A Intentional Torts

1 BATTERY (549): infliction of harmful or offensive contact by an actor upon another with the intent to cause such contact
i ISSUE SPOTTER CHECKLIST
i voluntary act req't
ii intention: must have the purpose of inflicting the harmful or offensive conduct (or be subs. certain to result)
a intent needn't be to harm or to offend
b transferred intent possible
iii contact
a direct or indirect
iv harm or offense
a almost no lower limit but if very small, recovery will be very small
b offensive is measured by reasonable person in the circumstances
c you have to intend the contact, not the consequences (eggshell skull)
v Defenses
a consent
b self-defense/defense of another
c protection of property
d immunity
vi Damages (fact/jury)
a compensatory
economic
non-economic (P+S)
b punitive
ii Elements (prima facie case)
a Act: (law)
1 failure to stop a battery is not a battery bc not act
2 voluntary act req't
b Intention to cause a harmful or offensive contact ("almost all the action")
1 Intent
intent to make contact, not that contact be harmful (Wagner, Vosburg)
Wagner v. State (Utah 2005). p. 566. Mentally ill ward of state attacks woman in Wal-Mart. Battery w/o intent to harm. Statutory
immunity. Intent to make a contact.
Legal Issue: Can you have battery without intention to cause harm? yes.
negligence claim, but decision is about battery because of sovereign immunity. Wavied by statute except retained immunity for
assault and battery.
Arguments for D (that it is a battery)
2nd restatement (adopted): don't need to intend to cause harm (argument from authority)
fact issue that he couldn't intend to cause harm does not demand resolution for summary judgment because standard is intent to
cause contact
Arguments for P (to get around sovereign immunity from injuries resulting from assault and battery)
Matheson (572), Utah SCt., so binding, says battery requires an intent to cause harm. Prior decision on exact issue. Argument
from authority.
court says that case was before restatement was expressly adopted, and overrules it.
Federal exemption is from claims of assault and battery, whereas Utah is for injuries resulting from assault and battery. Utah
expands beyond Federal for policy reasons
BZ: case is thin. Not necessarily wrong, but "makeway" argument, so directs to policy argument, which leads to greater cause for
concern.
it's supposed to be about victim's rights, but in context of denying recovery (irony)
real issue is how far immunity goes. statutory interpretation question of what legislature of Utah was trying to do. No reason to think
legislature was trying to bar recovery in this kind of case.
Vosburg v. Putney (Wis. 1891), p. 610, kick at school, intent to unlawful touching (not intent to harm); eggshell skull
trial verdict for P for $2,800. circuit court confirms for $2,500.
Holdings
general intent to kick sustains cause of action (don't need intent to harm)
attention to circumstances (at school, no implied license)
testimony on flawed hypo=material error
damages not limited by foreseeability
Famous because
interesting take on intent in battery: don't have to intend to harm, but do have to intend unlawful touching. Not any kind of touching
(between Wagner and Mathiesen)
if you use offensive instead of unlawfu, would clarify, because trying to define the act
normative claim that the act is offensive (or, here, unlawful) is supported by common law and/or by extant social norms (rightly
decided in this way)
requires fourth premise, not just announcing as unlawful but saying that it's offensive and not to be done. but problems with
offensive in that it uses effects rather than language that refers to act
the extent of D's liability for P's crippling (considering previous condition): "eggshell skull doctrine": take your victim as you find him,
pay for entire injury caused by your act. everything flowing from tort
exception: Spivey. (unwanted hug causes facial paralysis, found to be negligence not battery b/c D didn't know he would or could cause).
 the extent of D's liability for P's crippling (considering previous condition): "eggshell skull doctrine": take your victim as you find him,
pay for entire injury caused by your act. everything flowing from tort
exception: Spivey. (unwanted hug causes facial paralysis, found to be negligence not battery b/c D didn't know he would or could cause).
Cole v. Hibberd (OH 1994), p. 613, Hibberd kicks a friend (Cole) in the back, intent to kick sufficient to find battery (so claim can't be in
negligence and barred by SoL)
woman kicked in the back, charge dismissed on statute of limitations, appeal that the claim is in negligence, not in battery. (holding that
it's a battery, so barred).
funny case because plaintiff, Cole, alleges that it is a fact-bound issue whether it's negligence or battery, based on the circumstances,
and says it's negligence because they're friends with no intent to harm. (bc of SoL problems)
court maintains irrelevance of intent to injure
dissent maintains that it's possible to find negligence under the circumstances, fact q for jury
negligence does not suffice, nor gross negligence, nor recklessness
knowledge does suffice
subjective standard of knowledge
knowledge of some probability not enough (it is in negligence, but not here). must be certain of result.
knowledge as alternative to purpose. sufficient but not necessary
questions on statistical knowledge (whether you must have knowledge of a specific person)
knowing that you'll hit someone with your car even if you'd rather not. Garratt v. Dailey. (kid pulls chair from under aunt, tries to put it
back, liable bc he was substantially certain that her fall would result)
two theories of how knowledge and liability interact
substantial certainty to produce result is legal equivalent of intent OR
knowledge of probable result is evidence of intent
If P unduly sensitive and D knew of hyper-sensitivity and undertook conduct to cause offense. (BZ says not sure if correct)
when does recklessness become knowledge?
some courts: awareness of high probability enough
other courts: awareness of high probability not enough
boundary: if you know of some probability (1/10,000 cars will have defect) and sell 20,000, not battery
Doctrine of transferred intent
same victim, different tort
accountable for unintended consequences of one tort (intent from assault transfers to intent for battery) (Nelson).
if you have everything but intent to touch, you may be able to "plug the gap" with the intent for another intentional tort, and vice versa.
just need intent to invade someone's space
Nelson v. Carroll (558): unintentional nightclub shooting (D intended to pistol whip but accidentally shot). ACCOUNTABLE FOR
UNINTENTIONAL RESULTS of battery. RULE: If you're in the process of doing some kind of battery, you're not exculpated from
unintentional result
same tort, different victim
In re White (VA 1982), p. 621, bankrupt shooter accidentally shoots neighbor instead of arguer. Under doctrine of transferred intent:
liable for battery (in bankruptcy court. debt will discharge unless it's a battery). RULE: "injury is not required to be directed against the
victim," just "wrongful act intentionally done"...w injuries resulting from that act
from things to persons
Rice v. Palladin (586): man bought Palladin book on how to be a hit man and then killed ex-wife and child. Family sued publisher for aiding
and abetting hit (battery). 1st amendment defense thrown out.; also Doe v. Unocal (IEL)
2 Harmful OR offensive contact (viewed objectively) (fact/jury)
Harmful or offensive standard: would a reasonable person find it offensive?
D protected from really unreasonable sensibilities
Harm is not an element. Offensive touching is enough (Holbrook)
Paul vs. Holbrook (p. 553): 2 occasions of unwanted shoulder massages. whether touching is offensive, should go to jury
trial judge granted summary judgment on all claims, appeal upholds on all except battery
would a reasonable person find it offensive?
trial court might have thought no reasonable person would find it offensive
appellate judge doesn't have to rule on this, just says it's enough to go to jury
Wagner states standard.
BALANCES between preserving bodily integrity and recognizing/accomodating realities of physical world
Contact: things directly connected to body included (clothes, something you're holding). Line is between things that are attached to you and
things you own.
doesn't have to be touching outisde the body (drinking poison)
doesn't have to be touching by D (giving the soda)
Leichtman (566): blowing smoke in someone's face (About invasion of the person)
c Caused such a contact
1 unintended consequences covered
2 eggshell skull (Vosburg)
2 ASSAULT (579): intentional threat or attempt to create an apprehension of harmful or offensive contact, coupled with apparent ability to do bodily harm
i ISSUE SPOTTER CHECKLIST
a Voluntary act (not mere words)
b immediate apprehension (on reasonableness standard)
c was there warning? if not, no assault b/c no apprehension
d intent to create apprehension
e act reasonably causes apprehension
ii Elements
a Act:
1 question of focus on belief of plaintiff vs. intent/act of defendant (Vetter, Booker, Raess)
2 not "mere words," (Booker, phone operator, 580, touching not imminent, Raess, Vetter)
meant to absorb 'regular life' stuff and not let that stuff be torts
Vetter, 583, swerving car with threat counts as assault. words sufficient here. evidence enough of each element to go to jury on assault,
and ability to flee does not defeat threats
 ii Elements
a Act:

2 not "mere words," (Booker, phone operator, 580, touching not imminent, Raess, Vetter)
meant to absorb 'regular life' stuff and not let that stuff be torts
Vetter, 583, swerving car with threat counts as assault. words sufficient here. evidence enough of each element to go to jury on assault,
and ability to flee does not defeat threats
threats between vehicles. not clearly imminent. Mostly threatening of words, but swerving of car makes assault. Question of working
together
Procedural posture: summary judgment against P at trial court, so court finding if there is sufficient q of material fact to go to jury
correctly decided?
swerving indicates threat/assault
Gaither swerved, Morgan convicted
question of acting in concert (Morgan's words and Gaither's actions)
swerving is contested
If no swerve, is it a mere words case?
even without swerve, apprehension
distinguish from Brooker by immediacy of fear
at red light in the middle of the night
court doesn't seem to care much about the words, BZ says unclear why
So why not "words alone" problem without swerve?
actual physical proximity and car
could she move? reversible?
words alone about reasonableness of harm. So intimidatingness in context here (3 men)
even if you can repel harm, still can have reasonable apprehensions of harm
courts focuses on belief. 'words alone' doctrine is to reinforce that assault is supposed to be a threatening ACT. Lots of words can give
rise to reasonable apprehension. "Harrowing mindset of being almost physically injured with contact."
BZ thinks swerve is important in context of what he said, threatening behavior, spitting, ultimate harm.
problem: not Morgan's act, it's Gaither's, so court has to find acting in concert
settlement with driver of car for negligence, but not assault, so this "blood money" from Morgan's pocket
Raess (handout) also looks like words alone case, of doctor yelling threat. Guilty of assault anyway
charge: assault and intentional infliction of emotional distress (IIED).
no liability for the latter at trial
$325k from jury for assault
denied jnov
appellate court reversed, saying evidence of other incidents prejudicial to doctor
S.Ct. hears on whether it was appropriate to hear evidence on whether doctor was workplace bully. Court says it's fine, reinstates verdict.
question of whether jury should have been focused on reasonableness of apprehension of physical contact (as opposed to the intentional
threat or intent to create apprehension by P).
if appropriate, affirming trial court is right
are damages right? courts usually take hands-off approach. deferential to jury (but more review recently)
intent to create imminent apprehension
issue for jury, BZ thinks case is weak on whether there's enough to go to jury on this
doctor has to have an intent to cause apprehension.. not an objective test. (by preponderance of evidence)
more pressure on specific intent because inchoate
policy arg that one would expect appellate court to make
HR issue, should be dealt with by employer, and then if they fail, case against employer
treat differently from battery at work b/c HR better at evaluating circumstances (how often people yell at each other, etc.), also bc line of
touching not crossed
ignores words alone doctrine
b Intention to create an apprehension of harmful or offensive contact (by preponderance of evidence)
1 reasonableness standard for immediate apprehension (fact/jury)
c act reasonably causes such an apprehension
3 IIED: Intentional Infliction of Emotional Distress
i 3 elements
a 1. extreme or outrageous conduct (threshold issue of law/judge, but actually of fact/jury)
1 many places: issue of law for court, but for jury in some
2 even when issue for the jury (which it is most places), court still monitors threshold
3 no black letter law that you need a campaign and not just an act, but...
4 high bar (Jones v. Clinton example): most conduct is "merely inappropriate, offensive, and/or careless"
Jones sued in Title VII employment discrimination and an IIED claim
judge granted summary judgment on IIED claim (even if everything she said was true, conduct was not outrageous for purpose of IIED), and
because the effect she alleged fail to meet standard for extreme emotional distress
5 shows courts are deeply concerned with the limits of IIED claims, makes them very stringent
6 used for terrorizing by long-term threats
7 can be for conduct directed at another (as in loss of consortium cases) and also to witnesses (per §46(2))
8 Flynt v. Falwell. (mentioned in class): first amendment can protect IIED Ds when the outraged is politically freighted and a local jury decides
Judgment for Falwell on IIED b/c Campari ad in Hustler inflicted emotional distress.
Flynt appealed on first amendment grounds, and won. First amendment prohibits Ps from using IIED in lampooning of public figures in
media.
Concept that what is outrageous is highly politically freighted, and when you ask a local jury what is outrageous, you are doing the opposite of
sheltering unpopular speakers
9 164 Mulberry St. Corp. v. Columbia, p. 669. Question of outrageousness where prof sent letter falsely claiming food poisoning to NYC
restaurants is for the jury (although the threshold of outrageousness is a matter of law)
Columbia biz school prof sent letters to restaurants alleging food poisoning
 9 164 Mulberry St. Corp. v. Columbia, p. 669. Question of outrageousness where prof sent letter falsely claiming food poisoning to NYC
restaurants is for the jury (although the threshold of outrageousness is a matter of law)
Columbia biz school prof sent letters to restaurants alleging food poisoning
claims for libel, misrepresentation
like Dickens vs. Puryear
courts don't want to recognize any IIED case if there is any case for any other law suit
no essential feature of IIED that requires that it not be some other tort (unlike prima facie tort)
BZ thinks IIED fits better than libel here bc no publication to a third party
courts think tis a catch-all that they don't want tus e unless they have to even if ti's established
D claims behavior was not outrageous
courts are likely to see IIED in sexual harassment as an end-run around sexual harrassment charge
note that underlying charge has a big effect on validity of IIED claim
"the hook" that the guy didn't even go to the human research board, that everyone knows you have to do (wonder if deliberate evasion)
even if not that strong, strong enough to go to jury.
subtle q of tort law: is outrageousness a fact or law question? "falls in between the cracks" (like prox cause)
technically for jury, but not like duty is
courts have recognized that courts themselves should take a strong hand
b 2. intended to cause Plaintiff distress OR is reckless with regard to risk of P's distress
1 Can be threat of future harm; no transferred intent with narrow exception for immediate family present
2 Dickens v. Puryear, NC 1981, p. 650. No summary judgment on IIED claim by man beat up and threatened for sleeping with D's daughter
because threat of future harm is IIED and is not assault
facts and PP
P slept with D's daughter. D took him out away from town, beat him, and threatened him with future harm
D's threats cause injury to nerves and nervous system
P says unable to sleep, afraid to go out, afraid to meet strangers, afraid he may be killed, suffering from chronic diarrhea and a gum
disorder, unable effectively to perform his job, and lost income
1 year SoL for A+B
ct. app.: summary judgment for D. facts only show A+B
Issue: can P recover for IIED resulting from battery when statute of limitations has passed on battery but not on the IIED? (yes)
D's arg: this is an A+B case. Form/substance problem. Should have the same SoL as A+B
P's arg: he has been severely injured with no compensation. special kind of injury that is not captured by assault or battery (b/c he was
terrorized for years to come)
allows for explanation of the delay: want people to wait to see if they can 'get over it'
D's response: all battery claims include outrageous conduct, this is included. every time a P missed the deadline for SoL, he would get
a jury every time
H1: Definition of IIED by court. 3 elements (as above), each with enough evidence to go to jury
H2: States a claim for IIED b/c the threat is for the future (so not assault)
want IIED to be strong enough that it means something but not so broad that it's an end-run around
all of the thing he had to change in his life after the wrong are part of IIED
3 Siliznoff p. 661. Conditional threats of indefinite future harm are not assault, but valid tort claim
c 3. does cause extreme/severe distress
1 severity is part of prima facie case for P: must prove severe emotional distress
ii Damages
a most states allow punitive damages (but IL does not)
b Littlefield v. McGuffey, 7th. Cir. 1992, p. 655. P can keep judgement and atty's fees on IIED in housing discrimination case
1 Facts and PP
P wanted to rent apartment, and was all set until landlord found out that she had a black bf
landlord harassed her, did not rent the apartment to her, made death threat to her bf
P sues for housing discrimination (civil rights), for which she can get attorney's fees
Jury gave $50k in compensatory damages and 100k in punitive damages and atty's fees; D appeals
2 Issues: was the trial court right in admitting evidence of emotional harm; sufficient evidence to support the damage awards; atty's fees
excessive? (P wins on all)
3 Why add IIED to FHA claim?
damage cap on FHA and not on IIED (but no punitive damages in IL on IIED)
introduce evidence that pertains to IIED claim (limits on ev. of emotional damage in FHA claim)
4 TRESPASS TO LAND/CHATTELS: D interfering with P's right of exclusive control over property
i Elements
a D interfering with right of exclusive control over real property/use or possession of chattel (of OWNER/ACTUAL POSSESSOR)
1 trespass to chattels: for other than real property (dividing line at attachment/fxiture)
2 OR if permission or consent expires; failure to remove
3 very minimal interferences are actionable (smoke, gas, etc)
b act must be intentional or close (intend the act, not the trespass) (no reasonable mistake defense)
c unsettled question of actual harm resulting
1 for land, needn't show
2 for trespass to chattel, often need to show harm
ii Burns Philp v. Cavalea, 7th Cir. '98; p. 774. Notice is not an element of trespass, and D can recover damages on its counter-claim in trespass
without having notified P as long as it suffered monetary loss.
a Facts
1 two properties from a divided tract had messed up taxes.
2 Burns Philp mistakenly paid property taxes on land owned by Cavalea
3 Burns Philp sued in restitution
4 Cavalea counterclaimed in trespass for encroaching fence
5 district judge held no damages bc no notice (ignoring that it's strict liability, calling it 'elemental justice')
b Issue: whether lack of notice defeats Cavalea's (in counter-claim) in trespass? (no)
1 Notice is not an element in restatement (consent negates trespass but no consent here)
2 Easterbrook irritated with district judge
c Holding: Cavalea can get damages if it suffered monetary loss
 b Issue: whether lack of notice defeats Cavalea's (in counter-claim) in trespass? (no)

2 Easterbrook irritated with district judge

c Holding: Cavalea can get damages if it suffered monetary loss
d Easterbrook irritated with litigants because they should've settled out of court
1 not efficient, big companies, etc.
2 no assymetry in fault (may be no fault)
e BZ thinks case shows capacity of common law to be suboptimal in encouraging settlement by being less than clear between fault and strict liability
(TM ?????)
iii Damages for all resulting harm, including punitive damages if willful/wanton
a compensatory plus parasitic property damages that occur in consequence of the essential trespass
b for trespass to chattels, compensation
c Jacques shows punitive damages when no compensatory damages b/c willful and wanton (of driving across land with mobile home in snow after
denied permission, p. 779)
5 CONVERSION: about chattels, not land. interference with right of exclusive possession in property.
i keep the thing, exercise dominion (stealing)
ii has to be intentional, not accidental (but does not require malice, etc) (i think this is wrong, it's a strict liability)
iii Thyroff v. Nationwide Mutual Insurance, NY 2007, p. 791. Conversion lies for electronic records, needn't be tangible
a insurance agent gets computers from company, who retain data when he gets fired
b agent claims conversion. company claims its only for tangible property
c district court dismissed for failure to state a claim
d Issue: is the claim for the conversion of electronic data cognizable under New York law? (yes)
e uses merger doctrine for stocks, etc
f court says not necessary to have tangible. some data in this fact pattern is such a thing that is allowed
g conversion spreads to electronic data
iv Defenses
a consent is a defense (see Copeland)
b NOT reasonable mistake
6 NUISANCE: Ongoing and unreasonable interference with another's right to use and enjoy real property
i Ongoing and unreasonable interference with another's right to use and enjoy real property
a doesn't matter who was there first (no categorical bar for D having been there first)
b doesn't matter if D was unreasonable, only if its unreasonable to ask P to put up with the disturbance
c Sturges v. Bridgeman, p. 803. Injunction against confectioner for nuisance to a doctor. even though confectioner was there first, nuisance is a
product of circumstances.
ii injunction is most common remedy
a general rule is D has right to injunction unless would subject D to way too much hardship (outlier test)
b Penland v. Redwood Sanitary Sewer Service District, 1998, p. 812. Sewage treatment is a public nuisance (based on substantial and
unreasonable interference with ordinary reasonable person's use and enjoyment of property) and is enjoined
1 D operates sewage facility, basically composting sewage, which stinks and makes neighborhood unlivable
2 trial court finds that it is a nuisance and grants an injunction
3 2 Issues: Does the composting constitute a nuisance? (yes) and should it be enjoined? (yes)
4 regulatory compliance does not provide a defense
5 Injunction for nuisance unless hardship caused to D would greatly outweigh the benefit resulting to P
6 Although relocating (or other alternative fixes) are expensive, equities favor injunction
not clear that expense is more than the cost to Ps
Ds spent after they knew of complaints
as a public utility, they can spread costs
c Boomer v. Atlantic Cement Co., p. 819. Injunction against cement company unless permanent damages paid to neighbors (licenses continuing
wrong)
1 cement company with huge investment was nuisance to neighbors
2 trial court gave damages for injuries but not injunction
3 I: what kind of remedy do you get?
4 Holding: injunction conditioned on payment of permanent damages (so company can pay off neighbors at relatively low cost)
5 Dissent: this is licensing a continuing wrong. Should enjoin after 18-month respite to improve practices
6 yes, nuisance, but no injunction (utilitarian justification)
iii extra defense: zoning ordinances for nuisance
iv Coase, Calabresi: question of legal structure for allocation (coase theorem: q is deeper than which activity is more efficient)
v trespass and nuisance
a similarities
1 both property torts
2 p can't sue unless P has property interest in both
3 neither requires proof of physical damage
4 neither requires intention to interfere
5 neither requires that D's conduct was unreasonable
b differences
1 nuisance- invasion of right doesn't need to be a boundary crossing in the way it does in trespass. way of interfering with someone's rights in
land by interfering too much with their use and enjoyment of the land
2 nuisance- continuing
3 nuisance- unreasonably interfering
4 trespass- any amount of interference
7 DEFENSES (587)
i Consent: Express and Implied
a Standard: D must actually and reasonably belief, based on P's conduct, that he has consented (subjective and objective)
b Not if fraud or coercion. Failure to disclose can be fraud. Must be knowingly and voluntarily given.
c consent can be void for public policy reasons
7 DEFENSES (587)
i Consent: Express and Implied

