cri"inal acts are 'resu"'tiely su'erse*in#;interenin#&
o Rule- if you leave someone disabled, you are responsible for foreseeable
conse4uences
c& Foreseeable Conse5uences
i. Marshall v. 4ugent- 5rince, I, drove other car off road, stopped to help, D injured
hen Krd party hit him
+ule1 Ahen you create a situation of e"er#ency2 you are liable for the
in>uries that result2 een if there is an unforeseeable interenin# cause6
D. 5ro+imate Cause- <motional ;istress
1. Ol* +ule- (o emotional distress possible if indirect causal connection; :ad to be a
parasitic claim- .mpact Rule
a& Mit#hell v. Ro#hester RR- pregnant oman miscarries after horse scare on sideal!
2. )illon +ule- <motional ;istress possible if-
a& Bt scene of accident
15
b& Family member; Krd party can recover if physical contact/impact
3. 1illon v. )egg- 9other and daughter see sister !illed by car& *ister in ,one of danger, so
prevails, 9om does on appeal&
a& Wone of danger test collapsed; impact not necessary
b& Brtificial- live #C feed not considered near accident
5I. 5I. BFF.R9B#.C< ;2#.<* BFF.R9B#.C< ;2#.<*
A. ;uty to Rescue
1. General
a& .n 2&*&- as long as you refrain from harming others, you cannot be liable for harm that
occurs; very individualistic
b& F<9.(.*9- 4eslie %ender- (o duty to rescue rule- impact of male-dominated legal
system&
i. super-individualistic; rejects an individual1s collective responsibility
ii. divorced from morality
iii. 'ender allied /Richard Posner, ho argued there should be a duty to rescue-
inefficient to have this rule b/c many lo-cost rescue cases involve a fleeting
ealth differential; problem- people don1t do lo-cost rescues b/c the real value
return of the rescue is only a potential
Re4uiring rescue ould be efficient for society
iv. "a does not distinguish costs, i&e& lo-ris! rescue cases
c& 3ania v. Bigan- 'igan dares Jania to jump into a ater-filled hole and then atches
him dron; no duty to help/rescue
2. Bu#h v. %mory Manuf&- E yr& old trespasses into seing mill, hand crushed
a& +ule- .n case of trespassing, oner only under re4uirement of notification, (0#
6rescue1 or 6forcible e+it1&
b& <+ceptions- <nticement, setting traps, attractive nuisance, anticipated trespassers may
cause liability
3. Hurley v. *ddingfield- ;r& refuses to give care arbitrarily, ife does
a& +ule1 )octors hae no *uty to rescue; take 'atients&
b& 'ender- should have duty for lo-cost rescue; 5osner- more efficient to re4uire rescue
,. But see Montgomery v. 4ational Convoy- I truc!s stalled, bloc!ing road at bottom of
icy hill, D1s car collided, D injured
a& +ule- 2narranted non-feasance can lead to liability; creation of danger can cause
responsibility to neutrali,e danger&
-. )ood *amaritan "as- give some protection against liability for coming to another1s aid,
but ill not e+tend to e+treme negligence&
a& "iable if one $A% fails to e+ercise reasonable care or $=% discontinues care, leaving
person orse off than if left alone&
B. ;uties of 0ners and 0ccupiers
1. #ypes of Cisitors/ Respective ;uties
a& -nitee highest care $you1ve as!ed them to come to your property%
i. +ule1 )uty to ins'ect;*iscoer an* "ake safe6
b& Licensees medium care $social guests%-
i. +ule1 )uty to warn of any *an#ers not 'atent;obious6
ii. Fire"ans +ule( 'olice;firefi#hters consi*ere* licensees: only *uty to warn if
you are there ?b;c you *i*nt inite@
c& Tres'asser 9inimum care
16
i. Genera$) no dut$ to trespassers; no trespass intent re4uired
ii. <+ceptions-
0ttractie .uisance- if child trespasser( you have a complete duty to warn;
Bttractive (uisance #est-
o liable here one !nos children li!ely to trespass, serious bodily injury
possible, ris! children cannot appreciate, :and Rule eighs against I
0ntici'ate*;)iscoere* Tres'assers
o some states- duty to arn
o alloing trespassers onto your property can increase your duty to them
0*erse Possession- if you fail to e+clude others from your property $usual AO
yrs& N%, they can claim onership by adverse possession