b Not if fraud or coercion. Failure to disclose can be fraud. Must be knowingly and voluntarily given.
c consent can be void for public policy reasons
d Scope: whether contact was the sort that the P consented to (q for jury). Can be geographically or temporally or spatially restricted
1 Mohr v. Williams (598): surgery on other ear than consented, won on battery.
2 Copeland v. Hubbard Broadcasting, p. 799. Consent to enter home for vet to treat cat did not extend to videotaping for news broadcast
Facts and PP
vet went to home of client (P) with assistant to treat cat
assistant was secretly videotaping and secretly working for tv station
report was broadcast including footage in Ps house
trial court granted summary judgment on trespass claim
Holding: reverse summary judgment on trespass because consent to enter home was restricted and did not include videotaping for tv
3 Koffman v. Garnett (VA 2003), p. 588: middle school football, must allege no consent as a matter of law
whether Koffman consented was a matter of fact
court: Koffman can only consent to reasonably foreseeable things
If there was consent, it should really be a negligence claim. Consent because
"no moving target" for consent, once you consent, to everything required
level of specificity of consent was broad, so no claim for battery
policy decision for how carefully to scrutinize consent forms under 12b6 motions.
would have to be gross negligence, because schools have immunity for regular negligence. P here could definitely prove regular
negligence, but maybe also gross negligence
harmfulness is key, so hard to go forward on just offensive touching
defenses
consent
assumed/implied assumption of risk (doesn't quite fit here)
so then have to show gross negligence, you have to have greater risk than assumed
e Implied Consent (Wagner): the consent implied by the situation; esp. for inherently dangerous activities
use history of parties
used situation
ii Self-Defense or Defense of Another ("awkward fit" problem of balancing tort law's intent to protect bodies against its intent to have legal rather
than private redress)
a D must actually and reasonably believe force is necessary to injure another to avoid imminent injuries to self (in light of circumstances)
b reasonable mistake of fact doesn't exonerate (although cases including Mullens come out the opposite way)
1 false but reasonable belief that P consented serves as defense in such cases
c often not if D precipitates situation
d must be proportional (deadly force has conditions)
1 deadly force only justified when actually and reasonably perceives that he is being threatened with death or SBI
safe retreat req't for deadly force (not in dwelling)
deadly force for attack in dwelling
2 Haeussler v. DeLoretto (Cal. App. 1952), p. 599. Neighbors arguing about dog. Necessity of force and amount of force are questions for
fact-finder.
e Retreat: courts split on duty to retreat, but second restatement says non-deadly force is ok, but deadly force not, in lieu of retreating
f no defensive use of another (shield)
iii Protection of Property (shows limitations of self-help)
a for momentary but not long-term possession (to encourage legal redress rather than self-help). 'recapture,' not against peacable possession
b no mistaken belief allowed
c requires warning
d Katko v. Briney (Iowa, '71) p. 603, abandoned farmhouse with springloaded shotgun. NO DEADLY FORCE TO PROTECT PROPERTY
1 P, burglar, breaks in, gets shot, spends 40 days in hospital, sues for battery, gets $20k in compensatory (incl. pain and suffering) and $10k in
punitive damages.
2 Defense failed because D used too much force in curciumstances where it was not allowed (not in face of deadly force or proportional threat)
dependent on definition of threat as losing old bottles or protecting home
fundamental problems even if defending home theory
no warning signs (exceeds privilege)
in bedroom, not front door
covered bedroom window to make sure ppl didn't know
never lived there
both of the above and others are fundamental weaknesses in fact pattern to show intent to protect rather than vindictive impulse
3 Dissent: can't tolerate punitive damages, but P didn't bring up damages, so not preserved for appeal
thinks wrong on compensatory damages, too.
D exceeded his privilege, but we should remand for new jury instruction to make finding on intent to injure (P says he only intended to scare
4 So what should Briney have done?
had something posted
had an alarm? This costs $. People's right to be free of this kind of invasion includes the right to self-help?
hypo of dog at a scrap-yard trained to kill
iv Privileges: others, depending on jurisdiction (privileges)
a police brutality cases are battery cases where you have to argue that privilege has been exceeded
v Necessity: only a defense to TRESPASS. limited necessity privilege to do what's reasonable, but must pay back (Vincent)
a Prosser, etc.: there is a privilege, but it's an incomplete privilege (allowed to do it but have to pay for damage)
b another take: just a trespass, no privilege. can be reasonable to do something that there's no legal privilege to do. shows that trespass doesn't
involve faulty conduct in a moral sense
c Vincent v. Lake Erie, p. 784. Docking ship in storm (and causing damage to dock) was reasonable under circumstances, but still produces
liability because deliberate action caused damage.
1 Ship docked during storm to unload cargo. weather too bad to move; ropes changed; $500 damage to dock
 v Necessity: only a defense to TRESPASS. limited necessity privilege to do what's reasonable, but must pay back (Vincent)

c Vincent v. Lake Erie, p. 784. Docking ship in storm (and causing damage to dock) was reasonable under circumstances, but still produces
liability because deliberate action caused damage.
1 Ship docked during storm to unload cargo. weather too bad to move; ropes changed; $500 damage to dock
2 D: necessity argument, comparative damage argument, reasonable thing to do under circs argument
consent only as long as time to unload (so stays past contract)
D intentionally shifted risk of injury to P by overt acts (explains focus on changing ropes)
3 so no wrong, but liability (question of theme of torts being about wrongs?)
4 in brown v. kendall, mere causing of damage isn't sufficient to generate liabitlity
vi Immunities: (sovereign, family, charitable)
vii All Civil Litigation
a personal jurisdiction
b venue
c state a claim
d res judicata
e statute of limitations
8 DAMAGES (fact/jury)
i Compensatory
a economic (costs, lost wages, medical, property damage, past and future income, etc)
1 EVERYTHING flowing from tort (Vosburg), not limited by foreseeability
b non-economic (pain and suffering)
1 Cecarelli v. Maher (CT, 1943), p.552: assault and battery in New Haven
compensation for costs ($315) plus pain and suffering and permanent injury ($2k)
compensatory damages for a non-economic cost, recognizes inadequacy of pecuniary damages. Not punitive but similar.
He's already been punished criminally, so why is this permissible?
SCOTUS says double jeapoardy does not aply to punitive damages
is there something between punishment and compensation that allows the imposition of this?
about victim's right to be compensated, not state's need to inflict punishment for wrongdoing
Court looks to be measuring lost wages. Would he have gotten less if he hadn't had a job? Fair to give less to poor people than rich people?
(9/11 compensation fund). Measures where you would have been without wrongful action.
ii Punitive (for malicious or willful wrong, or reckless disregard for P's well-being)
B Negligence
ISSUE SPOTTER CHECKLIST
i Duty
a what type of harm?
1 physical
affirmative course of conduct by D
direct cause of physical harm to P
privity issue?
duty to rescue?
2 non-physical
economic? (special relationship)
emotional?
zone of danger?
physical impact?
bystander?
b moral vs. legal
c foreseeability of risk
d special relationship? (Tarasoff factors)
e if landowner, invitee, licensee, or trespasser?
ii Breach
a foreseeability
b warning for special precautions/notice
c custom (always relevant, never dispositive) (TJ Hooper)
d legality and preemption
e feasible precautions not taken
f res ipsa? must be more likely than not that:
1 event ordinarily does not occur in the absence of negligence
2 instrumentality of harm exclusively in D's control
3 not due to voluntary action on part of P
g Hand formula
h for ordinary care, talk about reasonably prudent person and about delivering standard to jury to think about reasonably prudent person under the
circumstances
i negligence per se: must conform to the four factors (type of person, type of harm, type of relationship, , type of injury)
iii Causation
iv Injury
v Defenses
a implied assumption of risk
b express assumption of risk
c comparative negligence
d sovereign immunity
e statutory immunity
f family immunity
g charitable immunity
 v Defenses

f family immunity
g charitable immunity
h preemption
Elements
Duty (issue of law)
Physical Harm
1 general rule that there is a duty when there is affirmative conduct by D that is the direct cause of physical harm to P when harm is
foreseeable, with some exceptions.
affirmative course of conduct by D
direct cause of physical harm to P
Even with physical injuries caused by active conduct of D, sometimes still no duty (found by court, not jury) if not foreseeable
Privity (policy: floodgates): originally, no duty without privity, with small exception for "thing of danger"; Since MacPherson, presumption of no
privity req't, just foreseeability
Winterbottom v. Wright(1842), p. 55: the privity rule. coaches for postmaster general with broken wheel only enforceable by postmaster
general, not injured employee. Duty limited to contracting parties. initially limited products liability
Thomas v. Winchester (1852) p. 57: mislabeled poison is "imminently dangerous," small exception to privity rule
natural and inevitable damage to public upon breach of duty
imminent danger to human life
nature of business and risks incident to its mismanagement
Loop v. Litchfield (1870) p. 58: machine with patched wheel, followed privity rule
Losee v. Clute (1873) p. 58: steam boiler mfcturer had no duty of care to lessee user
Devlin v. Smith (1882) p. 59: painter's scaffolding kills guy, constructor liable bc imminently dangerous product
Heaven v. Pender (1883) p. 53: duty to use ordinary care even without contract in situations that demand it, with reasonably foreseeable
harm
Torgesen v. Schultz (1908), p. 59, aerated water is also inherently dangerous instrument (based on Winchester)
MacPherson v. Buick (NY 1916), p. 59. (Cardozo). Buick owes duty beyond retailer for exploding wheel b/c foreseeably dangerous.
Shatters privity rule as principal rule with "dangerous thing" exception
Cardozo adopts Winchester rule over Winterbottom rule, expands it beyond inherently dangerous things
overrules Winterbottom and places obligation from law, not from contract
Why would privity (k arg) defeat tort claim?
must have duty for negligence
duty coming from contract, but doesn't run to claimant
if that's the only duty, Buick wins
Buick can back this up with Winterbottom (RULE: no cause of action in negligence when wheel collapses on vehicle and no
privity between P and D.)
no legally cognizable right not to be harmed by negligent conduct of D without contract.
in Winchester, small exception to privity rule. Inherently dangerous or imminently dangerous takes you out of privity rule ("thing
of danger rule"). But case acknowledges and agrees with Winterbottom.
Cardozo keeps thing of danger doctrine, but says not cars in general but as in the case here. As long as a thing can become
dangerous. not just things created to be dangerous like poison. but still limited by probable and reasonably certain (limit gone in
today's law, which is closer to foreseeability). Limits:
reasonably certain
knowledge that danger will be shared (harmonizes Losee v. Clute)
not too remote
reasonable belief nobody else checking besides you
only finished products
limits are for compromise and to make change look incremental (but did eliminate privity rule by and large)
cites Heaven on right to sue in negligence extending to persons for whose use the thing is supplied
responsibility is to class of invited users, whether determinate or not
Question of whether this case constitutes an alteration in the law
Posner: well-crafted opinion that manipulates precedent, to adapt to industrial revolution. changes unfair rule by dressing it up.
(great example of judicial craftsmanship but also duplicity)
Torgeson and Devlin are already on books and fit this opinion (not inherently dangerous things). And Statler (coffee urn)
Dissent (Bartlett)
thing of danger
carriage analysis of Winterbottom holds and CL proceeds through analogy
privity
Strauss v. Belle Realty (NY 1985), p. 453. Limits liability of landlord after massive NYC blackout based on 'contractual relationship' to
limit liability (floodgates)
dissent: burden on D to show necessity of limiting
shows NY Ct. App. willing to resurrect privity in what seems like a misfeasance case
reaches a pretty strong no duty rule with significant fear of floodgates problem
Mussavind v. David (OH 1989), p. 67: STD from affair to husband, husband sues, court allows negligence claim to proceed b/c
reasonably foreseeable
Issue: Did David have duty of care to Mussavind? yes.
duty to prevent spread: to use reasonable care to avoid infecting others
definitely to partner
ISSUE: to spouse?
duty is a question of law (for court to decide) and non-formulaic, policy-based, considering
history
morals
justice
convention
social justice
standard: ordinarily reasonable and prudent person
 duty is a question of law (for court to decide) and non-formulaic, policy-based, considering

social justice
standard: ordinarily reasonable and prudent person
duty to abstain or warn (extends to P if foreseeable that he would be injured)
foreseeable that spouse would be injured
limited: if wife knew or should have known
floodgates problem? this person (P) is very foreseeable, but does this limit?
duties are generally about doing something . use care to others not to cause foreseeable injury (Heaven)
2 Nonfeasance. Generally no affirmative duty to act (to rescue or protect):
liberty-based objections to generalized duty to rescue
Failure to use reasonable care for P's benefit: no duty. Threshold of prevention of care.
Childs v. Desormeaux 2006 CarswellOnt 2710 (handout). No duty for social hosts whose alcoholic guest got in a car accident, severely
injuring P.
Ds had BYOB new years party, invited alcoholic friend who they knew had had problems. man leaves, has terrible crash. Childs has to
use wheelchair forever
Childs sues driver and hosts of party. hosts say no duty
court: no liability because nonfeasance case without affirmative duty (BZ agrees). don't want tort law to be too intrusive
NO DUTY unless
bar (covered by statute). DRAM shop acts to make liability for commercial establishment
for social host, if drinker is minor or underage
here, legal drinking by competent adult
in the US: a few courts recognize such a duty (like NJ) under common law (but in all such jurisdictions, legislatures overruled the
courts)
No general duty to rescue unless: D caused risk/danger/injury; Special Relationship; or Voluntary Undertaking to Rescue
caused risk/danger/injury (Osterlind)
Osterlind v. Hill (MA 1928), p. 76. D leased canoe to drunk people and ignored calls for help. NO DUTY so no liability found.
Court finds moral but no legal duty
"kinds of questions" BZ says to ask in cases like this
1. True that there is no legal duty to rescue? (question about how the law looks)
2. Is there a moral duty to rescue?
3. Is moral duty sufficient ground for legal duty?
today's negligence law would impose duty here bc of special relationship
contractual arrangement and fact that Hill owns boat and makes money off of it
if you create a risky situation (perilous for P) negligently or non-negligently, then you owe non-contractual duty
might not go in non-feasance at all, but affirmative action in creating the risk. Not obvious that Hill did not create injury
Voluntary Undertaking to rescue (reas. duty to use care). good samaritan immunities
Van Horn (supp.): woman who pulled her friend from burning car: not "emergency medical care," which is immunized under good
samaritan statute, so liable for friend's paraplegia.
court accepts emergency medical care is different from "emergency care" and says this isn't covered, imposes liability
"addressing complex of motivations of how we want people to respond to emergency situations"
Special Relationship (Tarasoff, Baker), §314A
Duty found, based on Factors (Tarasoff Factors)
foreseeability of harm to P
degree of certainty that P suffered injury
closeness of connection between D's conduct and injury suffered
moral blame attached to D's conduct
policy of preventing future harm
extent of the burden to the defendant
consequences to the community of imposing a duty to exercise care with resulting liability for breach ("floodgates factor")
availability, cost, and prevalence of insurance for the risk involved
Baker v. Fenneman (taco bell) (IN 2003), p. 77. Customer falls in taco bell. Duty to care for invitee even if not the cause of the injury.
Issue: duty to assist customer who falls? (yes). 3 factors (STANDARD):
relationship between parties (§314A)
special obligation to help/rescue invitee
(unlimited) duty to rescue invitee in peril
reasonable foreseeability of harm
public policy concerns
storeowner derives economic benefit
PP: trial court: no duty. now: duty but question of material fact on whether employee offered assistance. (Also, if call would've
made no difference,then no caused injury)
D argues: not the instrumentality of initial injury so no duty as a matter of law
also that not trained to handle
if duty imposed, so much liability as to put P out of business
P argues: special relationship for business invitees §314A
Tarasoff v. The Regents of the University of California (CA 1976), p. 119: Parents of girl killed sue psychiatrist, psychologist, police,
and employer for negligence (on special relationship between patient and doctors). Relationship between patient and doctors is
enough for victim to establish a duty and to go to court on breach of duty.
Parties' args
P's Arg: Negligence alleged to have caused the harm:
failure to commit
failure to warn victim
D's Arg: no duty of care
Nonfeasance case, with default rule of no duty. Exception is for special relationship, which is usually with victim (always was,
prior to this, in CA, although other states had some exceptions)
Question of case: is special relationship with assailant enough for duty?
special relationship names the kind of relationship in which a court finds a reason to impose a duty of care (so works differently in
different contexts, like accountant, lawyer, babysitter, etc))
 Question of case: is special relationship with assailant enough for duty?
special relationship names the kind of relationship in which a court finds a reason to impose a duty of care (so works differently in
different contexts, like accountant, lawyer, babysitter, etc))
injury-inflicting
affirmative duty to protect against injury to third party
when psychs knew or should have known an identifiable victim (rule in some jurisdictions)
if psych knows of a danger, duty to inform public/confine person (other jurisds)
Arguments that there shouldn't be a duty
makes psych 'babysitter' for person he's never met?
how many people could he have to warn? what if patient threatens to blow up a neighborhood and the duty is not discharged
by going to the police?
Methods for deciding whether to recognize duty (how should court decide)?
not clear what method they used here
on its face, same method as in Rowland
seems like: forget lines of authority on Common Law duty and just say nothing extra besides unreasonable action, causation,
and harm
(deciding if they want a cause of action in certain kinds of situations, and then marking duty or no duty)
p. 111: general duty of ordinary care from everyone to everyone else, with exceptions as justified by factors (Tarasoff factors):
Major Legal Realist stance of case: Legal duty is just a label, constructive, a policy issue that courts get to decide and then make a
policy decision thereby (p. 122)
Practical Concerns
greater danger for society if people can't trust their shrinks, are deterred from going, etc. (dissent argues this but we still lack
evidence)
psychs can't predict behavior that well
worries about violations of privacy/confidentiality
in part an issue because of strictness of CA's privacy requirements (from dinstitutionalization movements in 60s, 70s, 80s)
cynical reading: risks of deinstitutionalization and higher standards of commitment while keeping hostility to psychiatrists (but
not police, who are not liable)
Did Dr. do everything he should do? (assuming there was a duty, was there a breach?)
confined and contacted police
case has bizarre result, because even if there was a duty, it wasn't breached
vs. Rowland (eliminates categories for landowner liability); vs. MacPherson (eliminates privity)
similarities to Rowland
similar language
simlar decision
open about policy reasons
Maybe Tarasoff more like MacPherson, very different from Rowland
given the picture of degree of danger they perceived, they were situated to save the woman and society depends on them to
act on it
trying to build on resources already in common law and push law in new way with what's already there
More of a common law/jurisprudential approach than Rowland, but with similarly progressive ideas
3 Landowner Liability/Premises Liability (dangerous condition, not dangerous activity) (for tenant, possessor, landowner)
Using 3 (interstitial) categories, liability turns on status of P, even though it's arguable whether the status of P has any relation to justifications
in tort compensation/liability)
invitee (highest status, most liability). duty of ordinary care
there for business purposes, mutual advantage
people invited with the expectation of benefit, and come with expectation of benefit
even in jurisdictions that have retained the tripartite distinction, might be more open-minded with regard to who is an invitee
once it's open to public, and people are there with permission
churches, not-for-profits, etc.
reliance by invitees on it being a place where they will be safe
families and regular guests of a tenant are generally invitees
licensee (and trap rule). willful or wanton or trap rule
there with permission, no business (having a friend over)
Trap Rule: willful or wanton OR if there are dangerous things that possessor knows or should know, and wouldn't be obvious to a
person of ordinary care, duty to warn.
has to be gap between D's knowledge and P's knowledge (or what D should have known)
trespasser (lowest status). no duty of care (willful or wanton injury)
intentionally enter and it is, in fact, property over which someone else has exclusive control. can be without fault/knowledge
become a trespasser if you go where you're not supposed to be within a place that you're an invitee
at Common Law, almost no duty of care to trespasser (no right to recover from landowner whose dangerous property you had no right
to enter). Historical rule that you had no right to sue b/c you're there against right
incentivizes non-landowners to be vigilant
blame argument (P's fault that he was there. P was 'bad' for trespassing). Even with absence of intent or 'badness' (as potentially true
in Leffler), still on land without right, counts against being able to recover (relevant that you're outside your rights to ability to extract
damage reward)
no reason to force possessor to provide compensation (no good reason argument)
commensurate with idea of comparative or contributory negligence, which used to completely bar recovery (P's fault is part of chain
of events). Comparative negligence still exists
argument that duty of care is not owed to trespasser survives the end of these categories (exceptions involving kids: attractive
nuisance)
Leffler v. Sharp (Miss. 2005), p. 88: Leffler fell off roof of Quarter Inn (out smoking), was a trespasser, no duty breached
Three-Pronged Test
classify person
invitee
licensee (permission)
 Leffler v. Sharp (Miss. 2005), p. 88: Leffler fell off roof of Quarter Inn (out smoking), was a trespasser, no duty breached
Three-Pronged Test
classify person
invitee
licensee (permission)
trespasser
determine what duty pertains
for trespasser: refrain from willfully or wantonly injuring the tresspasser
determine if duty breached
P would want to articulate a cause of action without regard to duty. Would say D should have
repaired the roof (lease didn't cover roof)
barred the windows (either of them)
warned, with better signs
gotten the people already outside to come in
P: even if I'm a trespasser, no summary judgment because issue of fact (duty is an issue of law): whether permitting people to go on
roof that you know is in bad repair is wanton (extreme recklessness). court rejects this argument (BZ thinks correctly). too strong to
describe actions here. Leffler probably didn't know he was a trespasser.
If he were a trespasser, benefits in still being allowed to sue:
deter activity that makes people think they can go somewhere they're not supposed to
make landowners have safer places
Not an invitee b/c going on the roof was trespassing, so lower court correctly granted summary judgment. D supposedly carries
burden of establishing duty, but seems like P did here
BUT window should've been barred. Quarter Inn was negligent. They thought through the issue, realized it was a problem, made a
plan to weld bars to the window, but didn't follow through. BZ says this is negligence
Free and Quarter don't lease roof. Removes argument that they should have fixed roof. Real negligence is failure to bar window
(different theory of the case). Letting invitees do dangerous thing. Obligation to invitees stands. "Attractive nuisance for drunk
people."
Rowland v. Christian (Cal '68), p. 110. Licensee badly hurt on broken faucet. Court strikes tripartite distinction and makes general duty of
reasonable care. Eliminates doctrinal categories in favor of spreading liability. (BZ wants to make us sympathetic to Rowland court even
though it's his 'mission' to defeat it).
Holding: D was negligent, and life and limb worth just as much in houseguests as in business guests. Proper test is reasonable in view of
probability of injury to others.
allows recovery in this case
court doesn't want to keep operating highly nuanced concepts and think that the whole way of thinking is wrong
Cites statute §1714 (p. 111) and legislative supremacy
usually, common law fleshes out statute (BZ says this arg is a lot of bluster bc statute is articulation of basic principle and values,
doesn't do any real work)
uses to bolster its position bc it's doing something unusual
Get rid of categories because:
statutory argument
argument of principle (p. 114), "man's life or limb..." status of the three categories shoudln't determine whether a person should be
able to recover
considerations relevant to taxonomy of categories have no plausible connection to values underlying compensation for harm to life
and limb
Is the question of the value of life and limb the right initial question? one could argue that tort law cares about blameworthiness of D
rather than value of life and limb of P. Less blameworthy based on level of care due
no reason to cut through categorically, just send it to jury
latches on to idea that part of the purpose of tort law is to be a system for compensation for people with serious physical injuries,
which doesn't vary with reaoson for being on the land ("peculiar assumption that that's what tort law's about")
Counterarguments, in favor of categorical rule
people should have the liberty to make decisions about their premises, what they owe others given the type of thing they're doing
(this cuts both ways)
carve out various kinds of spaces for different levels of relationships. Allow different for houseguests and customers (don't foster
litigation among friends; costs to 1-size-fits-all level of requirement/care)
practical considerations (court management; how much insurance ppl need to carry)
Common Law has latched on to social norms about duties of care which get at peoples' expectations
Dissent: To promote reasonably stable, predictable rules. To be the floodgates
majority is upsetting expectations (has authority to change law, but has duty to predictability because of its high costs to actors in the
system)
problem of judicial activism? Dissent accuses majority
says nobody ever thought that statute governed before
language is too bland to be self-executing, so law only comes from interpreting
reexamine text closely for restriction
BZ thinks court wanted to overturn the system. P could have argued that even though he's a licensee, failure to warn of dangerous
condition that D knew of falls under trap rule
4 5 Big Issues on duty and legal realism (Rowland Court vs. MacPherson (Cardozo))
Rowland Court shows unusual degree of willingness to alter landscape in this area: "activist"
Cardozo could be seen as doing a similar thing, or just as getting rid of privity rule but following duty
Duty element in negligence law is makeway, non-essential to understanding the wrong, doesn't do any work
Cardozo: uses duty element to recognize claim between Buick and MacPherson. Says negligence law is about failing to take care
Structure of negligence law: 3 elements not 4 (carelessness, causation, and injury)
Cardozo: toward someone you have obligation to take care for
Nature of Tort Law and Liability and its purposes: injured person entitled to have injury's causer pay. It's a cost-shifting mechanism with fault
as its basic principle (using 7 'tarasoff factors' on measuring countervailing interests that can defeat)
Cardozo: tort liability not about shifting losses, about one whose right has been invaded, like battery law
Picture of nature of law and adjudication (legal realist view)
court doesn't think it makes sense to believe that words/concepts have any particular content besides those the lawyers argue (ie duty,
etc)
Myth that law constrains what you can decide in a case
alternative: judges are just people, courts are just political institutions, just make judgment calls about reasonably sensible rules to make
blameworthy actors liable
 Picture of nature of law and adjudication (legal realist view)