,ase"ent- letting people use your property for many years, they can develop a
legal claim to the use
2. *pectrum- 2ndiscov& #resp&s ;iscov& #resp&s Bttract& (uis& "icensee1s
.nvitees
3. Robert %ddie v. 1umbre#&- child, habitual trespasser, injured on pulley
a& +ule- .mplicit permission to stay may negate 6trespass1 status& 9ust ta!e steps to
e+clude people from a common area or easement&
,. Common *tandard- )eneral ;uty of Care to all but #respassers
a& Ro-land v. Christian- Roland, guest, injured using handle on ater faucet, I did
not arn
i. +ule- ;uty to arn licensees of non-patent dangers&
C. 'ailment
1. "evels
a& Gratuitous bail"ent $for a friend, for free%- loest duty
b& !ail"ent for hire- highest duty
2. Current trend- impose a duty or reasonable care
3. 9ost common types- dr$ ceaning: par&ing garage: coat)chec&
D. *pecial Relationships
1. <mployee, 'usiness Bctions
a& +es'on*eat Su'erior- most common special rel1ship- master/servant,
employer/employee liability- form of vicarious liability
i. +ule1 Ahen e"'loyee is actin# w;in the 3sco'e of e"'loy"ent42 e"'loyer
liable; if frolic and detour- not in scope of employment, employer not liable
b& )& +eal )on Steele- promo event, encouraged teens to speed car accident
i. +ule- .f promo event encourages dangerous conduct, business must ta!e steps to
mitigate ris!s $i&e& Filene1s 'asement edding dress sales%&
ii. +ule- ;uty can turn on the uni4ue class targeted $teenagers%&
2. "andlord
a& 'line v. .677 Mass&- oman assaulted in apt& bldg& common area, lac! of security
i. +ule- #here are some re4uirements of landlords $ho had e+clusive control% beyond
hat is re4uired in municipal code; if crime occurring, duty to ma!e changes&
ii. Stan*ar*- "iability if landlord !ne or should have !non&
iii. Brgument against liability here no municipal code-
Deference to egisature- judge should not graft onto municipal code hen
decision better left to legislature&
17
o Counter-
courts must protect marginali,ed citi,ens- i&e& the poor& )6 Kenne*y-
court must protect loer income ppl b/c legislature does not&
%ancur Olson- 5ublic Choice- landlords have more poer in legislative
system, ill push legis& to further economic bottom line court
intervene
%acey- rule on it to force legislature to change it
Pi#ou- leave it to mar!et>
o 5areto *uperior reached /this decision> (o, there is a lose
o 3aldor/:ic!s> Jes, society improved by decreasing breeding of crime
3. 5eople /2ni4ue .nfo
a& +arasoff v. Regents of UC- grad student obsessed /girl, tells therapist plans to !ill
i. +ule - 5eople in peculiar positions can have a duty to arn if obvious& *tandard of
care> $for ;r&- average doctor%
ii. .n general, #arasoff can e+tend to doctors, media, layers, but not religious figures&
5II. 5II. C CO.T+-!UTO+/ O.T+-!UTO+/ . .,GL-G,.C, ,GL-G,.C,
A. Common la rule- 2dirty hands1- barred from any recovery if even only 56 contributorily
negligent
B. Contributory negligence jurisdictions attempted to mediate the unfairness of the rule /the
"ast Clear Chance ;octrine-
1. Hel'less 'eril- even if D is contrib& neg&, I is still responsible if they had a last clear
chance to prevent the peril b/c they should have !non of D1s helpless state
2. -nattentie D- common la re4uires I have actual !noledge that D as in peril
C. 9ost states ent to comparative negligence
1. PU+, CO%P0+0T-<, .,GL-G,.C,( re5uires >ury to assi#n res'onsibility to
either 'arty: take K assi#ne* to D an* subtract it fro" the awar*
2. P0+T-0L CO%P0+0T-<, .,GL-G,.C,( *raws the line at LMK: if you are oer
LMK at fault as D2 you cannot recoer: if below LMK2 you will lose the K assi#ne* to
you
3. Comparative *efenses under negligence and strict liability
a& 7ule& 3ontibutory negligence is *+, defense to strict liability8 $impt& for e+am%
b& Contributory fault- reduction for fault of D, even under strict liability $R*# Krd%
i. Controversial; some argue this is a bac!door ay to reduce liability%
c& Common ;efenses-
i. 0ssu"'tion of the risk; in intentional tort / consent; good defense in *"
ii. ,B'ress assu"'tion of the risk
5III. 5III. & &O-.T O-.T 0.) 0.) S S,<,+0L ,<,+0L L L-0!-L-T/ -0!-L-T/
A. )efinition- ma!ing one I responsible for the negligence of all those responsible for the
injury; that one I can trac! don the others, suing for contribution
1. 9ust argue the individuals had a common purpose $often a financial one%
2. 5arallel doctrine- joint enterprise $usually financial too%
B. Cicarious liability
1. Respondeat *uperior
2. 5arents- not too common, particularly /very young children; more common- holding
parents directly responsible
IB. IB. S ST+-CT T+-CT L L-0!-L-T/ -0!-L-T/
A. Bnimals
18
1. )eneral
a& Common la imposes *" for any ild animals in your 'ossession&
i. 7olves most common ild pet; illegal pet in all VM states; olf mi+ also illegal&
ii. 5ossession>
dominion and control
;oes it have animus rivertendi> ;efinition of domesticated animal- habit of
return/ trained to come to you
0il/ gas often analogi,ed to ild animal
iii. Certain breeds of dogs treated as vicious/ ild $even if !ept as a pet%
i&e& pitbulls, ;oberman pinchers
b& N Free !ite +ule; (0# one free bite- negligence( unless one !nows' should !now(
then S4; even if 5st bite( owner held S4 if there were indicators animal was vicious
c& Woos- protected from *"- negligence standard in most states
d& )istress )a"a#e Feasant- if domesticated animal does damage to your property $i&e&
cattle crushes crops%, you may hold the animal until oner ma!es payment of
restitution&
2. $ehrts v. Batteen- dog chained to pic!up, )ert, as!s to pet, dog bites her in face
a& +ule1 SL for Fwil* ani"als $olves, mon!eys, bears%&
b& +ule1 .e#li#ence ?.OT SL@ for co""on *o"esticate* 'ets6 ,Bce'tion1 Unless
owner knows or has reason to know that the ani"al has abnor"ally *an#erous
'ro'ensities6
B. 2ltra-:a,ardous/ Bbnormally ;angerous Bctivities
1. General
a& Bbnormally ;angerous balancing factors- high deg& of ris!, li!elihood of harm,
inability to eliminate ris! /care, e+tent to hich it1s not a common usage,
inappropriateness in surroundings, value to community
i. 9s!& 0oreseeable' highly significant ris! even w'reasonable care: 3ommon
usage:
b& Rylands
i. Ori#inal +ule- Conduct on land in non-natural use /escaping threat held to
*"&
ii. %o*ern +ule- (o longer necessary that conducted on land or escapes&
c& !"ano v. Perini Cor"&- Is constructing tunnel in 'roo!lyn using dynamite, damage
D1s car shop&
i. +ule- Reasonability/ intrusion irrelevant- blasting is inherently ris!, held to *"
standard&
ii. 5otential defense- social utility outeighs costs; hold to negligence standard&
d& Indiana Harbor RR v. %meri#an Cyanamid- Cyanamid ships to+ic chemical, lea!,
RR charged for cleanup
i. +ule- ;ue care from RR ould have prevented spill, so negligence standard ma!es
more sense than *"&
ii. #urley- 5osner sounds li!e Calabresi here, arguing homes near RR trac!s are CCB;
#urley disagrees- RR could charge more, double hulled cars, avoid certain rails&
e& .ntervention by Krd persons, animals, forces of nature does not bar *"&
f& (o *" for harm caused to abnormally sensitive activity $i&e& min! farm%&
g& ;efenses-
i. D1s Bssumption of the ris!- bars recovery
19
ii. Contrib& (egl&- (0# a defense to *"
'2# !noingly, unreasonably subjecting himself is a defense to *"
C. .U-S0.C,
1. )eneral
a& ;oesn1t fit ell /in *"- more stand-alone&
b& Form of action for harms that can be based on intentional conduct, neglig&, or *"&
2. 5rivate (uisance
a& Priate nuisance- thing/activity that substantia$ and unreasonably interferes /D1s
use and enjoyment of his land&
b& Vogel v. $rant *le#tri#- cos on mil! farm not producing due to stray voltage
i. +ule- (uisance may be either physical or non-trespassory interference&
c& (ontainbleu Hotel- I hotel constructing addition hose shado ould bloc! light/air
to D1s property in *outh 'each, F"&
i. +ule1 0ccess to li#ht;air is .OT a lawful ri#ht&
ii. Bncient lights concept unanimously repudiated in 2&*&- idea that you do have some