Myth that law constrains what you can decide in a case

alternative: judges are just people, courts are just political institutions, just make judgment calls about reasonably sensible rules to make
blameworthy actors liable
Cardozo: we don't want our judges to be philosopher kings/making up moral philosophy, but DO want them to push forward language and
concepts already there (or change it but seem to defer to it?)
Distrust of normatively tinged language
special contempt for word duty as epitome of bullshit
bad faith exercise in rationalizing the limitation of liability
Non-Physical Harm
1 Pure Economic Harm: General rule of no duty to take care to avoid causing others pure economic harm
Caveats: must be pure economic harm; must be negligently (not intentionally) caused (intentional wrongdoing with pure economic harm is
actionable, but not in negligence)
Exceptions: special relationship, then have duty to care for pure economic well-being
Accountants: Ultramares Corp. v. Touche (p. 108) foundational accountant liability, when acct failed and creditors suffered and acct
knew of creditors and their use for the info, they were liable
Lawyers (sometimes even non-clients, like beneficiary of will)
Aikens v. Debow (WV 2000) p. 97. Econo-Lodge operator sues truck driver who broke the access ramp by which customers would access
motel for lost profit. No recovery b/c no physical injury and no special relationship
Circuit Court requested certification on: no physical damage but econ can maintain negligent injury action for pure econ loss? (no)
Duty factors
foreseeability of risk
remoteness
identifiability
probability of damage
special relationship
policy
injury
burden
consequences
"scope of the risk which negligent conduct foreseeably entails" (100)
Court is worried about restricting over-expansion of duty as a matter of policy, even though lodge owner got screwed. Floodgates issue.
2 NIED: Emotional Harm: General rule of no duty with two exceptions
Caveats
Caveat: there are categories of damages you can get if you have a predicate injury ("parasitic")
Caveat: if D was acting intentionally to bring about emotional harm
Caveat (possible third): physical harm, as in Robb, with no physical injury
Exceptions/ 3 types of rules limiting/allowing recovery in NIED
[Special Relationship with obligation to be vigilant of another person's well being (morticians, psychiatrists)]. Most states don't articulate
the special relationship doctrine, even though it exists.
Lauer v. City of New York 95 NY2d 95, '00 (handout). medical examiner did not have any special duty to parents not to negligently
inflict emotional distress b/c acting in ministerial duty
BZ doesn't like the way the case comes out
majority said NIED case could move forward if four claims met (factors show special reliance/relationship). said factors not met
(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was
injured;
(2) knowledge on the part of the municipality's agents that inaction could lead to harm;
(3) some form of direct contact between the municipality's agents and the injured party; and
(4) that party's justifiable reliance on the municipality's affirmative undertaking.
Dissent (Smith) says requirements are met
Dissent (Bellacosa) says obviously there's a duty because the examiner created the peril, thus has duty to correct
BZ thinks similar to libel claim bc most of the damage is reputational
moral question of what the guy should've done. (formalism, how formalistic should we be, how intertwine legal and moral)
old-fashioned rule: impact rule. no recovery unless physical impact (minority rule)
ambiguous between 3 ideas: parasitic damages on physical injury ; vs. no recovery unless causal connection mediated by actual
physical touch (touch as limit/physical proof); or physical manifestation of emotional harm
Wyman v. Leavitt, (1880) p. 700. No recovery for negligently doing construction near P's house which caused woman emotional
distress about harm to her safety and her child's safety. No NIED action b/c floodgates.
bystander/family members (Dillon v. Legg; Thing v. La Chusa)
No duty argument frequently fails for secondary actors in accidents who witness harm to loved ones. CA has stretched and said she
doesn't need to be in zone of physical danger
Criteria:
family member
whether it's witnessed
whether the person is in the vicinity
whether its contemporaneous
if contemporaneous, witnessed, and family memeber, then definitely foreseeable
Dillon v. Legg, Cal. 1968, p. 734. Mom can recover for watching daughter get hit by a car, even though outside the zone of danger,
because harm to her is foreseeable
kid is hit by a car, sister is with her and almost hit, mom watches but is outside the zone of danger
CA has zone of danger rule. so sisters can recover (one hit and one not hit) and mom can't recover (under Amaya)
CA supreme court (had already done Rowland, Tarasoff, limiting negligence law based on idea of no universal duty) says they don't
believe in duty. what matters is foreseeability. duty is a policy shorthand
in running down a kid, nothing more foreseeable than devastation to witnessing family member, whether or not they're in the
zone of danger
no reason not to say there's a duty. as long as there's foreseeability, there is a duty.
Holding: as long as foreseeable and low risk of fraud, then can recover. (RULE)
 CA supreme court (had already done Rowland, Tarasoff, limiting negligence law based on idea of no universal duty) says they don't
believe in duty. what matters is foreseeability. duty is a policy shorthand

no reason not to say there's a duty. as long as there's foreseeability, there is a duty.
Holding: as long as foreseeable and low risk of fraud, then can recover. (RULE)
in a case that involves emotional harm, criteria for foreseeability
family member
whether it's witnessed
whether the person is in the vicinity
whether its contemporaneous
if contemporaneous, witnessed, and family memeber, then definitely foreseeable
Thing v. La Chusa, Cal. '89, p. 741. Explicitly limits Dillon recovery to close family members who are present at the time of the injury
and witness (rather than Dillon's 'guidelines' approach)
terrible injury to child. mom shows up minutes later and sees child suffering and is traumatized
D says no duty b/c not contemporaneous
P says that dillon v. legg is about the idea that we shouldn't be erecting fabricated, arbitrary barriers. if there's real harm that hasn't
happened in a fluke way and because of negligence of D, then people should be able to recover, and duty is just a label to organize
in principle, valid. recognize authenticity of harm
court says law is an arbitrary line, so we have to stop here
Issue: Are Dillon guidelines valid/useable? Need clear guidance for courts, Ps, and Ds, with certainty and reasonable limits. Must
be more than a reasonable person would suffer
limits are inherently arbitrary but necessary
technically reiterated Dillon but as a practical matter, need to limit beyond foreseeability, so takes Dillon and makes the rule hard
and fast
from Dillon and Thing, you get something "distressing" (to BZ): Dillon eliminates an arbitrary line (of the zone of danger) and Thing
brings back a different arbitrary line. BZ thinks these are back-door loss of consortium cases (want to recognize a right of redress/
vindication/symbolic recovery (but no duty not to cause emotional harm), but don't try to squeeze it into common law framework of
duty)
**20 jurisdictions. zone of danger rule. if P was physically imperiled by negligent conduct of D, but only injury suffered was emotional
injury, then P can recover
kind of like assault, the negligent equivalent thereof. near-hit and you recover for the apprehension/fright
Waube v. Warrington, (WIS 1935), p. 731. NIED limited to shock caused by peril to P (as limited by duty), so no recovery for shock
from witnessing daughter's death through window
P was watching through window as daughter crossed the street. D hit daughter with car and killed her.
Issue: can someone not in peril recover for fright? (no)
frames as issue of duty, not proximate cause
fear must be of one's own safety, and does not extend to parent/child
policy balancing question of how far to extend duty: don't want too much liability, but no clear-cut stopping point, so stop with peril to
P.
Robb. v. Pennsylvania RR Co., (1965) p. 701. Woman almost hit by train b/c her car was stuck in negligently created ditch can
recover injuries from fright because she was in the zone of danger even though there was no touching (rejects 'physical impact' rule)
car stuck in train tracks, runs just in time not to get killed. suffers extreme emotional harm and stops lactating.
(think of it as a physical harm case). she gets physicall ill as a result of the trauma, and trauma only occurred as a result of D's
negligence
doesn't really fit in the framework above
mechanism of harm is fear. predicate injury is physical harm, but mechanism is fear
property damage has not supported recovery for emotional harm damages. only emotional harm damages parasitic upon bodily
injury
physical impact rule based on three ideas (each rejected)
fright does not give cause of action
requisite causal connection unprovable
public policy/expediency
courts have obligation to provide compensation when it is obviously due, as here. exclusion of this kind of damages is arbitrary
"where results, which are regarded as proper elements of recovery as a consequence of physical injury, are proximately caused by
fright due to negligence, recovery by one in the immediate zone of physical risk should be permitted."
Consolidated Rail Corp. v. Gottshall, SCOTUS 1994, p. 705. Adopts zone of danger rule under FELA for NIED claims
Facts of (Gottshall and Carlyle, two cases decided together)
Gottshall: P was trying to fix RR tracks, working under extreme conditions (really hot, no water), saw another worker die of a
heart attack while working
P got cold sweats, nightmares, got worried that he would suffer the same fate
want to link heedlessness of employer to emotional harm of P. were heedless as to whether guy died, and also to the trauma
that everyone else would experience under these circumstances
partly a duty issue: is there a duty to be igilant of the emotional well being of certain people, and is there a plausible claim
here by the P that there is such a duty and that duty was breached?
is there negligence as to emotional well being of these employees under these circumstances? (q for p's lawyers to be
able to answer)
Carlyle: clearer claim that employer was negligent to P's well-being
P worked in train yard as dispatcher, was forced to work crazy hours and couldn't handle the stress
court doesn't think it's plausible that federal RR statute could cover emotional harm for working too much
Issue: what constitutes injury in emotional distress caused by negligence? (mental distress that is not equivalent to pain and
suffering: negligent conduct has caused pure emotional harm). Limit by zone of danger test
Problems calling for limiting rules
gatekeeper/floodgates
predictability
validity/fraud
Ginsburg dissent: this test is too restrictive, disputes policy reasons necessitating a test so limiting (in FELA claims, not 'infinite Ps'
should Gottshall be able to recover in this standard? (BZ thinks no).
Breach (issue of fact/mixed; burden on P to establish) (sometimes called negligence)
 should Gottshall be able to recover in this standard? (BZ thinks no).
Breach (issue of fact/mixed; burden on P to establish) (sometimes called negligence)
a four features of standard breach instruction
1 1) negligence = failure to use ordinary care
2 2) "ordinary care" = reasonable person standard
3 3) jury should consider whether D was negligent in doing something or in failing to do something
4 4) consider circumstances and whether care was ordinary for the circumstances
b Considerations for breach (from Adams v. Bullock)
1 foreseeability (most important factor)
2 no warning to take special precautions. Nothing salient about factual situation. No notice (hadn't happened before)
3 no customs had been disregarded (see Hooper, even Hand thinks somewhat important even though custom is not the be-all, end-all)
4 legality (see also in Grand Trunk, where violating speeding law was important)
you can comply with all statutes and still be negligent. NOT DISPOSITIVE
5 no feasible precautions that D could have taken at this spot that could have prevented
c Not living up to the Standard of Care
1 ordinary care: value judgment of what ordinary care requires, and judging whether D lived up to that standard. mixed question of law and
fact
overwhelmingly, we pick standard of ordinary care, defined by reference to reasonably careful or reasonably prudent person (see p. 140, jury
instructions in Meyers, on p. 145, in Grand Trunk)
Martin v. Evans (PA 1998) p. 142: tractor-trailer backs into man, trial court overturned jury verdict of no negligence, ct. of appeals overturns
because evidence supported claim of ordinary care under circumstances.
Evans (D) won at trial (Martin wanted new trial)
jury thought truck driver who hit a guy not negligent
jury came out with defendant by making a credibility determination that P was lying
maybe jury actually thought that it was P's own fault (comparative negligence), and no this read, view of P's liability colored jury's view
of D's liability.
in principle, question of contributory negligence should go all the way through. on this read, you can understand what trial judge was
diong
judge thought verdict "shocks sense of justice,"
appellate court overturns judge's grant of new trial ("wags its finger" at trial judge) because JURY question, not a question for court, so
granted new trial, not summary judgment, because a jury would have to answer other questions on the special verdict
P had burden of establishing breach
jury made credibility determination owed deference
Campbell v. Kovich (Mich 2006), p. 150. Woman hurt by boy lawn mowing with reasonable care. No issue of material fact. (summary
judgment was appropriate)
in some ways in tension with Martin v. Evans
not strong enough to go to jury because nothing showing that action didn't live up to standard of ordinary care
court of appeals affirms (like in Walter v. WalMart, where pharmacist ruled negligent as a matter of law)
ordinarily, fact Q for jury, but 'ripped away' by court here because facts are not strong enough, and so 'only one way a reasonable jury
could come out on this'
question of whether this case is what it purports to be. purports to be about what a reasonable fact finder could find (probably true) but
when taken from jury, takes flavor of policy question (like Adams v. Bullock)
Adams v. Bullock (NY 1919), p. 151. Cardozo. Trolley with overhead wire hurt boy swinging wire. Jury verdict for boy affirmed on appeal.
No negligence because duty not ignored (injury due to extraordinary circumstances).
Breach is usually a jury decision, but here court says facts not strong enough to go to jury. question of whether takes from jury for actual
reasons or for policy reasons
very important case
Cardozo goes through considerations that P would use to say that there was good care (leaves P empty-handed here, so no case that
withstands jnov motion)
accident unforeseeable (most important factor)
kid electrocuted, freak accident
are restrictions on negligence about ferretting out freak accidents where we don't want to assign liability?
foreseeability a common element in duty analysis
foreseeability a common element in breach analysis
freak accidents are a recurrent theme in tort law fact patterns
no warning to take special precautions. Nothing salient about factual situation. No notice (hadn't happened before)
no customs had been disregarded (see Hooper, even Hand thinks somewhat important even though custom is not the be-all, end-all)
legality (see also in Grant Trunk, where violating speeding law was important)
you can comply with all statutes and still be negligent
but here good fact for D that no law broken
no particular precautions that D could have taken at this spot that could have prevented (BZ: not quite true, could have put barrier, at
that spot or everywhere. conceivable but enormously expensive. so no feasible precautions).
So considerations in breach: notice, custom, foreseeability, legality, feasibility of precautions (keep these in mind for evaluating breach
issues)
BZ thinks rightly decided
if P's case so weak, why did P win with jury (case shows importance of idea and practice of comparative negligence as a defense)
jury decided for Adams, against company, which should have to pay
TM: legal realist reading, Cardozo encouraging companies, protecting big industry from small-town jury
if the idea of giving jury breach questions is that they get to decide who pays in tragic accidents, then why should appellate judge take
that away?
sympathy-driven insurance for injured people
2 sometimes, more than ordinary care (common carriers; inkeepers; bailors)
Jones v. Port Authority of Allegheny County (PA 1990), p. 148. Man fell on moving bus. Common carriers have highest duty of care, jury
instruction must reflect that and not ordinary standard. reversal, new trial because trial judge didn't give instruction reflecting higher care for
common carriers
3 sometimes, failure to use ordinary care isn't enough to show negligence/breach: Koffman (school football coach) required gross negligence;
good samaritan laws; landowner liability for licensees and trespassers
4 Industry Custom and Professional Negligence (performed as a reasonably careful X would have performed)
3 sometimes, failure to use ordinary care isn't enough to show negligence/breach: Koffman (school football coach) required gross negligence;
good samaritan laws; landowner liability for licensees and trespassers
4 Industry Custom and Professional Negligence (performed as a reasonably careful X would have performed)
General Rule: professional custom is not dispositive of reasonable care (except in medical malpractice cases). compliance with custom is
not dispositive of meeting the standard of care. TJ Hooper.
T.J. Hooper, 1938, p. 171. 2 boats lost in storm. tugs unseaworthy b.c did not have radios, even though industry standard was not to have
radios.
Maritime law governs (federal question). Not in negligence, even though it's an important breach case, not about breach.
Judge Hand discussing liability for tugs, who are trying to escape liability by saying that they lived up to federal standard (vessel being
seaworthy). If vessels not seaworthy, then share liability.
boats don't have working radios
standard for seaworthiness under maritime law: reasonable care in keeping vehicle in condition it should have been in.
negligence-like standard
D's argument: nothing is wrong with the vessel, and not negligent not to have a radio because it is not standard to have radios, and this
is sufficient basis for rejecting P's claim (reasonable care bounded by customary care)
Hand: whole industry can lag behind reasonable care. COMMON CARE DOES NOT EQUAL REASONABLE CARE
some boats had radios, which doesn't show that it's custom but does show evidence that it's reasonably careful to have one
custom is not necessary to show neglect
categorically, you don't have to prove custom
fact that a lot of people brought their own radios cuts both ways
Johnson v. Riverdale Anesthesia, GA 2002, p. 173. medical expert witness cannot testify as to how he would have treated P (who died
b/c not preoxygenated by anaesthesiologist) b/c not relevant to/indicative of general standard of care.
argument that it is relevant: some credibility value on the line, some inconsistency between "what's the norm" and "what do you do?"
this is the only purpose its allowed (impeachment value) before this case. not relevant substantively,
is he telling the truth? what do you teach your students? is that question probative of whether he's lying?
case is striking for two reasons.
SC of state, doing something at minimum bad form: overrule a precedent precisely on point without giving any reasons (violation of
soft norms of stare decisis, one of most striking examples). raw politics, bad form.
vagueness in question. asking empirical question about pattern of conduct, or request for articulation of norm (normative)?
part of the reason we permit impeachment on this question normally is because its not just a flat, descriptive question of the
norm, but person is vouching for expert's view of how this is supposed to be done in the relevant community
room for normative decision making (what experts think standard of care requirements), so not as anti-TJ hooper as it seems.
Professional negligence: different concept from regular negligence
not higher or lower level of care, but show that D failed to perform as a reasonably careful X would have performed.
alters question on a different axis by redefining who we compare to (instead of reasonably careful person, to reasonably careful person in
field)
Medical Malpractice: opposite rule. breach = failure of D to live up to standard of care for relevant professional community (so compliance
with this standard is dispositive of breach). Anti-TJ Hooper Rule
medical malpractice dominated by Q of breach. on professional community:
how big is relevant geographical community
how specialized is the relevant medical community?
surgeon vs. cardiac surgeon vs. pediatric cardiac surgeon (litigants will fight over this)
does D need to be member of the specified community?
fights about individuation
every jurisdiction says in medical malpractice, P cannot go to jury unless P has expert testimony to support a claim of breach (evidentiary
rule). ALMOST every case needs an expert but not really obvious ones, like leaving a scalpel inside a patient:
Other areas for fudge room in expert's standard of care testimony
specification as to geographical community (most courts are moving to national standard). but to specialization or sub-
specialization? (room for courts to move into normatively demanding standard or to broader standard)
"squish room" in different ways of thinking about what standard of care means
Walter v. Wal-mart, where pharmacist gave patient wrong drug
Why should we have a different rule at all for medical malpractice than for other industries
expertise argument
limited because other highly technical industries where industry has huge incentive to take the most sensible, feasible precautions
and juries know virtually nothing. why wouldn't the expertise argument extend to these other indistries?
notwithstanding expertise gap, reasons to think whole profession has fallen behind
obvious hypothesis: doctors have lobbied well, blocked developments that other industries haven't
good to have medical malpractice shielded from liability for larger public good
lots of states have med mal tort reform to limit liability to limit cost of malpractice insurance for doctors (policy reason to keep medical
care affordable)
symbol of esteem in which medical practice was once held (causal explanation, doesn't defend it)
most plausible defense: even if drs held to standard of care but no higher, still pretty exacting standard. so high potential for liability
even with benefit of anti-TJ Hooper rule.
Informed Consent has patient rule (info a reasonable patient would want before deciding, like TJ Hooper Rule b/c profession can't set the
standard) or physician rule (information that a reasonable/competent physician would give, like anti-TJ Hooper b/c community dictates
standard)
districts vary and flip between patient rule and physician rule
objective standard for causation
Informed consent is a hybrid cause of action
in some ways, a standard of care issue, so similar to malpractice
in some ways, the question is one of consent with proper amount of information, so similar to battery
new cause of action so that Ps don't have to worry about labels
Largey, NJ 1988, p. 177. breast biopsy informed consent case; adopts patient rule and rejects physician rule
Issue: standard to instruct jury whether dr. had adequately informed for consent (P wanted patient rule and D wanted physician rule)
P alleges battery and negligence
Case discards reasonable physician rule and adopts reasonable patient rule. Reasons:
medical custom is a sketchy standard, and industry shouldn't set its own standards anyway
non-medical factors, so can't use purely medical standard
physician's discretion shouldn't limit patient's self-determination
 Largey, NJ 1988, p. 177. breast biopsy informed consent case; adopts patient rule and rejects physician rule