possession of light/access; idea of your property as a cylinder going up to god&
d& General +ule1 you cannot clai" aesthetics as a nuisance $i&e& hot pin! house%&
e& +ule- *pite fences are a nuisance if holly malicious $must serve no useful purpose%&
f& #a!ings clause- gvmt cannot ta!e your property /o compensation related to ,oning
las $diminishing property value%
i. +en5uist majority- more than occupation/ eminent domain, should entail any
diminishment of value
#a!ings revolution- massive ,oning las being struc! don; stopped b/c
01Connor starting refusing to accept cases
*calia- framers !ne of nuisance but didn1t mention it hen riting ta!ings
clause; assumption you can prohibit a nuisance /o compensation
ii. <nvironmentalists horrified; stri!ing don ,oning las massive development in
fragile ecosystems
g& Rogers v. *lliot- I rings church bell daily, sunstro!ed D has convulsions, I refuses to
stop ringing bell after as!ed
i. +ule1 3,##shell thin skull4 rule *oes .OT a''ly in nuisance: "easure"ent of
nuisance consi*ers nor"al2 reasonable 'erson6
ii. Regulation of church- must consider social value of the activity $mos4ues call%&
h& *nsign v. alls- I breeds dogs, ton gros to surround him, bar!ing/smells bad
i. Rule- ;oesn1t matter ho long I has been there if public policy re4uires removal&
i& !"ur Industries- geriatric development ne+t to cattle feed lot, smells; development has
to pay for relocation- e4uitable remedy& Coasian problem&
j& Boomer v. %ltanti# Cement- neighbor landoners complain bad air
4uality/smo!e/dirt
i. 5ermanent damages $or no damages% may be applied if economic/ social value of
nuisance is high enough&
ii. "oo!s at CCB& 0emed$ options- A& enjoin for period of time to give time to ma!e
technological changes; =& grant injunction for finite period, vacated upon receipt of
perm& damages&
5roblem- 5erm& damages bars future home-oners from see!ing diff& redress&
2ltimate Coasian problem- = resources in conflict&
20
<+pansion of the universe- homeoners- others suffering from pollution; cement
plant- closure causes lost jobs, lost ta+es, loss of needed cement, collateral
businesses hurt
3. 5ublic (uisance
a& Public nuisance- an unreasonable interference /a right common to the general public&
b& 9 private citi$en may only see! remedy if the nuisance is&
i. Of a #reater *e#ree than to the co""unity&
ii. %nonymous- road from D1s house to property is bloc!ed
o +ule- 5ublic nuisances are to be corrected by the stated&
,Bce'tion- .f D suffers a special and elevated harm, he may bring a
nuisance claim&
iii. Of a *ifferent kin* than the co""unity
60/ Madison %ve. v. (inlandia Center- construction collapse causes
commercial location and surrounding bloc!s closed for ee!s
o +ule- For public nuisance to actionable, person must have suffered injury
beyond that suffered by the community at large
iv. Camden v. Beretta- County sues gun manufacturer claiming criminal use of the
guns is nuisance b/c of governmental costs
+ule- 5ublic nuisance does (0# apply to products distributed lafully $even if
they have illegal ends%&
B. B. P P+O)UCTS +O)UCTS L L-0!-L-T/ -0!-L-T/
A. .ntroduction
1. Tren*- 5rivity :idden ;angers <scola defective design/ duty to arn
rescission
B. <+position
1. %acPherson +ule- 0rdinary (egligence- 9anufacturer liable hen-
a& unsafe condition fraudulently concealed
b& product is inherently dangerous to human life
2. Ma#Pherson v. Bui#&- D driving 'uic!, heel collapses due to defect
a& +ule- 5roducts not inherently dangerous may be subject to *" if negligence in
manufacturing elevates the product to a potentially dangerous item&
b& +ule- .f product could foreseeably cause danger, duty to e+amine&
3. *s#ola v. Co#a Cola- aitress unloading co!e bottles, one e+plodes
a& +ule1 +-L use* to a''ly SL to 'ro*ucts&
i. 9anufacturer is CCB; R."- liability for foodstuffs/products even hen no
negligence&
ii. #a!eaay- Bdam *mith- hidden hand of the mar!et used to get rid of unsafe
products; manufacturer has incentive to ma!e products safer
,. 5resent ;ay #hreshold .ssues-
a& 7as the product supplied by a commercial supplier in *0C $e+cludes casual sellers%>
b& 9ust be a product: not a service
i. Bmbiguous e+&- tainted blood; service or product> hosp& says service, but bills you
for blood, hich they received for free& Courts say service&
c& :as product been substantially altered, and does D !no about it>
d& ;esign and arning defects ta!e an initial application of negligence standard, applying
hat is reasonably foreseeable& Bfter that, *" !ic!s in&
C. 5roduct ;efects
21
1. General
a& 5roducts liability can come in negligence, strict liability, or arranty
b& K types of defect in product liability-
i. manufacturing $rarely go to court, unless foreign object defect%
ii. design
iii. arning $reasonableness standard under both restatements%
c& (ote- Bpply all K tests belo on the e+amX
d& +ST 7 OMG0( %a>ority +ule O+)-.0+/ 3Consu"er ,B'ectations4 SL
i. R*# @ OM=B
0ne %ho ses an$ product in a defective condition unreasonab$ dangerous to
the user or consumer or to his property is sub"ect to iabiit$ for physical harm
thereby caused to the ultimate user or consumer, or to his property, if
o the seller is engaged in the business of selling such a product, B(;
o it is e+pected to and does reach the user or consumer /o substantial change
in the condition in hich it is sold
#he rule stated in *ubsection $i% a''lies althou#h
o the seller has e+ercised all possible care in the preparation and sale of his
product, and
o the user or consumer has not bought the product from or entered into any
contractual relation /the seller $absence of privity%
)oal- consumer protection purpose; anyone in *0C is potentially liable; cannot
arn aay a defect
ii. Stan*ar* / Or*inary 3Consu"ers ,B'ectations
'asic Re4uirements-
o Appies to products on$: not services
)rey areas-
blood / service
Birplanes-
-#ransportation is a service, '2#
-#he manufacturer of the plane product
o 9ust have a commercia suppier, and all liable
9anufacturers, retailers, assemblers, etc&
(0#- garage sale person
o 5roduct cannot be substantia$ atered
<+&- Re-or!ing ne car1s aesthetics but failure occurs not related to
changes not substantial alteration
,Bce'tion- *ubstantial alteration may be held liable if-
an objectively forseeable modification, 0R
I consents to modification, 0R
modification per instructions
e& +ST 7 OMG Hybri* %a>ority +ule 3+isk(Utility4 Test
22
i. Ris!-2tility #est for ;efective ;esign
e+pansion of consumer e+pectation
Can be appied as an aternative to Cconsumer e;pectationD %hen the consumer
doesn3t &no% the e;pectation $high tech& products%
f& +estate"ent 9r* 7 G( %inority +ule
i. R## @ =- Categories of 5roduct ;efects / 9inority
Categories of 5roduct ;efects- 9anufacturing, ;efective ;esign $if a
reasonable alternative design e+ists%, and arning defect
o 0EE F 2GbH shifts attention: increases burden on 2I 2 is forced to come up
%+an alternative design
easy if there already is an alternative design out there; if not- can really
increase litigation costs
o 9uch more hostile standard- forces D to come up / reas& alternative design
compared to R*# @ OM=B, here D just had to say current design itself
dangerous
2. 9anufacturing ;efects
a& R##- 5roof of specific defect not re4uired hen incident is $A% a !ind that ordinarily
occurs b/c of defect; $=% hen some portion of the injury can be traced to the defect&
b& .ssue- R." can only be applied to a *" standard, and here the local rule is negligence,
so R." is substituted /circumstantial evidence&
c& !"eller v. !ears- house fire, D argues caused by fridge, e+perts differ as to cause
i. +ule- Circumstantial evidence is permitted hen all other possible sources of the
injury have been reasonably shon to not be the cause&
d& 7arranty- hen you sell something, it comes /some !ind of arranty
i. .mplied arranty- minimum e+pectation as to the use/safety of the product