Case discards reasonable physician rule and adopts reasonable patient rule. Reasons:

non-medical factors, so can't use purely medical standard

physician's discretion shouldn't limit patient's self-determination
evidentiary concerns (how to get doctors to testify against each other)
NJ used to have 'physician rule' but now has 'patient rule'. the rule dictates how much and what kind of information
adopts objective standard of causation (would have to show that a reasonable person in P's position, given the information, would have
made a different choice)
Professional Malpractice for lawyers works almost the same way as medical. Almost always needs an expert. less developed field.
Myers v. Heritage (Ill. 2004), p. 138: woman dropped in nursing home, dies unrelatedly soon after, her estate sues home. Instruction should
have been for ordinary negligence, not professional negligence.
Procedural Posture: D wins at trial (even though dropped a little old lady) by getting professional negligence jury instructions and turning
case into a battle of the experts.
question of expertise on whether you should drop a person because
CNA's are professionals and should be judged by the standards of their professional community (not just what a jury thinks they
would do in the situation but what experts say a competent practitioner would do)
could also have argued on the community of professionals and constant training, and that a technical device was being used that
jury wouldn't have known about
P prevails, using statute on nursing home abuse to show that legislature intends for people in nursing homes to be more careful
(something the statute would envision as not meeting the standard of ordinary care)
Question is about the content of the duty of care from D to P (presumptively an issue for the jury)
5 Compliance with statutes does is not dispositive of use of reasonable care (Grand Trunk v. Ives)
Grand Trunk (handout). compliance with (speeding)statutes does not equal reasonable care. not dispositive. different concept. SCOTUS
says jury issue of breach for both P and D
Compliance with Federal Statutes does not preempt state claims (Levine v. Wyeth)
6 Sometimes can't pinpoint a precaution that should've been taken but still have a case in negligence
surgeon being as careful as possible but nicking artery
clumsy driving (small mistake)
BZ: lots of cases. sometimes someone's doing something wrong that yo ucould specify, but sometimes just negligent execution of some kind
of task.
not failure to take precautions, just not doing what you're doing carefully enough
d Defining the Reasonable Person : General Standard: Defining the Reasonable Person (Vaughan, Appelhans)
1 compare behavior to reasonably prudent or reasonably careful person in the situation
2 3 potential parties need this (judges, potential defendants, potential plaintiffs)
3 objective vs. subjective distinction has two separate questions: (1) what person did (objective) or how hard he tried/good faith.intent
(subjective); and (2) more important: compare to someone with like attributes (subjective-ish) or compare to standard average person
(objective)
Vaughan v. Menlove, 1837, p. 158. OBJECTIVE STANDARD OF CARE for guy whose hay burned down neighbor's house, despite having
acted to 'the best of his abilities'
Issue: Why do we impose liability on someone trying his best to be careful but fails? Why objective standard for ordinary care? court's
justification: "so vague a line...no rule at all" (p. 159)
Menlove's argument that he should not be subject to objective standard of care
can do whatever he wants with his land
should have not gone to jury with question of ordinary care, but just to the best of his own judgment and ability (court rejects)
"I'm dumb, so don't judge me against reasonable person"
compare me to people like me OR
just ask if I tried my best
"best of your abilities" wouldn't cut it as a rule, especially since reasonable person standard itself is pretty vague. the added definiteness
needed by:
judges and juries to use as a standard to adjudicate effectively and fairly
actors trying to decide what to do, what is expected of them. world of possible future Ds to guide conduct. reasonably prudent is more
helpful than 'try your best.'
moral point/P-oriented: we are entitled to standard of reasonable care by those around us. Recognizing reasonable right to security
4 particularize in special situations: Children, Professionals, Disabilities
children
kids held to lower standard (reasonable for a kid of their age) down to certain age, under which no liability (tender years doctrine)
Appelhans.
Appelhans v. McFall, IL 2001, p. 160. kid crashes bike into old guy, breaks hip. no negligence to child as a matter of law because of
tender years doctrine
Two charges
was parents' supervision negligent? trial court grants summary judgment, says no evidence that they were negligent
was kid negligent? trial court grants summary judgment on basis of 'tender years' doctrine
On appeal, P's lawyer doesn't push on the negligent supervision charge (BZ thinks he should have), but pushes on tender years
doctrine. want to change age for tender years doctrine to apply
Court says kids should have liability under 7 b/c of tv and internet (bizarre argument) but they can't do it because of precedent
OBJECTIVITY of standard of care (also seen in Vaughan), and its exceptions. (reason this case is in the book)
compare person (without particularizing) to reasonably prudent or reasonably careful
don't subdivide, pick the middle
all that's challenged in this case is the number, on the expectation that homeowner's insurance would pay out for kids. BZ sees
possibility of collusion
If child is engaged in adult activity, then will be held to standard of reasonable adult (case in notes on motorboat). BZ thinks that also for
driving cars
for parents to be liable, must be directly negligent, not vicariously
ex. negligent supervision
ex. negligent entrustment
standards for professionals are higher: competent, well-trained professional in the area (Johnson)
Disabilities
mental disabilities: same standard (no particularization), so knowingly holding them to standard they can't meet. nothing comparable to
insanity. policy reasons:
 Disabilities
mental disabilities: same standard (no particularization), so knowingly holding them to standard they can't meet. nothing comparable to
insanity. policy reasons:
allocate losses between two innocent parties to the one who caused or occasioned the loss
incentive to guardian to control their behavior
no inducement to fake
avoid administrative problems of proving
'forcing persons with disabilities to pay for the damage they do if they are to live active lives'
physical disabilities (like blindness): particularize, hold to standard of other blind person
e Reasonableness, Balancing, and Cost-benefit Analysis. The Hand Test (Burden<Prob.*Loss) to test efficiency of assigning liability for an action
1 US v. Carroll Towing (1947), p. 189, Learned Hand gives standard of care as 'calculus of negligence' or balancing test: whether B < PL
facts and procedural posture
barges lined up off piers 51, 52, and public pier
barges had to be moved, and potentially careless conduct by tugmaster/harbormaster and employee of carroll towing
barges floated toward other barges, and no bargee on ship to notice damage below surface
US sues because owned flour on ship belonging to PA RR company (wartime). Owner of barge lost the whole barge, and contents, and
say it's the fault of the guys who were supposed to tighten line (Carroll towing and grace lines) who sues whom? look it up. resolution of
district court goes up on appeal
Issue: What is the standard of care for negligence for bargee?
why didn't lower court judge think that there was any fault on the part of the Conners company? Hand thinks its obvious that he lied
how do we know that bargee should be on board?
authority in second circuit to say that bargee needn't be there, also cases saying that it is negligent for him not to be there (authority
going both ways)
Hand says that it's right that the bargee needs to be on board
some precedent to say it's negligent (ie the breach, the careless conduct)
duty breached, and duty varies with circumstance, and the way to understand what duty to take precaution is defined as when the
burden is less than the injury times the probability (Hand formula), then duty to do the thing
B= burden (or cost) of precaution
P= probability of injury without precaution (compared to probability with precaution)
L=Loss
So a smaller form of Cost Benefit Analysis: burden of actor of cost and the loss are not borne in the same place. (question of unified
interests, or external costs)
negligence varies with circumstance
Case is used as a prototype for understanding duty not to injure others (lest we face liability), but in this case, relevance of negligence of
Conners company only pertains to whether they can recover fully for their own loss
(P's fault sort of idea. in maritime law at this time, plaintiff's recovery was limited by their own fault, but not all-or-nothing as in contributory
negligence nor as in today's percentage of negligence, but you figure out how many at-fault parties there were, and then divide)
Conners company argues that the issue of whether bargee should have been on board or not is a red herring, doesn't affect outcome of
case, because even if bargee had been on board, the ship would still have been injured same amount. damage causally unconnected to
whether bargee was on board
might not have prevented the collision damages, but might have prevented some of the sinking damages (maneuver by lawyers of carroll
and grace lines or by hand himself)
2 Posner siezed on the Hand formula, says all of negligence law can be explained by it. D will count as having used reasonable care if he took
socially sensible precautions in efforts to minimize waste. If you engage in socially unproductive conduct, Cts will encourage taking cost-
efficient precautions that add to the aggregate social wealth
if a company is selling cars to people, will put $ into checking the tires commensurate with (put efficient amount of money into checking the
tires)
problem that people are basically selfish, deal with problem in tort law by making defendant who made inefficient choice pay for the cost of
the injury. if they don't take the fficient precaution level, they have to pay the cost of the injury (make it function like it's all one big smart social
planner)
TM, what about transaction cost?
TM, also why the assumption that the efficient level is the social/moral level? not everything can be designated a cost.
both makes sense in the law and econ sense, and has been the basis of tort law (according to Posner's reading of Hand here)
3 Rhode Island Hosp. Trust Nat'l Bank v. Zapata Corp, 1st cir. 1988, p. 194: bank is using sufficient system for detecting bad checks b/c it is
cost-efficient, and spending more wouldn't produce significantly better results
Issue: what is the standard of negligence in detecting forged checks?
Holding: P did not prove lack of ordinary care on the part of the bank, so no negligence
bank's practices were industry standard or better
more careful practices would impose big costs and court doesn't think would produce real saving, so wouldn't be reasonable
"not every precaution is worth taking"
4 The Hand Test: (strengths, weaknesses, etc.)
frequently criticized for bottom-line/heartlessness approach. If you believe this, you think just calculate risk of suit 'immoral'
legal actors should not take precautions except insofar as would be rational and avoid liability
suggests negligence means take precautions when you would face liability
Hand doesn't talk about cost and probability of litigation, but cost and probability of injury. Encourages actors to think outside themselves
nothing to suggest that Hand means cost of litigation.
Hand not talking about dollars when he talks about costs. Posner means wealth. Hand means costs more broadly
Georgia peanut butter with salmonella example: by Hand formula, not about what people should do, just tells us what kind of liability should
be imposed and connection of liability to what law says should be required. Method of interpreting reasonable care.
is reasonably prudent care: business? ethics? t.j. hooper or anti-
B= costs to company in taking the precaution would be wasted product, etc.
L= potential losses if you don't take the precaution
(medical bills
loss of customers)
pain and suffering counts? should count. (Hand would agree, Posner too (he just wants everything in dollar and cents scale so you can
analyze))
does the reasonable person, in considering the consequences of his or her action, consider how much pain and to how many
people? YES!
adult pain counts
 L= potential losses if you don't take the precaution

pain and suffering counts? should count. (Hand would agree, Posner too (he just wants everything in dollar and cents scale so you can
analyze))
does the reasonable person, in considering the consequences of his or her action, consider how much pain and to how many
people? YES!
adult pain counts
if you don't know how much has gone out and you don't know how many people might be affected, but have reason to believe that non-
trivial amount went out, should you recall?
policy-makers POV:
moralists POV:
Crit: preferences people who can make money by imposing pain and suffering on others. (If I can make $500 by imposing $200 of pain on
you, I will do it).
Posner and hand would have said 'I don't know what peanut butter people would do, it depends on how much the recall would cost, whether
reasonable care would require it.' There is a cost beyond which reasonable care wouldn't require it
cba is a way that we think about a lot of social policy problems
tautological once you're doing cba
hand and posner are trying to entrench relevance of formula as abstract matter in common law of negligence
assuming that what reasonable care means is what a reasonable person doing cba would do
gives components of decision, not what decision should be
basis of thinking about negligence liability at all
In reality, people know of highly dangerous activities and take not-insignificant risk, and thus are required to do recall (without asking how
much it costs and if it will be worth it, which would be the next 'hand' question)
is this analysis consistent with the way people in our legal system and in our society understand reasonable care? is there too much of a
ramming of reasonable care (which is meant to be an everyday notion) into bottom-line attitutude toward safety?
BZ: The question of whether CBA is appropriate is an academic question, because the Hand formula is in left field, and isn't what negligence
law is about (even though single most influential idea for American law professors).
negligence cases go to jury, where breach is an issue before the jury, and uncontested that jury is never given the hand formula, even in
abstract version, and uncontested that they are given the 'squishy stuff' given in the first section on breach: "what a reasonably careful
person would do under the circumstances"
a few appellate judges who do what Breyer did in Zapata, which is to use analysis of Hand formula and Posner in thinking about how to
interpret ordinary care
doesn't think it's that relevant even though many scholars out there think this is all the worse for a jury system (maybe don't give it to them
if we think they're too stupid, but ordinary care is a heuristic that channels them to the same considerations)
some profs think we should get rid of the jury or change the jury instructions to be about Hand formula. or just have professional judges
deciding
decisive that it's not what the law actually is
pro: flexible enough to include pain, death, etc.
NOT battery even if you know by probability that someone will get harmed. fine line between advertence and inadvertence. But could
probably be punitive damages in the peanut case be
Methodological Problem with Hand: measuring each of the three variables (for actors and for juries)
problem of incommensurability or incomparability (dollars vs. pain)
intersubjectivity problem. we can't measure the values other people place on this. "problem of interpersonal utility comparison"
Posner says that at least in theory, market is pricing mechanism that makes everything fungible, including things above
works interpersonally
keep wealth the medium of value so that market can accommodate, even if it seems desirable to change to pain or something more
tangible
Calabresi response to untradability arguments: society constantly makes these sorts of valuation decisions, and draws lines
trade-off is a condition of the whole enterprise of policy-making and it's naive to pretend otherwise. But doesn't mean that at the end of
the day that all we'll be doing is putting things into formulae. Courts and laws have different ways of slicing the problem. juries are making
their own decisions
5 Lord Reid's "Disproportionate Cost" test
if risk was exceedingly small that the sort of harm at case would be suffered, then no obligation to take precautions
if risk was real but very small, obligated to take precautions unless cost disproportionate to harm risked
if risk of harm was material/substantial, D had to do everything possible to prevent, even if precautions were disproportionate in cost
f Judges vs Juries deciding breach
1 When questions of breach are decided by judges and not juries, we should ask whether the case is what it purports to be (a case where all
reasonable fact finders could only find one thing) or policy cases
Adams v. Bullock is most obvious one
but Campbell v. Kovich also taken from jury
Walter v. Wal-Mart Stores, Inc. (ME 2000)
facts: chemo patient was given wrong drug by pharmacist, suffered injury
issue: Did the trial court err in granting judgment as a matter of law? (no)
2 Reasons for judge to take from jury
courts sometimes inflate their power to pull breach q from jury for policy reasons
ask if the reasons sound
Ds can also request that jduges consider P's breach of ordinary care as a matter of law
g Proving Breach: Res Ipsa Loquitur (the thing speaks for itself)
1 3 conditions for res ipsa in black letter law today
the event has to be of a kind that ordinarily does not occur in the absence of negligence
Kambat brings up that this element is the one with expert testimony
instrumentality of harm exclusively in Ds control
not due to any voluntary action on the part of P
2 Res Ipsa main ideas, themes, facts
largest role: defeating motions as a matter of law
tool for fighting a defense motion as a matter of law that case shouldn't go to jury because P doesn't have evidence of breach. so doesn't
make P win, just allows to go to jury, and D gets a chance to present evidence to rebut.
res ipsa frequently used against the P
standard: "enough that the evidence supporting the three conditions afford a rational basis for concluding that "it is more likely than not" that
the injury was caused by defendant's negligence" (p. 208, Kambat)
res ipsa and expert testimony: usually a big issue of contention, and experts used to displace jurors' common knowledge of whether the type
of injury could normally occur without negligence. can use res ipsa even when expert testimony is needed to establish that events leading to
P's injury wouldn't happen without carelessness
 2 Res Ipsa main ideas, themes, facts