ii. <+press arranty- hat as e+pressly specified as to the capacity/use of the product
e& Food- Consumer1s e+pectations approach, rather than foreign object vs& natural
3. ;esign ;efects
a& Stan*ar*- ;etermination of alternative design- production cost, effect on
maintenance/aesthetics, range of consumer choice added, ris!/benefit analysis
b& Cam"o v. !#ofield- +ule- .f machine is /o latent defect and its functioning creates
no un!non danger, manufacturer is not liable&
i. +ule- (o re4uirement to arn against obvious dangers $hitting self /hammer,
sa%&
ii. 7/most design defects, the ris! is not patent, so ris! is more dangerous than
e+pectation of ordinary consumer&
c& Vol&s-agon v. 3oung- D !illed hen rear-ended and seat comes loose from car
frame
i. +ule- 5roducts must be designed for their foreseeable uses $car accidents
foreseeable% manufacturers liable for defects in design hich could have been
reasonably foreseen to cause+enhance injuries&
d& Bar&er v. )ull *ngineering- D injured operating for!-lift on non-level ground, falls
out
i. = 5ronged #est- 5roduct design is defective if either-
5roduct failed to perform safely as an ordinary consumer ould e+pect hen
used in an intended/reasonably foreseeable manner
23
#he design pro+imately caused the injury P it can1t be shon that the benefit of
the design outeighs the ris! $risk utility test%
ii. R## too! the =nd pong and made it its rule& K options for products liability- OM=$a%,
=-prongs, R##
e& Subse5uent 3Pro*uct %o*ification4 +ule- usually not admissible evidence unless a
Krd party made the modification or modification directly altered the item that failed
f& )inegar v. %rmour- officer shot under arm, here bullet-proof vest didn1t cover
i. +ule- Consumer e+pectation test- ris! as open and obvious $not absolute defense%;
can1t subject manufacturer to *" for reasonable design esp& hen design chosen by
D&
g& Halliday v. !turn, Ruger- K yr& old shot self in head /father1s gun; father ignored
safety arnings
i. Rule- Bbsent legislative intent, a consumer e+pectation test ill be applied to
normal handguns&
,. 7arning ;efects
a& General/ Turley-
i. Cannot arn aay a defect
ii. ;on1t have to arn every issue
'ut do have to %arn for the J%orst reasonabe person3
<asily intelligible, tailored to target audience
o Bnticipate your audience $i&e& multiple languages%
iii. <+cessively dangerous by nature- can1t be mitigated, must arn though
iv. Foreseeable misuse
9ust alays arn against/ design against foreseeable misuses
o i&e& if foreseeable misuse, don1t use easily removable guard, use immovable;
or printing press hic!ey /o a press guard
v. Bdvertisements- mar!eting is part of the product; may erroneously arn
vi. )uideline for defects arnings-
"atent 7arn
"atent Y Remote 9ay still need to arn
5atent *plit Courts, some yes, some no
b& R## @ P- 3Learne* -nter"e*iary4 +ule-
i. :ealth care providers in a position to reduce ris! should be given ade4uate
instructions
ii. 5atient should be given reasonable instructions if manufacturer !nos/should !no
health care providers ill not be in a position to reduce ris!s of harm&
c& ,Bce'tions-
i. 5harmacists are not in a position of duty to arn&
ii. %a>ority rule- Direct %arning to consumer %arranted %hen-
5hysician has minimal effect of decision process, 0R
5roduct targeted directly to consumer
d& Ma#1onald v. Ortho Pharm- D used the pill, had stro!e, sues for failure of duty to
arn b/c only arned of blood clot, not stro!e
i. +ule- "earned .ntermediary $if egit use of earned intermediar$: manufacturer
cannot be sued for ac& of %arning% applied, '2#
24
ii. +ule- ,Bce'tion- 5rescribed items here patient has a larger role in deciding to use
and doctor has more silent role $i&e& only annual chec!-ups%&
iii. Sub(+ule- F;B regulations are the floor, don1t e+clude you from liability&
iv. Turley- 6Comment 31- (o *" for products of great social value
<+&- polio vaccine
G &uris*ictions-
o 9ajority- my case is li!e a polio vaccine
in loo! at negligence, comment !
lose *"
o 9inority- R##- drug not defective in design if reas& health provider ould
prescribe it for any class of patients, i&e& negligence
*o if AT aren1t harmed, no *"
5roblem- drugs often prescribed for off-label purposes
e& Vasallo v. Ba8ter- D has silicone breast implants, injured
i. +ule- $(egligence *tandard% (o liability for failure to arn about ris!s that are-
(ot reasonably foreseeable at time of sale, /0
(ot discoverable by reasonable testing&
f& Hood v. Ryobi- D ta!es off sa guards despite arnings, injured
i. +ule- B product arning must be reasonable but does not need to arn of every
conceivable injury&
ii. +ule- 'ut, design against/ arn against foreseeable misuse&
g& Dut$ to %arn of dangerous products b$ others- even if your product is safe, if you
!no during natural use ill come into conduct /Krd party1s product to ma!e unsafe ?
duty to mitigate/arn&
h& 1aly v. $eneral Motors ? D drun!, speed, loses control, ejected from car, claims door
loc! defectively designed
i. -ssue- can comparative negligence apply in *" cases>
ii. +ule- $outlier/ minority% Comparative negligence is possible in *" of products
liability&
-. Fe*eral Pre(,"'tion
a& )a"a#es $part of state la, individual by state%
i. Compensatory- for your costs $pain/suffering, loss of or!, direct cost/harm%
ii. 5unitive- if conduct so outrageous, damages to convey social judgment
unbelievably rare, often reduced
*up& Ct&- U- const& limitations on punitive damages $5;%> Jes, fed& violation if
state allos too many 5;; 5; S AM+ compens& damages attract attn& of fed& cts&
iii. Statutory- F;B statutes can sometimes preempt tort cases if tight arning
#raditional approach- statutes create floor, but you can still be held liable
b& $eier v. %meri#an Honda Motor Co&- D ants to sue for no airbags, Fed& la
doesn1t re4uire airbags, but state la forces& *tate la preempted by federal
legislation> Jes&
BI. BI. ) ),F0%0T-O. ,F0%0T-O.
A. )eneral
1. )efinition- communication is defamatory if it tends to harm the reputation of another as
to loer him in the estimation of the community or to deter Krd persons from associating
or dealing /him&
25
a& ;efamation re4uires- $A% falsity; $=% unprivileged communication $publication%; $K%
fault; $O% damages&
2. +ule- Re4uires publication-
a& .ntentional or negligent communication to a Krd person
b& .ntentionally or unreasonably failing to remove defamatory material that he !nos to
e+hibited on his land/chattels
3. +ules-
a& #ruth is an absolute defense&
b& ;oes not apply to deceased individuals&
c& Corporations and businesses can be defamed&
d& "arge groups are generally not able to maintain defamation actions but small groups
may be successful $note 4eiman9Mar#us case%&
e& 0pinion is protected hen based on !non or stated facts $hoever, can be actionable
hen based on undisclosed or personally !non facts%&
i. 5arody and humor are protected as a form of opinion&
ii. il&o- v. (orbes- Forbes publishes article about businessman, ho 6plays
fast/loose1
+ule- 0pinion not defamatory&
+ule- Jou must sho it has harmed your reputation&
iii. %uvil v. CB! $5roduct ;isparagement "ibel%- D sued C'* for segment about a
pesticide used by apple-groers lin!ed by a report to cancer
o +ule- 7here media is clearly reaching an opinion, editorial opinion is
protected&
,. 'oo!/ nespaper/ radio/ television broadcast / single publication&
-. .ntra-corporate communications are often not treated as publications& $variation%
$important defense against defamation; no publication- no defamation%
a& <+ception- .f there is a shoing of actual malice, you can lose the inter-corporate
privilege& $1oe v. $on2aga%
.. Jou are subject to defamation if you repeat/ re-publish a defamation
4. )efa"ation 'er se- certain areas of defamation are patently defamatory-
a& criminal offense
i. Mu2i&o-s&i v. Paramount- movie based on D1s story, adds felonious activities;
defamation per se upheld
b& *#;
c& inability to perform public office duties
d& fornication/adultery
e& ords prejudicing her trade/ profession
=. att v. )ongsdon- $private libel% disparaging comments made about D having an affair
by administrators /in the co&
a& +ule- 0n privileged occasions, may state opinions& #his privilege can be lost by-
i. going beyond the limits of the duty/ ordinary course of or!