standard: "enough that the evidence supporting the three conditions afford a rational basis for concluding that "it is more likely than not" that
the injury was caused by defendant's negligence" (p. 208, Kambat)
res ipsa and expert testimony: usually a big issue of contention, and experts used to displace jurors' common knowledge of whether the type
of injury could normally occur without negligence. can use res ipsa even when expert testimony is needed to establish that events leading to
P's injury wouldn't happen without carelessness
by and large, tort law sticks to evidentiary understanding of res ipsa
3 Byrne v. Boadle Engl 1863, p. 205: flour falls on guy's head in the street, fact of the accident is prima facie evidence of negligence, so court
invents res ipsa loquitur and burden shifts to D to disprove negligence
you can't have a rule where there's an accident and an automatic presumption of negligence, because P's burden of proof to PROVE
negligence. If injury is enough to win, then it's strict liability. Injury can't be enough in itself.
D has the law in his favor but not the facts (under the law at that time, P has to prove breach, but...)
key to court's solution: find a way to deal with floodgates problems: find a way to constrain the domain within which res ipsa will work, so
manageable set of cases that is predictable. 3 conditions for R
you might think we don't care whether D was negligent, and that it's a case about evidence like the court says. BUT, do we care if there was
negligence by Byrne? So is it evidentiary ideas that drive the concern that he be able to recover, or is it that in certain contexts, something
like strict liability seems more appropriate anyawy?
4 Kambat v. St. Francis Hospital, NY 1997, p. 206. surgery pad in P (medical malpractice suit), court should've given res ipsa instruction
facts and procedural posture
woman has laporotomy pad(18x18) in her bowels
trial court refused to instruct jury on res ipsa, and hospital won on theory that woman swallowed the pad
case won with expert witness for D, who said she easily could have swallowed the pad
jury doesn't have to believe whole defense as a technical matter
(on remand, D still won)
P was allowed to go to jury anyway, did not face summary judgment motion
"where the actual or specific cause of an accident is unknown, under the doctrine of res ipsa loquitur a jury may in certain circumstances infer
negligence merely from the happening of an event and the defendant's relation to it."
standard for P (besides 3 conditions to invoke) is that its more likely than not that injury was caused by D's negligence (doesn't have to
disprove all other possible causes)
h Negligence Per Se (doctrine that breaking law is prima facie negligence). also covers regulations (Bayne)
1 doctrine used by Ps to bolster their claims on breach, like res ipsa (device to shift burden of proof from P to D)
also, a few potential excuses for non-compliance with law even if negligence per se
if P succeeds in invoking the doctrine, judge can instruct jury that they must find that there was a breach
not so much about a fact pattern as it is about the law. use it to earn an irrebuttable presumption that there was a breach.
as procedural matter, must more powerful tool than res ipsa.
makes pretty strong case on breach into airtight case on breach
res ipsa takes a weak case on breach to viable on breach
caveat on powerfulness: only gets you over the breach problem (slight exaggeration), doesn't tell you whether the breach caused the
injury
2 threshold question in negligence per se cases: is this the right kind of law, given the fact pattern, to trigger negligence per se? (right kind of
law, right kind of person, right kind of injury)
4 factors (in restatement §286, p. 340):
class of persons
particular interest which is invaded
the kind of harm which has resulted
against particular hazard from which harm results
4 factors frequently boiled down to 2 factors:
is this statute there to protect the class of persons of which the P is a part?
is this class of statutes there to protect that class of persons against the sort of hazard that in fact ripened into injury in the case before us
now?
classic example of statute put in place for safety reasons: young children in car seat. if child not in car seat agitates and causes accident,
then argue:
for negligence per se: by not putting first child in car seat, breached duty of due care
victim is a child
kind of injury is the kind statute meant to protect against
against using negligence per se:
hazard in this case was child being annoying and distracting the driver, which is not reason for carseat law
3 Dalal v. City of New York, NY 1999, p. 338. D in accident not wearing glasses against law is negligence per se. statute sets up standard of
care, the unexcused violation of which is negligence per se (339)
4 Bayne v. Todd Shipyards corp., Wash. 1977, p. 339. Violation of administrative safety regulation (requiring guardrails) is negligence per se.
delivery man who was not employee of loading dock area, but injured because platform didn't have guard rail.
I1: court said negligence per se from four factors from restatement
P argues: right kind of statute because it's about safety, meant to protect people who are working at these kinds of sites
so right category of P (workers), right category of D, right category of risk (falling), right category of injury
wrinkle: OSHA regulation, about protecting employees of the people OSHA is regulating. P was not an employee of company, so
technically maybe outside? (P argues that its to protect all workers at site, and wins)
I2:P can use negligence per se analysis even though regulation, not statute
traditional arg for negligence per se: if legislature has weighed in on standard of care, then true as a matter of law, bc legislature is
representative, the person to regulate, etc.
so under this argument, right kind of statute is one made by legislature
if the body making decision isn't cross-section of community, can you use it the same way? court follows majority decision that you can,
but court overrules precedent to get there.
5 Victor v. Hedge Cal. 1999, p. 342: parking on sidewalk does NOT = negligence per se
court finds that negligence per se does not apply because P is not of class meant to be protected by the law; not the ind of injury law was
intended to protect against)
not ordinary negligence, either, bc not unreasonable or unforeseeable risk of harm
6 Martin v. Herzog, in notes, about driving without lights at night, uses contributory negl per se. Cardozo says failure to comply with law to use
lights is not evidence of negligence--definitely neg.
Causation (issue of fact) (P's burden to prove by preponderance)
a Actual Causation/Cause in Fact/But For Cause
Causation (issue of fact) (P's burden to prove by preponderance)
a Actual Causation/Cause in Fact/But For Cause
1 issue of fact, under preponderance of evidence standard
Circumstantial evidence is used for the preponderance standard (more than 50% chance). It must facilitate reasonable inferences of
causation, not mere speculation.
Skinner v. Square D; (Mich '94), p. 221 defective switch case - causation element decided on SJ (not by jury) because circumstantial
evidence not strong enough, and court thought decedent was probably careless- alligator clips case with phantom part of switch
“P must present substantial evidence, from which a jury may conclude that more likely than not, but for D !s conduct, the P"s injury would
not have occurred”
P must prove causation by showing that there was a greater than 50% chance that P would not have suffered harm had D not acted
negligently. If less than 50%, P loses. If more than 50%, P recovers 100% of damages.
2 3 kinds of answers to why we have cause in fact reqt
care about causation, bc in world of deterrence, we don't just ask blunt question, we need right level of deterrence, coming in right time and
right way. so amount of liability matters, even from pure deterrence and regulatory point of view
economists say this is why causation matters. causation is built into logic of deterrence (like Sindell)
causation is what we have (for social and other reasons). might not be that logical, but serves a variety of functions including compensation
and deterrence, but it would be crazy to get rid of rule bc it plays significant floodgates rule, predictability rule, etc.
gives predictability and texture
practical/administrative/instrumental conception of causation
holding people accountable for what they've done, for injuring other people is what tort law is about. only when people prove that the person
actually injured them can they sue.
causation lies at the core of responsibility that's at the core of tort law
3 Loss of Chance: Some jurisdictions, but not all (about 20)
Falcon v. Memorial Hospital (Mich. '90), p. 231. "loss of chance" doctrine. Patient can recover 37.5% of wrongful death damages for loss
of 37.5% chance to survive. MINORITY
patient giving birth suffered from amniotic fluid embolism. IV not established, patient died.
37.5% survival if IV established beforehand (P's expert): so same thing more probably than not would have happened even if hospital
had acted perfectly
Issue: should case be dismissed b/c probability of survival less than 50%?
Holding: P gets 37.5% of damages that she would get for wrongful death suit. Injury not just physical harm, but loss of chance to
avoid physical harm
Michigan undid this case by statute
assuming that it was a breach not to put her on an IV. Court assumes this from the way it states the question
not about feeling bad for doctors, about access to health care: if you drive up costs for doctors, it will deprive more people of health care.
the more you soften the liability system
loss of chance doctrine allows a weakness in causation to get past summary judgment
can't come up to the standard of likelier than not. (policy con)
instead, not recovering for injury of 'dying,' but for for injury of 'losing your lottery ticket.'
Reasons to adopt loss of chance (usually favoring P):
easier for Ps
if heightened chance of survival is very reason that person decided to go to this doctor, and that's what their negligence takes away, then
more plausible that it's a real loss (policy pro)
P had right to rely on doctor for this chance
one of the best arguments, superficially: we want people to be accountable, and accountability can mean two things
moral conception of accountability (hold someone who has injured you accountable to you)
system depends on private law to send the right incentive to physicians, hospitals, etc. if we want that system to work, we can't rely on
only cases that go over fifty percent (so on interpretation of tort that its a system to send a message about level of precaution, it's good)
Reasons to reject loss of chance doctrine
problems in consistency in evidence
problems in giving to jury
problems with not extending it to other areas
slippery slope: how low an amount can you recover for? (insufficient argument of the problem)
access to health care (falcone): the easier you are with liability standard, the more expensive it is for people to get medical care
one of the major problems: if you add loss of chance doctrine to the system and leave everything else the same, then from deterrence
perspective, you have too much liability (because person can recover 40% when 40% chance of injury, and 51% chance of injury, you
recover 100%
you could correct for that over-deterrence by applying loss-of-chance doctrine to chances over 50%
problem with permissiveness of what gets past summary judgment stage
other ways for legal system to finesse this kind of problem
BZ problem with above analysis: not clear whether damages that would be assigned to death have anything to do with what remedy should
be. remedy should be for chance, not for death
MA: 452 Mass 1 (2008): MA adopts loss of chance (Matsuyama v. Birnbaum)
4 Substantial Factor test: If several causes could have caused the harm, then any cause that was a substantial factor is held to be liable
(mostly CA)
can't be a tiny cause, must be substantial. used in many jury instructions (without explanation of what substantial means).
Need to be but-for cause before substantial analysis (Aldridge)
2d Restatement deals with two problems:
philosophical cause wasn't a real factor in bringing the thing about. wanted to flunk these trivial contributions on proximate cause
wanted not to be stuck with but-for causation for every single cause-in-fact case
Restatement, p. 254-44;
§341
§342: something isn't a substantial factor unless it's a but-for cause, unless meets section 2. section 2 protects multiple sufficient
causes (Anderson).
intention to rule out trivial causes, but loss of chance cases, where Ps don't live up to substantial factor test/but-for cause, and are
systematically disallowed
3rd restatement: always but-for cause unless Anderson two fires case or something extremely close to the asbestos scenario (signature
injury, overload of exposure, each D trying to get out). you can do loss of chance if you want. [to try to pull us out of the quagmire of
substantial factor, which was meant to help but made these areas muddy]
Balbos (cited in Aldridge): asbestos litigation in MD, Ps sued all asbestos makers. group was sufficient, but each D alone not sufficient (could
argue that the injury would exist without one D's conduct). Not multiple sufficient causes, because some Ds would not have been
independently sufficient, but sufficient as a group (multiple necessary). Modified substantial factor test (as a policy matter)
 3rd restatement: always but-for cause unless Anderson two fires case or something extremely close to the asbestos scenario (signature
injury, overload of exposure, each D trying to get out). you can do loss of chance if you want. [to try to pull us out of the quagmire of
substantial factor, which was meant to help but made these areas muddy]
Balbos (cited in Aldridge): asbestos litigation in MD, Ps sued all asbestos makers. group was sufficient, but each D alone not sufficient (could
argue that the injury would exist without one D's conduct). Not multiple sufficient causes, because some Ds would not have been
independently sufficient, but sufficient as a group (multiple necessary). Modified substantial factor test (as a policy matter)
Aldridge v. Goodyear Tire and Rubber (1999), p. 242. Without but-for causation, no substantial factor analysis, and therefore no jury in suit
against Goodyear for chemical exposure in tire plant. P fails to demonstrate sufficient evidence of cause in fact to go to jury.
5 Multiple Sufficient Causes - where there are 2 sufficient causes, neither is the but-for cause but each can be treated as a cause (Anderson
v. Minneapolis St. P & SSM Ry. Co.)
6 Joint and Several Liability: If two or more persons concur in contributing to and causing an accident, and but for such concurrence the
accident would not have happened, the injured person may sue the actors jointly or severally and recover against one or all
Ps can recover all damages (or any chosen amount) from either, up to 100% (usually depends on who is solvent) as long as just one injury.
Simultaneous conduct not necessary (Ravo v. Rogatnic)
Right of Contribution: one joint tortfeasor has against the other to recover any more than assigned percentage of liability that P recovers from
that tortfeasor (but high transaction costs, and other tortfeasor might not be solvent)
Legal System uses to assign risk that one tortfeasor won't be able to pay to other tortfeasor rather than faultless P
joint and several liability was rule of negligence generally in US until 15 years ago, but many legislatures have eliminated or diminished
(eliminated from certain areas like med mal or products liability)
McDonald v. Robinson, p. 239: woman injured by two crashed cars sues both drivers as joint tortfeasors, wins, can try to recover all of her
damages from either (collided cars carry plaintiff many feet and severely and permanently injure her; Ds say can't be jointly liable b.c not
acting together)
Ravo v. Rogatnick, NY 87, p. 513. obs. and pediatrician jointly liable for retardation of child. simultaneous conduct not necessary to a
finding of joint and several liability, 80/20 split.
7 Alternative Causation: each D must DISPROVE that his carelessness caused injury. often comes with joint and several liability
key in these and res ipsa is finding some sort of limiting principle, so only use this way of finessing the problem in a narrow range of cases,
and only doing it by changing burden of proof, not by changing underlying reqts for tort
Summers v. Tice Cal 1948, p. 259. 2 jointly liable negligent quail hunters, and P can't locate the fault but clearly the fault of at least one of
them. each D must prove the other was sole cause to escape liability. Policy-driven solution to evidentiary/unfairness problem
narrow view: tie goes to P in tiny universe of cases where two Ds at exactly 50/50 split of negligence. no rights-based reason. (if 3 Ds, no
liability, b/c for each, much likelier that it was the other two)
8 Aiding and Abetting and Concert of Action
drag racing cases: even without conspiracy, actions that self-consciously coordinated, actionlike a unit, and seems fair to let P recover from a
member of this unit, as it would if there were a conspiracy
yes, you can do it without agreement with self-conscious coordination of parties
courts almost never even send it to trial on this theory
9 Market Share liability: P can recover from D's based on their share of the market since it would be unfair to bar plaintiff from recovery where it
is impossible for her to prove which manufacturer caused her harm and any of them could have caused it Still requires cause in fact, but allows
shift in burden of proof for situations of impossibility of info.
Sindell v. Abbott Labs, Cal. 1980, p. 929. DES drug to moms of Ps, Ds liable in proportion to their market share at time of injury. shifts
burden to Ds to prove that they were not part of the market. important that there was a generation-long latency period and important that the
drugs were generics.
b Proximate cause: arises after actual cause, and measured by: Directness, Foreseeability, and Scope of Risk. Issue of fact. Use all 3 tests.
1 Directness: clear line between act and result. (Polemis)
Ryan v. New York Central case from NY, p. 273. Railroad fire jumping to second house 'too remote' for proximate cause. "Natural and
probable consequence"
uses 'natural and probable' consequence as criteria for probable cause: doesn't on its face make any reference to human mind
here, the spreading beyond one house was not natural and probable, and so would cause floodgates problem
uses natural and probable; makes proximate cause harder
train negligently caused spark that hit structure on property that caused fire that spread to next property, who sued train co
Polemis, p. 274. Shipworkers negligence, which unforeseeably causes destruction of ship by fire, is nonetheless guilty. Foreseeability
doesn't matter, only directness "Directness test."
Palsgraf v. Long Island Railroad Co. (NY 1928), p. 299. Cardozo: No negligence to P in railroad injury (package exploded and scales at
end of platform fell on P) because negligence is relational and the negligence was not directed to her. Andrews dissent: enough proximate
cause to go to jury under directness (Polemis)
at trial, jury verdict for P for $6,000 (appellate division affirmed)
P's argument on 4 elements
duty: railroad company has duty to everyone there, ticketed customers
breach: it's a fact q, for jury, and the jury thought there was a breach, and appellate div. thought there was good enough evidence
offered to jury to uphold finding of breach
injury: credited
causation: there is definitely cause in fact. we can wonder if there is prox cause, but Cardozo assures us this is not his problem.
Holding (Cardozo): not negligent relative to P, so no recovery (overturned lower two courts). On basis of duty, (no legally protected right
invaded).
just because negligent to someone else doesn't mean she can recover (idea of correlative negligence)
"the risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation," defined by natural or probable
consequence
C takes a lot of shit for taking side of train company and, people say, doesn't even make a good argument
*Dissent (Andrews): No such thing as relational duty; it's a proximate cause issue. She is within proximate cause by his judgment, or at
least close enough that he thinks it ought to go to the jury.
at a certain point, a judgment needs to be made about where liability is to be cut off. concedes it's a judgment call that has to be made
in a negligence case
relative vs. direct cause (no matter if foreseeable, etc.)
here, not so unforeseeable, and foreseeability isn't the whole ball game. there are ots of other factors (see below)
looking at strength of connection between the cause and the injury
negligence defined: act or omission which unreasonably does or may affect rights of others, or which unreasonably fails to protect
oneself from the dangers resulting from such acts
due care is owed generally
Polemis is and should be the law (directness as limit). Close enough to go to a jury.
ways in which this situation is indirect: dropped, blows up, gets tracks, hits scales, hits her. the injury is also eventual (starts
stammering over time).
 Polemis is and should be the law (directness as limit). Close enough to go to a jury.
ways in which this situation is indirect: dropped, blows up, gets tracks, hits scales, hits her. the injury is also eventual (starts
stammering over time).
on the other had, negligently hit someone, dropping, explosion, injury. this is good enough for Polemis, which is the law at this time.
if harm results from carelessness, anyone harmed has cause of action
proximate cause=justice/policy based end point. expediency with considerations ("hints"):
natural and continuous sequence between cause and effect
was one a substsantial factor in producing the other
was there a direct connection between them, without too many intervening causes
is the effect of cause on result not too attenuated?
is the cause likely, in the usual judgment of mankind, to produce the result?
or by the exercise of prudent foresight could the result have been foreseen?
is the result too remote from the cause (time and space)?
evaluating the case's arguments (PD: you can skip this)
relational aspect of duty; relational aspect of breach
has to be a certain lineup between breach and duty. not enough that a duty exist and a duty exists.
why do we need that/how does C justify its necessity?
boundary built into tort law (that Andrews says is falsified by transferred intent)
affront to personality; torts are wrongs to person/personality to Ps
must be a wrong to person who is standing
purports to be putting forward argument. premises: (1) negligent conduct in this case was not a wrong to the P; if it was a wrong
at all, it was a wrong to 3rd P. P can't recover just because there was some wrong. (2) Person can't recover in a tort claim unless
the wrong on which they're suing is a wrong to himself herself.
is the case about duty (Cardozo) or proximate cause (Andrews)?
most casebooks treat as prox cause case, and Andrews treated it as that
Cardozo did NOT think it was a prox cause case (p. 303: "the law of causation, remote or proximate, is foreign to the case before it."
if there were a tort, he would be ok with giving recovery. wouldn't be worried about how big/direct. cites Polemiss
C's taking it from jury is said to stem from his desire not to let P win this case. BZ disagrees.
transferred intent: good for P. Andrews said it destroys Cardozo's argument.
transferred intent is for a+b. it's an intentional tort.
Andrews: relationality is not something we exist upon in tort law
thinks its crazy to require relationship to duty that was breached
thinks best arguments for Andrews comes from Cardozo in MacPherson: duty in negligence law is universal. duty to be careful not to
act in ways that unduly risk injury to others is a duty owed to everyone
wrong analysis of what duty to act reasonably requires
P can recover even if she was not the one to whom the wrong was done (ie recovery of husbands in loss of consortium) (right of
subrogation, insurers)
loss of consortium and wrongful death are not common law of torts, they are statutory
right of subrogation is not within tort law per se, you need tort claim and the insurance contract giving you the right (under equity
right).
BZ: two things you could mean by duty being universal.
Winterbottom: you need a contract for a range of tort/negl claims
1. MacPherson: you don't need a contract. duties to all kinds of people regardless of whether there's a contract. anyone who can
prove you breached duty owed to them can recover. (Cardozo). willing to expand duty, but whatever the duty is, has to be a breach
of duty owed to that person.
we have to think about whether it's plausible to think about in this way AND whether it's reasonable to think about it this way
2. a lot of ppl (incl Ca. S. Ct. in Rowland v. Christian): the whole idea of duty is problematic. if you have careless action, causal
relation, and injury, you're good to go. just general duty to use reasonable care. (Andrews)
two different pictures of duty. also two different pictures of whether you can figure out if the wrong has been donebefore you figure out
the relational duty/who the P is. most broad ranging/significant distinction: the administrative one
Andrews takes the simpler side: reasonable person standard, and liable for all things that happened
Cardozo: can't figure out from looking at conduct standing alone, always have to make sure we can see what has happened to P as
breach of duty that D owed to P. once that, don't care how much damage there is, can recover for all of it.
even if you went with cardozo on prox cause, even if you think its cogent to talk about negl relative to P. even if you thought black letter
law of negl required breach of duty owed to p, would still be a normative q at the end of the day
C, 303, the reasons you get to sue at all is because a legal wrong to you was done.
something fundamental about tort law that is private law, as distinct from crime
this is what blackstone and locke thought about why the state had private law
BZ goes with restatement second on negligent: four elements, have to hang together in particular right way. the standard.
2 **Foreseeability: American courts overwhelmingly use foreseeability. If some injury is foreseeable, P can recover for all resulting injuries.
Mostly jury. Wagon Mound.
Posner: social waste that goes along with incentivizing people to gather too much info about possible harms that go along with their behavior.
Wagon Mound 1, p. 275. Foreseeability is key test for proximate cause (because of intuitive relationship to fairness). Shipworkers who did
not foresee any risk from torchwork on dock after oil spill not liable for fire.
Union Pump Co. v. Allbritton Tex '95 (269). No proximate cause as a matter of law for P who slipped after chemical fire, too remote/
unforeseeable as a matter of law
Concurring judge (Cornyn): considerations of proximate cause=foreseeability plus policy considerations. Here, not foreseeable.
accuses majority of twisting language of proximate cause by using language of condition. being a necessary condition doesn't even
make something a cause, much less a proximate cause.
most jurisdictions use but-for causation as sufficient for cause in fact, and then the mess comes under proximate cause
says majority messes up this nice analytic distinction
fair accusation, but majority had basis for doing that
even though but-for causation and cause in fact, we still need proximate cause. here, we do proximate cause by foreseeability, but we
all know that foreseeability includes equitable gatekeeping, and here there are enough policy factors to say no foreseeability as a
matter of law, so no proximate cause as a matter of law.
Dissenting judge: in response to 'she should have walked around the pipes,' that is an argument about comparative responsibility, which
should go to jury
emergency is over, but if there is principle of sending questions of proximate cause and foreseeability to jury, then we should send to
jury
 Dissenting judge: in response to 'she should have walked around the pipes,' that is an argument about comparative responsibility, which
should go to jury
emergency is over, but if there is principle of sending questions of proximate cause and foreseeability to jury, then we should send to
jury
Superseding Cause: special case of proximate cause where some other cause was so strong that destroys Ps argument against D. Test is
generally foreseeability. overtly normative, equitable idea. in looking at total situation, another act with higher level of wrongfulness, seems
wrong to hold D liable. by and large the law of superseding cause has really eased up in favor of Ps
all superseding cause arguments have same structure
conduct by an actor other than D that is in some ways negligent, tortious, wrongful, criminal, or worse.
intervening (between original negligent act of D and injuring of P), erase causal significance of acts of D
Test: character of intervention plus foreseeability of origin
most courts let Ps recover for 'extra' costs of ordinary medical malpractice. ordinary med mal is a foreseeable intervening cause, so not a
superseding cause
Britten v. Wooten: house was burned down bc store had been keeping stacks of boxes in an irresponsible way. Court found the fact that
an arsonist started the fire not unforeseeable, so no superseding cause.
Pollard v. Oklahoma City Ry. Co. p. 288. little boy injured by explosive collected and stored by friend (with parents' knowledge) cannot
recover from company because other little boy was intervening/superseding cause, so no prox cause
Clark v. E.I. Du Pont de Nemours Powder Co. 1915, p. 292. Company left explosive nitroglicerine, boy found it, got injured, sues
company and wins, because foreseeable for a person of ordinary caution or prudence so an issue of fact for the jury
Distinguish Pollard and Clark:
posture of two cases are different
already been a jury verdict in Clark, and the jury looked at superseding cause arg. and rejected it
Pollard is summary judgment motion
3 Risk Rule (adopted by restatement 3d for test for proximate cause): needs to be nexus/alignment between risk that made conduct negligent
and risk that's realized in the injury.
Jolley v. Sutton London Borough Council, p. 277. Boat in London projects' yard falls and cripples kid. Class of harm (injured child),
although not specific harm (boat falls on child) was foreseeable, so county (owner of housing) liable
central question becomes the description/breadth of the risk. how narrow or broad is the type of harm that is foreseeable, and how broadly
should it be defined?
Calabresi: use b/c of law and econ: get right level of deterrence by matching the actual harm with the harm we think ppl should be
responsible for
Restatement 3d wants proximate cause to play a significant restraining rule because all courts feel like there is significant floodgates problem
in negligence
have proximate cause play bigger role in floodgates because alternative is for duty to play a bigger role. but if it's under cause, it goes to
jury, which is better becaues it stops courts from making broad statements of prox cause and ripping broad cases away from juries
people (including BZ) think this is better. can argue that it's an interpretation of foreseeability
Injury (issue of fact)
a Physical Harm to:
1 body
2 land/property
b Loss of wealth
c Others including emotional distress
Statutory Supplements
i Wrongful Death Acts (two types, for different types of damages, different social functions)
a wrongful death actions: spouses and other limited family members can sue in their own name for $$ for wrongful killing of their family member
1 derivative of victim's underlying claim
2 spouse will be made whole by the way D cut off income stream to spouse. 'wrongful death' statute, under surviving spouse's name
3 statutorily designated set of beneficiaries
4 Damages Recoverable:
used to be limited to pecuniary losses, not pain and suffering
generally permit money for services your spouse was providing
loss of consortium (here, category of damages)
question of how to guide the jury, whether it has to be actual services or just company, etc.
to compensate for reduced QoL of survivor
NOT emotional distress/grief
big split on whether you can recover for grief
b loss of consortium (means 2 things)
1 in the context of wrongful death, its the name of a category of damages that Ps are typically allowed to recover for in a wrongful death action,
big question is what will guide the jury. does it have to be about actual services? can it be company? how limited? compensates for reduced
quality of life for survivor, NOT emotional distress/grief over death of loved one
2 in cases where injured person has not died but is seriously injured, P's lawyer will commonly add a cause of action by spouse of injured
person for these damages for loss of company or loss of services, also caused loss of consortium
derivative of victim's underlying claim, and so limited
used to be for men to recover loss of sexual services that spouse was providing, now provided to both (for loss of company, which is
broadening of loss of services)
c survival actions: allow tort claim to proceed after death of a party (P or D), to recover what deceased P would have recovered had he not died
(including the pain and suffering experienced due to D's tortious conduct before dying.
d Nelson v. Dolan (1989), p. 359: Appeal from winning mom contesting exclusion of mental anguish. She can't recover for her own mental anguish
because it is not covered by Nebraska's wrongful death statute. She can recover for decedent (son)'s pain and suffering in a survival action
1 Facts: aggrieved mother recovers $37,000 from defendant despite terrible conduct and injury. man hit by motorcycle after chase, died soon
after being hit. very low damages award.
2 P's lawyer argues two things to the court to increase amt of damages:
other places let mom recover for emotional harm. why not let her recover it here?
if Nelson had lived, he would have been able to get damages for suffering he experienced during period when he was being pulled by d's car.
3 H1:only pecuniary damages for next of kin (no pain and suffering for Mom) b/c Nebraska's statute is only for pecuniary loss (court does not go
with P on this one). NOT about the harm that P incurred b/c of death
4 H2: estate of decedent can recover damages for decedent's pain and suffering/fear of death (the court goes with P on this one). cause of
action survived P. jury q of what he actually suffered
 3 H1:only pecuniary damages for next of kin (no pain and suffering for Mom) b/c Nebraska's statute is only for pecuniary loss (court does not go
with P on this one). NOT about the harm that P incurred b/c of death
4 H2: estate of decedent can recover damages for decedent's pain and suffering/fear of death (the court goes with P on this one). cause of
action survived P. jury q of what he actually suffered
5 BZ: irony. both are statutory, and ct seems to believe is what legislature wanted is concreteness and not too much spread. but isn't the one
that the court allows (for terror experienced by Nelson before he dies) much mushier/broader/speculative than the one it denies (specific
psychiatric costs incurred by mom due to son's death).
6 different jurisdictions will go different directions on each of these issues
ii Vicarious Liability (respondeat superior). Employer responsible for risks endemic to enterprise of employer. CA standard: whether the risk was one
that may be fairly regarded as typical of or broadly incidental' to the enterprise undertaken by the employer. domain of vicarious liability by reference
to whether D was acting within scope of his employment?
a policy purpose: big players with deep pockets both to cover costs and to think through the larger settings, to make changes that will lead to better
safety in society.
b Limitations
1 no double-recovery
2 no vicarious liability for crimes or intentional torts (with some exceptions, like bouncer who beats person for no reason)
3 NOT for independent contractors
c usually, employee remains liable, questions is only whether you're going to add the employer as potentially liable person. adding employer could
make life worse for employee, b/c if you couldn't sue them, P might often not sue at all
d direct vs. vicarious liability (p. 507)
e detours and frolics: a little out of your way is a detour, a lot is a frolic (to determine scope of employment)
f vicarious liability is seen by some as an example of where tort law has strict liability
1 BZ says: if you believe in liability for corporations, then it needs to be through its actions, and it acts through people, so not really strict liability
in his view
g Calabresi: determine vicarious liability by assigning liability to cheapest cost avoider (promote efficient deterrence)
1 theoretical justification for respondeat superior under the idea that torts is about holding people responsible for their wrongs?
Calabresi thinks its a waste of time to think about torts as wrongs. thinks its a mistake. wants to think about what pattern of liability imposition
is going to lead to the best result. mostly its about safety. so how is imposing liability on US going to help with safety? wants cheapest cost
avoider.
h Taber v. Maine, 2d. Cir. 1995, p. 502. drunk navy driver, sues D and navy. Gvt responsible under respondeat superior b/c drinking was incident,
damage was reasonably foreseeable
1 US thought it had good argument that because he wasn't doing something part of his job, they were not responsible under respondeat
superior. used older idea of respondeat superior that required closer relation, saying that person has to be doing something for the benefit of
the employer
2 argument that gvt benefits: part of what makes it ok to work for the military. something the gvt knows about and benefits from (calabresi
believes, and not the only one)
Defenses
i P's Fault/Comparative Negl (partial recovery)/Contributory Negligence
a contributory negligence (old common law doctrine). if P was negligent at all, bars recovery, with some extra doctrines
1 "last clear chance" rule says: if P's Negligence was a cause of injury, P recovers nothing unless timing of fact pattern was such that D had
opportunity, by using due care, to avoid injuring the P notwithstanding P's own fault. P invoking has burden of proof
2 in old workplace injury cases from industrial revolution, Ds claimed that Ps knew how dangerous workplace was, and weren't careful enough,
so if either of those two went through, P recovered nothing
whole new system brought about: worker's comp. legislation through out common law tort actions that people at work could use to sue
employers
under workers comp, strict liability and we know that it's about compensation, so no question of what to do
employers liked it, too
no longer had to pay p+s, punitive
no longer had to spend a lot of time litigating because no fault requirement
judge damages based on table, so no jury trials
3 multiple causes/superseding cause: as long as P played some role, he could not recover
b now, statutory: comparative fault (allocate degree of carelessness), comparative responsibility (allocate liability $$). P's fault must play causal
role in P's injury to diminish recovery. 46 states have some form of comparative negligence (deeply rooted idea that if you're somehow at fault,
inhibits your ability to recover)
1 pure: recover any percent that P is found not responsible for (if P is 90% responsible, he recovers 10%). no matter how egregious P's
conduct, if the injury is bad enough, a lawyer for P might be encouraged to bring a lawsuit. NY.
2 modified: find the amount P negligent and deduct that percent of damage, but if P is more than 50% negligent, he cannot recover anything. P
would not bring lawsuit if he himself had acted really badly. if disproportionality is marked enough, doesn't make sense for our legal system to
try to encourage P to recover
3 to the degree that you think of the tort system as providing compensation as opposed to the blame game, you may think that P's negligence
doesn't matter that much
4 NY Post case: jury believed that P was negligent, but did not believe that he was negligent to a very high percentage
even if this is not a just outcome, it doesn't follow that there is something wrong with our legal system
on the face of it, what happened is that we decide to give this kind of case to the jury, and so the fact that both actors acted carelessly is a
question for the jury on how to split the blame and what the damages are
so if people don't think it's a good outcome, probably we're expressing our view of what we would have done on the jury.
alternative: the old doctrine of contributory negligence (where if P was negligent at all, bar to any recovery)
under old system of contributory negligence, still not obvious that there would have been no recovery in this case. (last clear chance)
5 US v. Reliable Transfer Co. 1975, p. 393. Admiralty case that overrules divided damages in favor of comparative responsibility. allocate
proportionate to degree of fault. only allocate equally when parties are equally at fault or it is impossible to tell
6 Hunt v. Ohio Dept. of Rehab and Correction, 1997, p. 395. Prisoner severed finger in snowblower, is resp. for only 40% of accident.
D (dept of correction) owed duty to warn and instruct, so breached that duty in failing to do so.
P's own negligence (of common sense not to stick fingers in a motor machine) was 40% cause
amount of damages goes to jury
ii Assumption of Risk (p. 404)
a Express Assumption of Risk
1 Tunkle factors to evaluate whether a contract that expressly assumes risk is void. Not strongest for rec. activities, strongest for surgery, etc.
 ii Assumption of Risk (p. 404)
a Express Assumption of Risk
1 Tunkle factors to evaluate whether a contract that expressly assumes risk is void. Not strongest for rec. activities, strongest for surgery, etc.
Duty to the public – if the public has no choice but to consent, agreement becomes adhesion contract; the more something is needed, the
more likely the exculpatory clause is to be void
Nature of the service
Contract entered into fairly (equal bargaining power)
Unambiguous intentions of the party
Publicly regulated industry
2 in public recreational facilities, usually exculpatory contracts are void/not enforceable
3 Jones v. Dressel, Colo '81, p. 404. Exculpatory contract for skydiving/ parachuting is not contract of adhesion (could've paid $50 to escape
waiver), is not contrary to Public Policy (under Tunkel factors). Partial summary judgment for D after P hurt in plane crash.
4 Dalury v. S-K-I Ltd Dev. Corp. p. 409. Exculpatory ski agreements at Killington void as contrary to public policy under first of Tunkel factors (b/
c skiing is such a big deal in Vermont). P injured, had season pass with waiver
b Implied Assumption of Risk (no recovery)
1 NOT that you are doing something careless. finesses the question of whether the activity that P is undertaking to engage in is something that
is negligent to engage in. not necessarily not negligent, just puts the q to the side
2 largely in disfavor. when used, usually swept into comparative negligence.
3 continues to be vital, independent affirmative defense that fully destroys liability in recreational activities (most explicit in NY)
4 Smollett v. Skayting Dev. Corp., p. 414. No recovery on broken wrist from roller skating. Barred by implied assumption of risk (assumes P
knew risk).
woman and husband went skating, observed and asked about lack of handrails, etc. fell and broke her risk. rink asserted she assumed the
risk (P maintains she knew the individual risk but not in combination). At trial, jury verdict and 50% comparative fault. rink motioned for jnov,
denied, appealed
Holding: jnov for rink because Smollett assumed risk. she knew risk, voluntarily entered, therefore assumed risk
question of interplay between contributory risk and implied assumption of risk
P tries to argue that it's a comparative negl case, not implied assumption of risk, but
court here says that assumption of risk can still be applied to non negligent conduct which constitutes waiver or consent but which involved
no negligence, and in such a case is an absolute bar to recovery
circumstance in which you're being exposed to something dangerous. clear by nature of circumstances that you're volunteering yourself for
an activity that exposes you to this risk
Dissent: this is a proof question. there is a real question of fact on whether she knew the risks in combination, not obvious that all reasonable
people would decide one way, and since jury decided for P, we should not disturb
5 Murphy vs. Steeplechase p. 423. Man injured on jerky carnival ride assumed risk, so no recovery. Cardozo threw out the lawsuit on implied
assumption of risk
6 Older nomenclature
Primary: special rule of no duty for certain kinds of activity (usually for recreational sports). q of law
Secondary assumption of risk: affirmative defense.
reasonable (smollett):
unreasonable: folded into comparative fault
iii Implied assumption of risk vs. contributory negligence
a there are cases where its hard to tell whether its implied assumption of risk or contrib negl or both. good D will try to plead both, take both to jury
b in world of contributory negligence, doesn't really matter which it is. If D can prove either one, no recovery.
c in comparative negligence, it does matter. if implied assumption of risk, then no recovery. if you are repackaging P's fault defense as implied
assumption of risk, then court shouldn't buy it.
d some jurisdictions decided to treat implied assumption of risk the same way that P's fault is treated, no longer binary, so Ds can't play this sort of
trick
e more common, more difficult, but BZ thinks more appropriate, for courts to sort it out. Smollett is doing that.
f with both implied assumpt of risk and p's negl, not enough to prove P acted negligently or voluntarily chose the risk, but rather the right kind of
connection between acts that actually occurred and the injury. need to prove that P's action/negligence was cause in fact and proximate cause of
Ps injury
g **key q is if courts disposition to cut off P's claim relates to jury's finding that P actually fully understood the risk and voluntarily undertook the risk
and its decision that that was the kind of risk that people could fully understand and could voluntarily undertake and that ct. wants to cut off.
iv Immunities
a Sovereign Immunity: series of procedural and statutory barriers
1 discretionary function exception (Riley): interpreted broadly generally, whether conduct in question called for employees to exercise discretion
while pursuing the government's policy objectives (Gaubert). policy:
prevent courts from doing too much second guessing (worry about intrusion in tort law of courts in making policy decision)
interest in not having law second guess people, wants law not to put people in a box. don't want liability to go after every decisionmaker.
want cushion around some decisions
2 2 part test on 438
is this a judgment/choice
is this the kind of action it was designed to shield
3 Riley v. US, p. 437. Car accident from placement of post boxes. Recovery barred by sovereign immunity of postmaster. where to put post
box was in his discretionary function, but discretionary function exception "protects only those judgments grounded in social, economic, and
political policy"
b Statutory Immunity (good samaritan statutes, Van Horn)
1 Van Horn case (supp). Woman who pulls her friend out of burning car but accidentally causes paralysis is liable (good samaritan statute
doesn't cover non-medical actions)
A this is the sort of the person that the statute was mean to immunize
B if only medical actions and not non-medical actions seems like it would be problematic in lots of situations
C insertion of words and concepts when they're not there for reasons BZ doesn't think are clear
1 unwillingness to read broadly would make more sense in extending immunity, not limiting it
2 BZ thinks puzzling that they reach out and create more space for P
D majority more sympathetic to point of view that everyone has a moral duty to help out in a non-negligent manner, so read statute narrowly.
she won't necessarily lose bc we don't grant summ judg
E other side (BZ likes): lots of reasons to have good samaritan statutes, including the one the court fails to recognize: that people are drawn
to try to help in emergencies, and we want the law to encourage these motivations, and society is litigious. so statutes about trying to
restore ppl's sense to try to help
 D majority more sympathetic to point of view that everyone has a moral duty to help out in a non-negligent manner, so read statute narrowly.
she won't necessarily lose bc we don't grant summ judg
E other side (BZ likes): lots of reasons to have good samaritan statutes, including the one the court fails to recognize: that people are drawn
to try to help in emergencies, and we want the law to encourage these motivations, and society is litigious. so statutes about trying to
restore ppl's sense to try to help
1 in this read, a narrow read of the statute cuts against what the statute would be trying to do
2 since text doesn't contain description of need to contain medical care, so means we want to support instinct
c Family immunity. exists in some form in all jurisdictions (but gone as a formal immunity). generally lawsuits brought on these issues get thrown
out on no duty issues.
1 different rationales from charitable, and different set of attacks
used to be thought that wives and husbands couldn't sue each other
then was changed to prevent insurance collusion
don't want to hash out family quarrels in courts doing tort law
d Charitable immunity exists in some form in all jurisdictions. used to be thought discourages charitable enterprises by imposing tort liability on
them. now, not thought that a right way to subsidize, and that this would be covered by insurance.
v Preemption Defense. if exhaustively legislated, then there is preemption read in by courts. federal court can look at whether congress intended to
"occupy the field completely" or if there's any room for state court to act. Compliance with federal statute does not preempt state tort suit in
negligence (Wyeth)
i Federal preemption: mostly done if at all by courts, not legislatures. exceptions (done statutorily): federal law on nuclear power plants, aviation,
some others
ii historically, compliance with federal regulations and statutes would be brought to jury as evidence of non-negligence. relevant, but not
dispositive. this is still the black-letter law.
iii like Grand Trunk: pervasive duty of reasonable care, statutes guide
iv Wyeth v. Levine. Compliance with federal statute does not preempt state tort law. No federal preemption of state tort suit by FDA approval of
drug label, Ps can still recover in state court.
1 Demeral and anti-nausea drug; arm had to be amputated with gangrene
2 P sues Wyeth, who knew of other ways to administer drugs besides IV
warned that there's a risk of gangrene with IV push, and did indicate it on the package that other ways are safer
claim against clinic settled
7.5 mil jury verdict against wyeth
D args: jury should have gotten comparative fault defense against clinic
3 D's major arg: federal preemption argument
crazy system where companies can spend millions making sure they have perfect compliance with FDA
no express preemption clause in FDA law, so have to argue that on facts of partic case, conflict between living up to what FDA says and what
state tort law tells them to do (implied preemption arg)
BZ says preemption is perfect defense for this.
Bush puts out preamble saying it sees FDA regs as floor and ceiling (Bush administration loves preemption args), with new set of regs on how
to label products for FDA, so that bolsters preemption argument
Wyeth had suggested changing warning and FDA said not to bother
Wyeth goes to VT supreme ct, takes FDA preamble with Chevron doctrine (deference to agency's determination)
4 if you get rid of all failure to warn claims for all pharma products so long as company has used fda-prescribed warnings, then all pharma
products liability claims are broad
5 VT SCt rules against Wyeth. No broad preemption doctrine in this case
6 Stevens, for majority of five, said no preemption
very pro-plaintiff
lower courts have been moving closer to preemption position, now less valid
not true that federal law closed off opportunity to provide more warning
similar to VT S.Ct. on FDA preamble:
no evidence that Congress thought that FDA screening would be alternative to tort liability. not plausible that Congress was trying to close off
state tort liability
not Cnostitutional or common law decision, but a
7 Thomas says about states rights, no federal preemption of state tort law (boldest anti-preemption opinion)
8 alito says in spirit, stepping back form geier
9 defense lawyers and drug companies say institutional competencies depend on permitting FDA to determine, and not permitting juries to
second guess.
federalism issues
issue: drug company's argument is good
statutory interpretation and separation of powers
v tobacco precedent: federal gvt regulated warning and said state couldn't do any more, state couldn't add reqts (cipalone, predecessor case.
stevens bought tobacco company's arg that they're preempted in failure to warn). for cigarette law suits where an express piece of statute says
that conflicting statutes overruled (no such statute in Geier)
vi Geier v. American Honda Motor Co., 2000, p. 1054. Car crash with P in car that doesn't have airbag. Liability would conflict with federal airbag
phase-in program, so no liability b/c D complied with federal safety standards/ statutes
1 Alleged fault in car has no relationship to why there was an accident. case about how bad P's injury was given that there was a crash.
2 claim: car should've had an airbag, and if it had, P would not have been nearly as badly injured
3 federal gvt was using slow phase-in policy, so case says it would be wrong to impose liability on Honda for failing to put an airbag in during
phase-in period, because that is equivalent of a safe harbor. imposing liability would conflict with government's plan
4 understanding aims of federal scheme would show you that state tort law would frustrate what fed gvt was trying to do
5 here, Breyer is the beginning of a good period for Ds in preemption cases. even where Ds can't show clear conflict, can show frustration of
purpose (like here, amorphous)
vi Procedural Defenses (statute of limitations, etc)
vii Statutory Defenses
Remedies
i damages (main remedy). jury question
a compensatory (core type of damages). jury, normally not reformed by judge unless "shocks the conscience" or "displays passion or prejudice"
1 economic damages. limited by foreseeability of injury, not foreseeability of harm. if some injury was foreseeable, then all resulting injury is
recoverable. (eggshell skull rule). P should be made whole. see notes on coherence
i Smith v. Leech Brain Ltd., QB 1962 p. 463. Worker burned by hot metal causing cancer and death, q of whether to compensate
unforeseeable injuries of cancer and death (yes, because some injury was foreseeable). Extent of liability case (eggshell skull in negligence
damages)
Remedies
i damages (main remedy). jury question
a compensatory (core type of damages). jury, normally not reformed by judge unless "shocks the conscience" or "displays passion or prejudice"
1 economic damages. limited by foreseeability of injury, not foreseeability of harm. if some injury was foreseeable, then all resulting injury is
recoverable. (eggshell skull rule). P should be made whole. see notes on coherence
i Smith v. Leech Brain Ltd., QB 1962 p. 463. Worker burned by hot metal causing cancer and death, q of whether to compensate
unforeseeable injuries of cancer and death (yes, because some injury was foreseeable). Extent of liability case (eggshell skull in negligence
damages)
ii Mustapha (guy who saw fly in delivered water) got huge award ($hundreds of thousands). ultimately reversed. Guy had eggshell psyche,
but BZ thinks only emotional harm (so fails on duty)
2 non-economic damages
i makes damages in US on average much bigger than other legal systems (incl pain and suffering)
ii **single biggest target for tort reformers, esp. legislative. majority of states have some sort of damages reform. many have pain and
suffering caps and/or punitive damages cap
iii Kenton v. Hyatt Hotel Corp. MO 1985, p. 469. P injured when hotel skylight fell in, jury verdict was not excessive, court doesn't want to
micromanage evidentiary decisions
a Issue: should evidence have been let in about the disaster at the hotel? (yes)
P says to show how she was injured
D says not probative, inflammatory
b Issue 2: on admission of expert ev. on law school
c Issue 3: on whether damages are excessive. defer to jury, as long as fair
d P's lawyer who is representing client well will bring jury info to get them to sympathize, to get them to ratchet up the size of the verdict
think about all types of damages
think about past and future
past econ: bills accumulated, lost wages
future econ: future medical bills, lost wages
past and future lost wages, pain and suffering
lawyers did a good job of the above in this case
e D will try to protect against the above. Weren't hard-nosed enough to get a stipulation to stop this evidence in (appealed here)
f appellate court doesn't want to micro-manage how trial court managed evidentiary decision
b punitive damages
1 many states have tort reform here, in the form of punitive damages caps
2 standard: willful or wanton; high negligence, willful blindness or conscious disregard (where court thinks there's knowledge but can't quite get
there); reckless indifference (Restatement §500: wanton disregard or deliberate indifference). common law/state law standards
i Mathias v. Accor Economy Lodging, 7th Cir. 2003, p. 489. Motel knew of bedbug infestation, as did parent company, and did nothing to
make sure rooms were safe. unjustifiably failed to avoid known risk to P, so punitive damages were justified (in proportion to wrongfulness)
as to be effectively deterrent (as based on how bad the action and how often and how likely to be caught), so D's wealth relevant
ii National By-Products Inc. v. Searcy House Moving Co., AL 1987 p. 485. No punitive damages in car accident (where truck slammed
into moving house) because speeding truck with bad brakes was not wanton/willful (only grossly negligent). Dissent: actual malice not
required. reckless/wanton enough, and here at least reasonable minds could differ on that, so go with jury decision
3 D's wealth is relevant to punitive damage award (Mathias)
4 district split on burden of proof of wantonness/willfullness/etc. many use clear and convincing evidence (less than beyond reas doubt, more
than preponderance)
5 Due Process Challenges to Punitive Damages (if punitive damages are grossly excessive)
i black letter law today in US in every jurisdiction: reprehensibility, ratio of punitive damages to actual harm, comparable sanctions (BMW v.
Gore)
ii BMW of North America, Inc. v. Gore, 517 US 559, p. 1001. $2 million judgment (reduced on appeal from $4 million to be only for
Alabama) for Dr. Gore against BMW for small repainting (less than 3% of value; $3k compensatory damages) is grossly excessive and
therefore a due process violation based on three-factor test
iii Problem of damages for parties not before the court (Philip Morris v. Williams)
a In BMW v. Gore, ct. appeals reduced trial court verdict of $4mil to $2mil because it included nationwide behavior (and AL court could
only punish for wrongs in AL)
b Philip Morris v. Williams,SCOTUS '07, p. 1012, ct. says you can't punish for wrongs to parties not before the court, but can consider
their injuries when considering degree of reprehensibility.
widow of smoker sues cigarette company, says Philip Morris misled P's decedent to believe product was safe (negligence and fraud are
core of cause of action)
jury finds Philip Morris guilty of negligence and deceit, awards compensatory damages of $821,000, $79.5 million in punitive damages
punitive damages are available bc of evidence of wilfully misleading
Issue: does DPC allow a jury to base its punitive damage award partly on a desire to punish ppl not before the court? (no)
don't know who all the people are
D can't defend himself against hypothetical Ps
crim law has procedural requirements before punishment, so if we are going to punish, we need protections. responses:
clear and convincing evidence is already used, so greater than preponderance, closer to crim law's beyond a reasonable doubt
no liberty deprivation here, so not entitled to full regimen
Scalia says (in BMW v. Gore) due process is time-dated. We should interpret it as demanding that you get whatever jurisdictions
would have deemed necessary in the 19th c. (when it was invented) when the state took money from you in the guise of punitive
damages.
over the last 20 years (mostly products liability) that disallowed recovering for non-present Ps
on BMW guideposts, is there enough reprehensibility to justify the punitive damages?
SCOTUS looks at reprehensibility
SCOTUS doesn't say anything about the ratio, even though Philip Morris asked for it in cert petition
SCOTUS declined to look at gross excessiveness issue
In state farm v. Campbell, court says anything beyond 1-digit ratio won't fly, is presumptively a problem
in exxon (non-const law case), scotus says ratio above 1:1 might not work
maybe the ratio isn't just to actual harm, but to actual and/or potential harm (Stevens fudges on this in BMW v. Gore).
Now clear that it's supposed to be to actual harm
comparable criminal sanctions
sanctions for murder, etc. are pretty high
What Philip Morris did was engage in massive ad campaign with built-in falsehoods that it knew were false, and got people addicted,
etc. So there is a 'grand bad act' , so figure out right penalty for someone who acted so badly toward so many people.
not for damage to others not before the court (would be a procedural due process problem)
 What Philip Morris did was engage in massive ad campaign with built-in falsehoods that it knew were false, and got people addicted,
etc. So there is a 'grand bad act' , so figure out right penalty for someone who acted so badly toward so many people.
not for damage to others not before the court (would be a procedural due process problem)
instead, here, big fine for how bad the behavior was in the state of Oregon.
ok to add punitive damages for added reprehensibility of conduct, and you can infer added reprehensibility from number of victims
(so can look at non-parties as long as it goes to reprehensibility)
dissenters' problem: too-fine distinction in what we're allowed to look at other victims for. also looks like case is all about looking at
reprehensibility. third, looks like Philip Morris' jury instruction doesn't help the jury figure out the distinction of what they're allowed to
use info about non-parties for. trial judge rejected their jury instructions.
Another case (FORD (Arkin)), Ps said that you SHOULD consider other potential Ps, bc not everyone will bring suit, and the point is to
deter.
It's like class action without a class. But we have class action. If you're going to hold responsible for damages to other people, you
have to litigate those cases and get those injured parties to recover
6 Standard of review for appellate courts is now de novo. so always bite at getting damages reduced. (Cooper)
7 Purposes are now both: (1) private atty general (penalty through medium of private plaintiff who is also looking for compensatory damages as
in BMW) picture; and (2) person looking for ample damages for himself (more than he needs to be made whole)
i punitive damages have been around for hundreds of years in torts for purpose of making injured parties whole
ii mistake to infer that what pun damages has always been is private AG mechanism for juries and states to hit bad Ds with penalties. used
to be vindictive, opportunity for private party to inflict pain on a defendant who has willfully wronged them
iii then, not vengeance but compensation (changing the function). BZ skeptical
iv today, more private AG role. big chunk about individual vindication for those where compensatory damages don't do whole trick. but some
is about having a system of private law that can ratchet up the damages and deter
v change in nature has led SCOTUS to reconsider importance of procedural protections in punitive damages in tort cases
vi lack of guidance for punitive damages is consonant with the idea that where there's a willful wrong, the jury has the discretion to permit
damages that seem just; but needs process if the jury is allowed to pick the penalty
vii Snyder v. Phelps MD 2008 (handout). Court allows punitive damages against Westboro Baptist Church where hate group/church
protested at soldier's funeral, citing deterrence (public law) but clearly contemplating compensation/vindication (private law)
a jury found protest to be hateful, etc., and gave compensatory damages on IIED, invasion of privacy ($2.9 million). punitive damages, too
($8 million).
b because civil conspiracy alleged, each responsible for all actions
c challenge to punitive damages on ratio
d Ps lawyer said to give big verdict so other families don't have to deal with this in the future
Ds are challenging this on if it's an inappropriate use of prospective non-party harm (like in Philip Morris allegation of retrospective non-
party harm), they say it makes it unconstitutional b/c deprivation of property without due process
court says it's fine b/c it's future, not past, so not like Philip Morris
e BZ says here, the "private version" of person looking for more than 'compensatory' to be made whole. it's vindication much more than
public law
c nominal damages
d statutory tort reform
1 some states say non-economic damages can't be more than a certain factor or fraction of economic damages
2 some states have total cap including economic damages
3 some states have punitive damage caps
4 informal tort reform: get judges elected who are sympathetic to cutting down verdicts
ii injunctive relief
a lots of ways, but not the core
b examples
1 nuisance is a tort action
2 recalls
3 medical monitoring
iii (declaratory relief)
C Strict Liability
1 Common Law Strict Liability
i Rylands
ii wild animals (the strict liability before Rylands)
iii blasting (still a big one now)
2 Statutory Strict Liability
i dogs
a Pingaro v. Rossi (NJ 1999) p. 147. dog-bitten meter reader can keep jury verdict, needn't prove that D knew of dog's dangerous propensities
(strict liability for dog owners under NJ statute)
1 not a negligence case because strict liability
2 rare to have genuine strict liability for some areas of torts
3 can have or not have contributory negligence in strict liability claims
4 case not airtight because statute says the person has to be there lawfully, and electric company said they wouldn't go in if D wasn't there
5 statute seems to require choice: don't have do gor be responsible for anything that happens
simplicity for courts and dog owners
ii fireworks
3 Ultrahazardous Activities
i Restatement §519 and 520: strict liability for abnormally dangerous activities. six factors for abnormally dangerous (ultrahazardous)
a high degree of risk
b likelihood that resulting harm will be great
c inability to eliminate risk by reasonable care
d activity is not common usage
e inappropriate activity to place
f weigh value to community against dangerous attributes
ii Rylands v. Fletcher, 1868, p. 825. Miller (D) strictly liable for any result of any non-natural use of land (here, flooding from digging).
a Miller (Rylands) digs on his land and floods mines of miner (Fletcher)
 ii Rylands v. Fletcher, 1868, p. 825. Miller (D) strictly liable for any result of any non-natural use of land (here, flooding from digging).
a Miller (Rylands) digs on his land and floods mines of miner (Fletcher)
b no liability for 'natural use' of land
c bringing something to land which he knows will be mischevious if gets on his neighbour's should be obliged to make good the damage that ensues
from not confining
d Defendant will be liable when he damages another by a thing or activity unduly dangerous and inappropriate to the place where it is maintained, in
light of the character of that place and its surroundings
e BZ: Case is framed by failure of three other causes of action
1 could he have sued in trespass? (is there intentionality to the invasion? prob not)
2 could he have sued in nuisance? (not continuity of flooding; one episode)
3 could he have sued in negligence? (court says it looks like negligence by contractor, but since an independent contractor with no vicarious
liability, Rylands can't be sued). privity problem
f BZ: why don't we do this all over tort law?
g BZ: invasion of a right, rather than a wrong
iii Klein v. Pyrodyne Corp., '91, p. 827. Fireworks company is strictly liable for damages/injuries caused by display because "abnormally dangerous"
a Ps injured when hit by stray shell
b fireworks co had mandatory $1mil insurance
c appeal from summary judgment that strict liability is standard for pyrotechnicians
d Held: Yes, fireworks are abnormally dangerous and therefore subject to strict liability based on factors in restatement
e also: policy. problem of proof
f intervening cause relieves strict liability only if it is unforeseeable (Ds claim of manufacturer's liability is not so)
D Products Liability
1 History/Development (TORT and CONTRACT)
i trio of cases that lead up to Greenman
a macpherson (gets rid of privity for negligence claims)
b escola (coke bottler, 845) (softens up a lot on res ipsa in claims about defective products)
c henningson v. bloomfield motors (NJ 1960) declares car sales contract disclaimer of liability for personal injuries void as against public policy (852)
(gets rid of privity in breach of warranty action for people injured by dangerous products)
i focus on long distributional chain in commercial contracts now
ii Greenman v. Yuba Power Prods., CA '63, p. 854: recovery for defective lathe (in negligence/warranty). first strict products liability
a man injured using lathe that his wife bought him. jury found liability for manufacturer, not retailer.
b claims in warranty and negligence (succeeded against manufacturer, not retailer)
c Traynor says there is sufficient evidence to find that claim was in negligence. Don't know if jury found in negligence or warranty
d Recognizes strict liability for defective lathe, instead of making case in warranty. No privity
e question of notice? Traynor says it's not important because of strict liability
f marriage of negligence and warranty=strict products liability
g Traynor says it's about fixing wrong, not fault
iii Greenman caught on, through Restatement (Second) §402(a), 1965. Chronology of Products Liability:
a Phase after Greenman '63-'72: Pro-P movement *
i permitting bystanders to recover suggests its negligence based
b Phase 2: '72-mid-'80s: market share liability, design defect cases (Strict Products Laibility with a vengeance). class actions, punitive damages,
i SCOTUS gets into Daubert and punitive damages, and standards for saying that a product is defectively designed
c Tort Reform
d Restatement Third: products liability is just a variation on negligence, not strict liability. pulling back
2 Elements
i P was injured
a protects bystanders (on the basis of foreseeable risk) (Greenman)
b bodily injury or property damage, NOT pure econ harm
ii D was commercial seller (manufacturer, distributor, retailer, etc) of product
a leased products count
b product is fuzzy category but does NOT include
i real property (although manufactured homes, winnebagos, count)
ii human body parts
iii used products sold by previous owners
iv usually live animals
v textual materials (but sometimes faulty maps)
iii product was defective at time of sale
a manufacturing defect (Escola; lemon): defective when product left factory
i Gower v. Savage Arms, Inc. (E.D. Pa. 2001, p. 876) All types of defects alleged, only two are feasible claims (existed when product left
factory), must exist at time that product leaves factory to be feasible claim.
Gower was out shooting when he shot himself in the foot. Four defects claimed:
Unloading defect: The rifle could not be unloaded when the safety was on. Court rejects the unloading defect because it wasn't causally
related to the injury. Gower wasn't trying to unload the rifle at the time that he shot himself. Court grants D SJ on this.
Insufficient Warnings: The rifle didn't come with sufficient warnings. Court rejects the insufficient warnings on two grounds, first, that Gower
was admits he was aware of the danger of the rifle, and second, that rifles were shipped from the factory with manuals, even if Gower himself
did not receive one. Court grants D SJ on this.
Detent defect: The rifle didn't have a detent system which would have made it stay in the safety position.
Manufacturing defect: The rifle was manufactured with a metal ridge not usually present which made engaging the safety more difficult.
ii Escola v. Coca Cola, CA '44, p. 845. Waitress injured by exploding coke bottle wins against bottler on res ipsa (in negligence). Traynor
concurrence advocates for for strict liability, as opposed to relaxing requirements of res ipsa
P was injured when transferring coke bottles from tray to fridge; lost fingers, messed up nerves, sued coca cola bottling company (not
employer, coke, etc). jury verdict for P (on res ipsa theory)
Issue on appeal: whether res ipsa loquitur applies when bottles had been sitting there, temperature changes, motion, (relaxing requirements
of exclusive control)
 ii Escola v. Coca Cola, CA '44, p. 845. Waitress injured by exploding coke bottle wins against bottler on res ipsa (in negligence). Traynor
concurrence advocates for for strict liability, as opposed to relaxing requirements of res ipsa
P was injured when transferring coke bottles from tray to fridge; lost fingers, messed up nerves, sued coca cola bottling company (not
employer, coke, etc). jury verdict for P (on res ipsa theory)
Issue on appeal: whether res ipsa loquitur applies when bottles had been sitting there, temperature changes, motion, (relaxing requirements
of exclusive control)
The court doesn't agree that nothing could have happened, but there is enough evidence that nothing actually happened
The court says that evidence is good that glass manufacturer tests for bottle integrity is 'pretty near infallible'
Under Res Ipsa, jury needn't find for D, just rebuttable presumption
Traynor, famous concurrence, that res ipsa case is too weak. Thinks that its right to come out for P, but giving it to jury means we know it will
come out for P. If we think reasons are good enough for Ps to win in this kind of case even if they can't reach evidentiary bar, let's just call it
strict liability and be open about it
b design defect (Cepeda, Barker, Soule)
i Consumer Expectations Test: if the product disappoints ordinary consumer expectations
some jurisdictions
CA has said you can't use the argument that everyone knows it's dangerous
In CA, limited to circumstances when ordinary consumer would really know what to expect (Soule), so no expert testimony
ii Risk Utility Test: risks of design outweigh utility
Restatement Second defined design defect, and chose it as the major form, and chose risk-utility as the test for it
majority position
Most famous case of design defects: Ford Pinto gas tank was placed in the back and would explode on light impact. Ford knew this would
happen, and did it only on a cost/benefit analysis to save a few dollars a car.
corporations believe risk utility is less discretionary than consumer expectations, and can create a record with risk utility
iii some courts still do a disjunction or a hybrid. Restatement 3d says that P has to show that there is a reasonable alternative design (pro-D)
Barker v. Lull Eng'g Co. (Cal. 1978, p. 901). Injured construction machinery operator. Court rejects 'unreasonably dangerous' and allows
either consumer expectations or risk/utility test
Facts: Barker was injured at a construction site when he operated a loader on steep terrain and the load tipped. He leapt from the loader
but was hit by a falling piece of lumber. Jury returned verdict for the defendant after an instruction that defendant was liable if the product
was unreasonably dangerous.
Holding: A product is defective in design either if 1) the product has failed to perform as safely as an ordinary consumer would expect
when used in an intended or reasonably foreseeable manner, or if 2) in light of the relevant factors, the benefits of the challenged design
are outweighed by the risk of danger inherent in such a design.
Opinion: "Unreasonably dangerous" test is an unreasonable bar to recovery, in defective design cases as well as manufacturing defect
cases. The appropriate test is hindsight, in addition to ordinary consumer expectations. Balancing tests are impossible to avoid.
Reasonable precautions do not matter.
BZ: There are really three tests here: 1) Is the design one that makes the product unreasonably dangerous for its intended use (trial
court), 2) Is the design one that makes the product more dangerous than an ordinary consumer expects, 3) Does the product fail a risk/
utility test? Holding says plaintiff is entitled to proceed under either Test #2 or #3.
Soule v. GM (Cal. 1994, p911) Risk utility test must be used when consumer expectations test doesn"t work (as in sophisticated products).
Shift to judge choosing which test, instead of P
Facts: Soule got into a crash, and her wheel collapsed, which caused it to crumble part of the car and break both of her ankles. She sued
GM, saying that the collapse of the wheel was a manufacturing defect and a defective design. Jury, on the ordinary consumer
expectations standard, found for plaintiff and gave her 1.65 mil.
Holding: The ordinary consumer test should be limited to circumstances when an ordinary consumer really would know what to expect,
and the cost-benefit test should be used in cases like this, with lots of nuanced expert testimony. However, in this case, the error was
harmless. SO GM lost, but corps in general won, b.c now you have to use risk utility test for sophisticated products. if you're going to use
consumer expectations test, can't have expert testimony
Opinion: Barker meant for the second prong to be obligatory, since sometimes the first prong simply doesn't work and will lead to runaway
jury verdicts. However, almost all of the testimony at trial was about the costs and benefits, so the jury probably really didn't consider the
other test too much, so the error is harmless.
Zipursky: Change from Barker: judge chooses which test is used, instead of plaintiff. Anytime the jury needs experts to explain the design
to them, the consumer test (Test #2) can"t be used and the risk/utility must be used.
Cepeda v. Cumberland Eng'g Co, (NJ '78, p. 886). Guy loses finger in pelletizing machine without safety shield. Manufacturers cannot
escape liability on grounds of 'misuse'/abnormal use if the actual use proximate to injury was objectively foreseeable. No contributory
negligence in strict products liability, but can have assumption of risk. Judge Wade's conception of design defect includes hindsight: "so likely
to be harmful to persons or property that a reasonable prudent manufacturer who had acutal knowledge of its harmful character would not
place it on the market."
iv Products Liability for Prescription Drugs: Different Approaches (design defect for a certain kind of product)
Comment k, R2 § 402A: provides an exception from strict liability when a product is deemed to be “unavoidably unsafe.” Two interpretations
of this:
Comment (k) Selective Exemption: allows D to prove that product is too socially valuable to be subject to strict liability on a case-by-case
basis
Courts should be open to the possibility that some products will carry unavoidable unsafe risks to the consumer (more than the ordinary
consumer would know)—but the product has tremendous social value and cannot be made in a way that is really going to be safe.
Application of comment k has been justified in some jurisdictions as a way to strike a balance between a manufacturer"s responsibility
and the encouragement of research and development of new products.
Seller of product shouldn't be held to strict liability for unfortunate consequences attending their use, merely b/c he has undertaken to
supply the public with an apparently useful and desirable product, attended with a known but apparently reasonable risk.
Most jurisdictions apply on a case by case basis, (societal interests in ensuring marketing and development of prescription drugs will be
adequately served without the need to resort to a rule of blanket immunity). Majority of jurisdictions use k as an affirmative defense,
with the trend toward the use of risk-utility in order to determine whether the defense applies
Comment (k) Blanket immunity: total immunity for prescription drugs from strict liability for design defects
most conservative, pro-D route to take.
A few jurisdictions have interpreted comment K in a manner that strictly excepts all prescription drugs from strict liability.
Under the minority view, a drug that is properly manufactured and accompanied by an adequate warning of the risks know to the
manufacturer at the time of the sale is not defectively designed as a matter of law.
Purposes/Reasons
Institutional Confidence issue: may not trust that the jury will take the benefits as enough (not trusting them to do risk-utility test
accurately)
May fear that even having the risk of these things going to court and occasionally win for P will drive up the cost of these products
May have serious qualms about the cost-spreading rationale for this product—not socially beneficial.
Cases
 Purposes/Reasons