ii. shoing of actual malice
>. 5rivilege
a& 0bsolute 'riile#es- judicial proceedings, legislative proceedings, e+ecutive
communications, communications D has consented to, communications bt
husband/ife, communications re4uired by la to be published
26
i. 'ennedy- everything in court is privileged, but hat is stated outside of court can
be defamatory
b& Fair +e'ortin# Priile#e
i. ,a#obson #ase- Ciceroy #obacco Co& sued C'* for libel for a broadcast regarding
the manufacturers supposed targeting of youth in ads& 2sed gvm1t report&
+ule- 5ublication of the defamatory matter is privileged if the report is
summari,ed in fair abridgment
1?. 43 +imes v. !ullivan- elected officials in Blabama accused by (J #imes for
discriminatory practices
a& D, public official prohibited from recovering damages for a defamatory falsehood
related to his official conduct
i. +ule- unless proven that the statement as made /actual malice $Bctual 9alice
*tandard- if spea!er had !noledge of the falsity or rec!less disregard for the
falsity%
ii. :igher defamation standard for public officials
iii. #urley- 7hy> free speech is a chec! on governmental abuse
prevents chilling effect on media; protests ide open debate
public officials have a greater ability to defend themselves
b& Butts #ase- *ullivan e+tended to public figures
11. $ert2- negligence standard, not *", hen suing media
B. *lander v& "ibel
1. Libel- the publication of defamatory matter by ritten or printed ords $or its
embodiment in physical form/ any other formQ%
2. Slan*er- the publication of defamatory matter by spo!en ords, transitory gestures or by
any form of communication other than those stated in *ubsection $A%&
3. Rule- Radio/ #elevision / "ibel
BII. BII. P P+-<0C/ +-<0C/
A. !asic Priacy Torts-
1. .ntrusion 2pon *eclusion
a& )efinition- intrusion upon the solitude of another; +ules- must be non-public and
highly offensive to a reasonable person, does not re4uire publication
b& 4ader #ase- )91s 5.s loo!ing over (ader1s shoulder in ban!
c& 1esni#& #ase- investigative reporting; B'C ent into ;r& ;esnic!1s office
i. +ule- 8ournalists have no special privilege to trespass& 'ut, no violation here b/c
here the journalists ent as open to the public&
d& (ood )ion #ase- alloed damages for trespass but not publication damages
2. 5ublic ;isclosure of <mbarrassing 5rivate Facts
a& )efinition- 5ublicity of a private matter to a Krd person is subject to liability for
invasion of privacy if the matter-
i. ould be highly offensive to a reasonable person, and
ii. is not of legitimate concern to the public&
b& Aubicit$- disclosure to Krd persons so that a private fact becomes public !noledge
c& Bpplies to true facts, not just false factual assertions
d& 9edia defense of nesorthy story
3. False "ight
a& )efinition- one ho gives publicity to a matter concerning another that places the other
before the public in a false light
27
i. must be highly offensive to a reasonable person and
ii. actor had !noledge of or acted in rec!less disregard as to the falsity of the
publici,ed matter/ false light
b& .nfo must be false
c& (o e+ception for matters of legit& public interest
d& +imes v. Hill- shoing of !non falsity or rec!less disregarding re4&
,. Bppropriation of D1s (ame/"i!eness
a& Can be brought by estates of the dead
b& 9any states re4uire shoing that appropriation done for business/ commercial purpose
c& 5u##hini #ase- human cannonball; :eld- AV sec& clip of him on #C did amount to
stolen name/li!eness
28