May have serious qualms about the cost-spreading rationale for this product—not socially beneficial.
Cases
Freeman v. Hoffman La Roche, Inc. (Neb 2000), p. 944: apply comment k (limiting strict liability for prescription drugs) on a case-by-
case basis as an affirmative defense against the 'consumer expectations' allegation.
trial court threw out the whole thing on demurrer, with D's argument that it deserved more than blanket immunity
court got so angry that it said that it no longer deserved blanket immunity, and was reduced to case-by-case
P suffered injury as a result of taking Accutane, designed, manufactured, wholesaled, retailed, fabricated, and supplied by D.
Liability arises when an article a manufacturer has placed in the market, knowing that it is to be used without inspection for defects,
proves to have a defect which causes injury rightfully using the product.
Use Comment K on case by case basis as an affirmative defense against consumer expectations and don't use Section 6 of
restatements b/c too strict (recovery would be nearly impossible)
Court here denies the 3rd Restatement Provision that the ALI adopted. You might be able to argue assumption of risk here.
*Conditions for Exception to Apply
product is properly manufactured and contains adequate warnings, and
its benefits justify its risks, and
the product was at the time of manufacture and distribution incapable of being made more safe.
Brown v. Superior Court (CA), p. 942: D-friendly, disallows the standard design defect tests under certain conditions. Pharma should
be treated differently b/c some products are unavoidably dangerous. Ps can only sue under mfg defect, negligence, warranty,
misrepresentation, or failure-to-warn
P-unfriendly rule for use of PL theories for prescription drugs:
A P alleging injuries caused by use of a prescription drug
Sold by the seller with adequate warnings of health risks
that are posed by the drug"s use, and
of which the seller knew or should have known at the time of sale,
May not invoke either the consumer expectations test or the risk-utility test to impose liability on the seller.
Don"t want to use risk utility for drugs because we don"t want to keep all these products off the market. in general don"t want to
penalize the medical profession too much
R3 § 6 and the Reasonable Physician Standard: whether reasonable providers knowing the foreseeable risks and benefits would prescribe it.
(No state courts have adopted this provision)
c FAILURE TO WARN or instruct (Anderson): likely on exam. most pharma cases
i applies to warnings or instructions, applies to verbal materials that accompany a product. can use on anyone who is seller of product
Failure to warn cases assert that the product is defective because it should have been delivered with more information for consumers about
the dangers associated with it and how to use it safely.
fundamental concept: because of attribute (warning/instructions), product is viewed as dangerously defective
don't need to warn of obvious dangers
BZ says can be very pro-P
all about things that are on paper: express waiver
ii most jurisdictions treat it as products liability, not negligence. (at least for the purposes for statute of limitations or damages rules, or etc etc)
iii Risks that Require Warnings
Knowledge—either actual or constructive—of the product"s risks is a requisite for strict liability for failure to warn. jury q
Unlike design and manufacture defect, for failure to warn you DO look at the manufacturer/seller"s conduct.
To make manufacturer liable for risks they couldn"t know about would be to make them an insurer—which they are not.
Strict liability for failure to warn requires proof that the D failed to adequately warn of the risk not just when the risk was known or knowable
but also when the failure to warn renders that product unsafe to users.
Anderson v. Owens-Corning Fiberglass, CA '91, p. 957 : in asbestos case, D must have knowledge of risk or risk must be scientifically
knowable at the time and D should have known
P sues for exposure to asbestos on failure to warn claim. (he worked there from '41 to '71)
D wants to present “state of the art” evidence that at the time of manufacture and sale, there was no scientific knowledge concerning
the risks of asbestos—the risks were not and could not be known and therefore could not be warned about.
CA Supreme Court says risk must be known or reasonably scientifically knowable at the time in order for strict liability for failure to warn
to apply.
D allowed to present state of the art evidence to show risk was not known or knowable by the application of scientific knowledge
available at the time of manufacture. If couldn"t have known abt the dangers – don"t have to warn abt it.
Black Letter Law: Failure to warn of obvious dangers is not actionable.
(Rationale: Fear of slippery slope—so many obvious dangers, we don"t want to have to warn about them all.
(Maneely v. GM (note p. 964): Ps sleeping in back of pick-up truck on highway, thrown from truck and paralyzed. SJ granted for GM—no
obligation to warn of obvious risks of forcible impact associated with riding in bed of a pick-up truck.
Sophisticated Users: Manufacturer"s duty to a “sophisticated user” will be narrower, because certain risks that will not be obvious to the
layperson may be obvious (or at least reasonably discoverable) to the sophisticated user. See House below.
Restatement 3rd §2: A seller need not warn of every known or knowable danger that is not obvious. Whether a warning is required
involves whether the omission of the instructions or warnings renders the product not reasonably safe. (warnings are not a substitute for
the provision of a reasonably safe design)
Whether a product is rendered “not reasonably safe” is normally for the jury to decide.
Livingston v. Marie Callender!s Inc (p. 965).: Seller may reasonably assume those with common allergies will be aware of them, and
he is not required to warn against them. Where the product contains an ingredient to which a substantial number of the population are
allergic, and the ingredient is one whose danger is not generally known, or if known is one which the consumer would reasonably not
expect to find in the product, the seller is required to give warning against it, if he knows or should have known of the presence of the
ingredient and the danger.
iv Adequacy of the Warning: (jury)
Factors courts focus on:
Content and comprehensibility
Intensity of expression
Characteristics of expected user groups.
(a) placement and prominence of the warning on the product itself and/or in accompanying packaging or instructional materials
(b) nature of the risks posed by the product
(c) extent to which the risk and its consequences, if realized, are defined and communicated by the warnings
(d) precautions that can and should be taken in light of the warnings
 Factors courts focus on:

Characteristics of expected user groups.

(c) extent to which the risk and its consequences, if realized, are defined and communicated by the warnings
(d) precautions that can and should be taken in light of the warnings
(e) whether the warning is given in conjunction with other information that might cause confusion or a downplaying of the danger
(f) what the seller knows or should know about likely reactions to the warnings.
Inclusion of a warning will not necessarily relieve the manufacturer of liability for injuries under a failure to warn theory. Warnings and
instructions must be adequate to notify the consumer of the existence and nature of the hazard at issue.
Issue of adequacy is normally for the jury
Schwerer v. Union Oil, p. 966: industrial solvent contained warnings about wearing gloves and mask, but no warning of liver disease, which
is what P got, so he got to go to jury; adequacy of warning is issue of fact for jury
P sued manufacturer and distributor of solvent he used at work after suffering liver damage from inhaling and touching it. Undisputed that
Ds provided safety materials to P"s employer, which contained warnings about what protection users should wear when working with the
solvent. Indicated contact could result in rashes, and asphyxiation among other things.
Questions to ask of D: do they warn of everything? is the warning adequate, is it sufficiently prominent and scary and clear??
adequacy of warning is issue of fact
have to prove that failure to warn is cause of injury, and that, had the warning been adequate, things would have come out differently (as
in motus and wyeth)
Court would not grant SJ—said liver disease is much more devastating than rashes. D knew about risk of liver disease and failed to warn
about it, so Ds have not shown the warnings were adequate as a matter of law.
v To whom should warning be given?
If the product is an ordinary consumer product, any required warnings must be conveyed directly to the consumer through labels on the
product and/or in accompanying packaging or instructional materials.
Learned Intermediary Doctrine: When product alleged to be defective for lack of adequate warning is a prescription drug, tort law generally
obliges seller to provide warnings and instructions only to the prescribing physician, not the consumer.
Rationale: as a medical expert, patient"s prescribing physician is in the best position to evaluate the often complex information provided by
the manufacturer concerning the risks and benefits of its drug or product and to make an individualized medical judgment based on the
patient"s particularized needs and susceptibilities, as to whether the patient should use the product.
Restatement 3rd §6(d) incorporated the learned intermediary doctrine, and also an exception for when the manufacturer knows/has
reason to know health-care providers aren"t in position to reduce risk of harm in accordance with the instructions, so duty is directly to the
consumer. "A prescription drug or medical device isn't reasonably safe due to inadequate instructions or warnings if reasonable
instructions or warnings regarding foreseeable risks of harm are not provided to:"
prescribing and other health-care providers who are in a position to reduce the risks of harm in accordance with the instructions or
warnings; or
The patient when the manufacturer knows or has reason to know the health-care providers will not be in a position to reduce the risks
of harm in accordance with the instructions or warnings; so duty is directly to consumer
so most pharma cases should be failure to warn
Exceptions: Ps suing for certain prescription medicines have sometimes succeeded in arguing that warnings ought to have been given
directly to consumers.
MacDonald v. Ortho Pharmaceuticals: manufacturer owes duty to warn the consumer directly of the health risks associated with use
of contraceptive. For some drugs, the manufacturer may have direct duty to consumer. This has only been found for contraceptives,
but can arguably be applied elsewhere.
Perez v. Wyeth Labs: When a drug manufacturer advertises directly to patients, it can incur liability for failing to include adequate
warnings of health risks in the advertisement itself.
vi Causation (heeding presumption)
Like manufacturing and design defect claims, Failure to warn action requires the P to prove that the defect (absence of adequate warning)
actually caused the plaintiff"s injury.
Unlike the other two sorts of defect cases, the application of cause- in- fact to failure to warn cases necessarily raises the speculative
question: would someone have selected a different course of conduct if different or greater information or warnings had been provided?
the heeding presumption,
Most jurisdictions have the Heeding Presumption (§402A of R. 2nd, comment j) that if instruction would've been given, P would've followed it
(rebuttable, shifts burden of proof)
Once P establishes the manufacturer provided inadequate warnings, the burden shifts to the defendant to show that an adequate warning
would not have been heeded. (Ps are entitled to a rebuttable presumption of causation—like res ipsa.)
Rationale: Hard for P to prove that had there been an adequate warning, the accident wouldn"t have happened, but part of the reason for
creating strict product liability was to even the playing field between P and D.
Restatement 3rd implicitly rejects the heeding presumption by saying P bears the burden in products liability, like in other torts.
Some products liability suits involve allegations and proof of egregious wrongdoing. But, many courts have adopted the heeding
presumption, and some have stretched beyond it, often bordering on pure cost-spreading approach to product liability—where D did
nothing obviously wrong but is well positioned to bear the cost of a hapless victim"s injuries.
East Penn Mfg. Co. v. Pineda (note, 951): P, mechanic, suffered acid burn from car battery that exploded, and sued for failure to warn.
D rebutted the heeding presumption by presenting P"s admission he didn"t read the label on the battery. Court allows for compensation,
saying even if HE wouldn"t have read the warning, one of his co-workers might have and then warned him.
Ayers v. Johnson & Johnson (note, 951): baby inhaled baby oil and becomes retarded. Parents sue for failure to warn about risk of
inhaling. Judge allows to go to jury which finds for P, despite fact other warnings were present, just not about inhalation.
Motus v. Pfizer Inc., 9th Cir. 2004: Wife sues Zoloft maker for failure to warn of increased suicide risk, after husband commits suicide while
on drug. Says D should have given more information to the doctor about the risk. Pfizer wins SJ motion on causation because doctor admits
warning wouldn't have made a difference: he already knew of increased risk of suicide, and would have still prescribed.
applied the learned intermediary doctrine; thus manufacturer discharges its duty to warn if it provides adequate warnings to the physician
about any known or reasonably knowable dangerous side effects, regardless of whether the warnings reach the patient
The issue was causation (they use the substantial factor test); Heeding presumption.
But note, the P has to show causation (the relaxed causation standard we use for strict liability)
The question wasn't "did the drug cause the suicide?" instead, it's whether the warning would have made the doctor act any differently
vii Wyeth v. Levine '09
Facts and PP
P went to clinic for migraine, got IV of Phenergen, which caused gangrene and eventually amputation of arm
P sued in Washington Superior Court for inadequate labeling, won $6mil from jury
D said it was impossible to meet VT common law standards and FDA standards, and that state claims would interfere with the FDA
Superior Court jury instructions: FDA compliance could be considered but did not establish adequacy of warning
VT supreme court upheld, saying FDA was a minimum and state tort law wouldn't frustrate its objectives
Held (Stevens): FDA approval of warning labels on prescription drugs does not bar state tort lawsuits
 vii Wyeth v. Levine '09
Facts and PP

VT supreme court upheld, saying FDA was a minimum and state tort law wouldn't frustrate its objectives
Held (Stevens): FDA approval of warning labels on prescription drugs does not bar state tort lawsuits
Congress did not intend to bar state law failure to warn suits
drug companies are primarily responsible for keeping their labels up to date and complete
FDA should police more closely
FDA should have clear mandate from Congress if it is going to try to eliminate state court lawsuits
Stevens recounts FDA's capacity problems
Thomas concurrence: only explicit statutory language can have a preemptory effect, and courts will only defer to agency regulations with the
force of law (again, backed by explicit Congressional intent)
iv defect was cause in fact and proximate cause of P's injury
3 Defenses: all negligence defenses except assumption of risk
4 Damages: same as for negligence
i compensatory (pecuniary and non-pecuniary)
ii punitive (if wanton or willful)
5 Indemnification
i statutory
ii contractual
iii equitable
6 Justifications
i systemic reasons pertaining to access to proof that make res ipsa not generous enough
ii clean line between evidentiary access strength of D's position and evidentiary access Ps position that we should have a stronger tool for litigation.
"res ipsa plus"
iii as a policy matter, design system to put fire under the feet of the manufacturers
E Expert Testimony
1 4 Daubert factors (codified now in federal rules of evidence 702), not just for scientists, for any expert witnesses
i theory/technique must have been tested
ii it must have been subjected to peer review
iii rate of error of theory or technique
iv how widely accepted in scientific community
2 needn't be generally accepted
3 D's use Daubert motions to slow down litigation
4 Daubert v. Merrell Dow Pharma, SCOTUS 1993 (p. 992). Under gatekeeping idea of Federal Rule of Evidence 702, expert testimony must be: (1)
based on a reliable foundation, and (2) relevant to the task at hand. "Pertinent evidence based on scientifically valid principles will satisfy those
demands."
5 Aldridge v. Goodyear Tire and Rubber (1999), p. 242. Expert testimony inadmissible under Daubert in case against tire plant for injury from chemicals
F Review Session
1 Major Torts
i Battery, Assault, IIED
a Battery
1 what is touching?
2 what is offensive?
3 intent to touch or intent to harm
4 procedural issues vs. statutory interpretation
5 transferred intent (several flavors)
6 damages issues
b Assault
1 relation to battery
2 imminence
3 apprehension
4 extrasensitivity
5 words alone
c IIED
1 elements
2 outrageousness defined (clinton, mulberry, littlefield)
3 classic examples
4 intentionality limited
5 severity of distress
6 jury issues
7 procedural issues
dickens vs. puryear
littlefield, with statutory civil rights
d Defenses
1 consent
2 self-defense
3 potentially other kinds of defenses that are in the notes**
4 no assumption of risk or comparative negligence for intentional torts
ii Negligence
a duty
1 general duty for physical harm and misfeasance (heaven, Macpherson, Mussavind)
exceptions: Strauss, others?
Nonfeasance (Osterlind), general rule of no duty, plus exceptions
landowner: different. tri-cotomy or Rowland (gets rid of trichotomy)
2 pure emotional and economic harm (general rule of no duty)
ii Negligence
a duty
1 general duty for physical harm and misfeasance (heaven, Macpherson, Mussavind)

landowner: different. tri-cotomy or Rowland (gets rid of trichotomy)

2 pure emotional and economic harm (general rule of no duty)
economic: no duty, Aikens
Emotional: no duty, Gottshall
caveats: parasitic on an underlying physical injury and intentional
exceptions: special relationshipss, impact, zone of danger, bystander, highly foreseeable (People Express)
b breach
1 issue of fact for jury (ON EXAM)
2 hand formula
3 judge/jury (Martin v. Evans)
4 ordinary care (one of many standards). main position, but some jurisdictions can go up (ie common carriers) or down (Brown)
5 Reasonably prudent person under circumstances: what jury instructions look like (jury is also supposed to look at P's fault)
6 objectivity (Vaughan) and qualifications
7 TJ Hooper (industry standard not dispositive) and anti-TJ Hooper rule (for medical malpractice)
q of how good juries are at figuring things out
8 custom vs. regulation (both reach at competency)
9 med mal variations (community matters, experts and informed Consent)
10 Hand Formula (P, B, L). use if:
if your'e asked to take a lawyer's role
if you're asked why something should go to the jury
11 Res Ipsa (3 factors)
12 Negligence Per Se and Sec. 286
c causation
1 fact issue
2 cause-in-fact
fact issue for jury
but-for (Square D)
Daubert and But-for (lawyers use daubert and tough standards on expert testimony to buttress their case on cause in fact) (Aldridge, Gower).
study relationship of cause in fact and daubert
Variations
a 2 Fire (st. Paul) where they go to substantial factor for cause in fact
b loss of chance: Falcone: change definition of what injury is to get over not being able to get up to 50%
c Summers
d Market Share Laibility: Sindell (just changing burden of proof)
3 proximate cause
directness (polemis)
foreseeability (wagon mound and jolley)
scope of risk (allbritton, jolley, victor)
majority of courts use the word foreseeability, guided by scope of the risk concept
Realist (Gestalt, Andrews): foreseeability is a policy concept that has no meaning in itself
Superseding Cause (Pollard, Clark)
4 Defenses to Negligence
Comparative Negligence (a couple still do contributory negligence)
a modified comparative negligence
b if he wants contributory he will say so
c comparative negligence *is* a defense in products liability
a how can you compare negligenec of P to action of D
b as a policy matter, we did this to get away from neg
c daly: compare faultiness of product to negligence of P
Assumption of risk (express and implied)
a implied assumption of risk: Tunkel, mostly recreational activities
sovereign immunity
other immunities
preemption (Geier, Wyeth)
other defenses not discussed but statutory
can't use comparative negligence or assumption of risk in intentional torts
d injury
e vicarious liability
1 vertical and horizontal
2 scope of employment (different tests). calabresi: broad test
3 benefit of employer (outdated)
4 characteristic activity
5 detour vs. frolic
6 independent contractor
7 intenti
8 no vicarious liability for independent contractors
f wrongful death and survival
1 difference between statutes
2 categories of damages
3 loss of consortium
4 identity of plaintiff
g Compensatory Damages**on exam
1 eggshell skull (vosburg, leech brain)
2 past and future
3 pecuniary and non-pecuniary
 g Compensatory Damages**on exam

2 past and future

3 pecuniary and non-pecuniary
4 pain and suffering
5 tort reform
capping damages
messing with joint and several liability
messing with collateral source rule
6 collateral source
7 subrogation
8 jury issue
h Punitive**a lot he wants us to know
1 can have when willful or wanton. common law. searcy. common law on when they're excessive and on what the jury should think about
2 review for excessiveness (BMW v. Gore, three-part test) and Cooper, court should de novo review
3 jury considerations
4 bmw test
5 williams test
6 procedural differences
some jxes don't have vicarious liability for punitive damages
issues with products liability law
i NIED
iii property torts
a trespass
1 elements
invasion, normally by action, of another person's right to be exclusive of their property, by an intentional act
tangible
possessory interest
real property
2 defenses
consent (think about scope of defense)
self-defense (defense of property is a defense for assault)
necessity
b nuisance
1 continuing unreasonable interference with use and enjoyment
2 examples (penland)
3 sturges
4 bloomer and injunction (right to injunction once you prove it, but the right is not absolute)
c (trespass to chattels and conversion)
iv strict liability
a Rylands
b Theory of Tort
c Classic examples: wild animals, blasting
1 Pingaro, dog bite statutes
d Kelin and Restatement 2nd 520 (829): framework to use if you get a strict liability case
v products liability
a development
1 Escola rationales
2 Henningsen plus macpherson
3 greenman merging of two ideas
4 comes partly from negligence once privity is peeled away and from warranty once privity is peeled away
5 Content of restatement 402A
6 Defectiveness is now the key
b Defect
1 manufacturing
2 design
consumer expectation vs. risk utility
barker version
soule version
restatement version
strategic pros and cons
reasonable alternative design?
restatement third version: most important thing to know: puts burden on P and requires that P prove feasible alternative design
3 failure to warn
omission renders it dangerous
non-obvious
adequacy of risk
causation
policy conerns
difference from negligence
state of art: foreseeability is always the test
c Pharma
1 comment k
2 learned intermediary
3 preemption
2 Other Topics
 c Pharma

3 preemption
2 Other Topics
i damages (including constitutional problems)
ii wrongful death statutes
iii principles of vicarious liability**, apportionment
iv institutional and procedural questions
v theoretical perspectives