1. Proximate Cause a. Physical Injury Ryan v.

. NY Central RR (NY 1866): RR started a fire that spread to s house and then on to others. No recovery for , damages are too remote. That the fire should spread is not a necessary or usual result. The result depends on accidental circumstances, such as degree of heat, state of atmosphere, condition and materials o the adjoining structures and the direction of the wind. cannot be held responsible for these circumstances. If Z cant recover then A cant recover. Narrow interpretation of ordinary and natural result. Seen as arbitrary. Idea that wind and similar factors intervene is generally rejected. Coase: Every harm is shared. If the land was not well kept or prone to fire, this can affect liability. Least cost avoider: if it costs $100 for the RR to install spark guards, and $10 to clear land, then the land should be cleared. Smith v. London & South Western RR- RR held liable for fire that caught on RRs piles of grass trimmings and spread to s cottage. Piles deemed negligent so RR was responsible for the resulting damage. City of Lincoln v. Albatross: found that the acts of the cause the damage in a way that such a consequence as in the ordinary course of things would flow from the act. Jones v. Boyce- a forced to act in a dangerous manner by and hurt, will be liable. Mauney v. Gulf Refining Co- Contradicts Boyce and Tuttle, by saying that if the accident was not foreseeable by the , then they are not liable. This is narrow def. of foreseeability as Williams says The test of foreseeability does not require all the details of what happens to be foreseeable; it is enough if it is foreseeable in general outline Berry v. Sugar Notch Borough (PA 1899): was speeding on a street with a weak tree during a windstorm. The tree fell on the car, injuring . Judgment for , court rules that s speeding does not affect right to recover as it was not a cause of the harm. Gorris v. Scott: Similar to Berry, the unpinned sheep washed overboard; no liability because statute not designed to prevent this loss. Coincidence principle: negligent behavior does in increase risk. Accident is coincidental. Dillon v. Twin State Gas & Electric: trespasses on bridge, and falls from girder. , power company, installed wires without safety coating running along bridge. fell from bridge and was killed by electric shock from wires. is liable for negligent installation of wires. If would have died anyway, damages are limited to those caused by shock. If would not have died, damages are the difference between value of life lived without shock and with shock. Hypo: ship is headed to Mars Colony Omega. If someone negligently kills a passenger on the way to the ship, but then the ship explodes anyway, does this mean the person is not liable for the death? No, the passenger might decide not to get on the ship anyway. Think about it the other way around: what if negligently hits s car on her way to launch. is not hurt, only delayed, and misses take off. Ship explodes. Can recover the damages avoided by ? No.

 Prince: RR takes woman too far and puts her in hotel. A lamp explodes. not liable for harm since this could have happened at any hotel. Coincidence principle. Hines v. Garrett: RR took past her stop, she was raped twice on her walk back to her last station. held liable, area was obviously very dangerous. Sometimes a court will conflate damages and liability because the damages are exorbitant. Hypo: house full of Ming vases catches fire: There is the Vosburg argument, but maybe the owner should have insured them or put them in a museum. If they were in a museum then the RR would know to be careful there. Brower v. NY Central & Hudson RR (NJ 1918): RRs negligence in crashing into cider cart is not negated by the thieves that stole the cider. The thieves were intervening actors, but the theft was foreseeable, so the RR is liable by proximate cause, especially since they had two armed detectives guarding their cars. Dissent: The intervening act here was unforeseen and so RR should not be liable. Watson v. Kentucky and Indiana Bridge & RR: Endorses Brower dissent. The Second Restatement Approach Two positions on third party intervention on 2nd restatements substantial factor test 448- The first actor is not negligent for the conduct of an intervening actor, unless the actor should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime. 449 If the likelihood that a third person may act in a particular manner is the hazard that makes the actor negligent, then that second act, if it is innocent, negligent, intentionally tortuous, or criminal does not prevent the actor from being liable for harm caused as a result. 442B. Intervening Force Causing Same Harm As That Risked By Actors Conduct. Where the negligent conduct of the actor creates or increases the risk of a particular ham and is a substantial factor in causing that harm, the fact that the harm is brought about through the intervention of another force does not relieve the actor of liability, except where the harm is intentionally caused by a third person and is not within the cope of the risk created by the actors conduct. 281: If the actors conduct creates a recognizable risk of harm only to a particular class of person, the fact that it causes harm to a person of a different class, to whom the actor could not reasonably have anticipated injury, does not render the actor liable to the persons so injured. Restatements position is that the should be liable because the third party exploited the dangerous condition created by the . Watson was repudiated by Britton v. Wooten (fired worker ignited RRs spilled gasoline, criminal intent did not matter, only the foreseeability of the act) which did not relieve the for stacking flammable materials outside of a grocery store, though arson may have been the igniting factor. The Third Restatement Approach 29: An actors liability is limited to those physical harms that result from the risks that made the actors conduct tortious When a force of nature or an independent act is also a factual cause of physical harm, an actors liability is limited to those harms that result from the risks that made the actors conduct tortuous

Comments: despite the continuing influence of the 2nd restatement of Tortsthere is now recognition that there are always multiple causes of an outcome ad that the existence of intervening causes does not ordinarily elide a prior actors liability. However, application of either typically shows no difference between the two restatements, so it is unclear if the 3rds language will replace the ingrained usage of the 2nds. Wagner v International RR (NY 1921): and cousin were on a train, very crowded, with open doors. Train went around a bend and lurched, throwing the cousin from the train. The and conductor went to find the body. While on the bridge, lost his footing and fell to the ground below. Danger invites rescue. The wrong that imperils life is a wrong to the imperiled victim AND to the rescuer. Judgment for . Rescue doctrine negates the idea that the rescuer assumes the risk when undertaking a dangerous rescue, unless he acts rashly or recklessly. To be a rescuer one must demonstrate: the was negligent to the person rescued and such negligence cause the peril or appearance of peril to the person rescued the peril or appearance of peril was imminent a reasonably prudent person would have concluded such peril or appearance of peril existed the rescuer acted with reasonable care in effectuating the rescue In re Polemis & Furness, Withy & Co. (1921): A ship was destroyed when a plank fell on petrol causing an explosion. It is immaterial that the explosion could not have been reasonably anticipated. The act of letting the plank fall was negligent and it is reasonable to anticipate damage in general, if not the particular damage that occurred. Judgment for . Christianson v. Chicago: What a man may reasonably anticipate is important, and may be decisive, in determining whether an act is negligent, but is not at all decisive in determining whether that act is the proximate cause of an injury which ensues Palsgraf (NY 1928): The (RR employee) assisted a person carrying a package containing dynamite (unknown to ) in boarding a moving train. In doing so, the package fell beneath the train and exploded, injuring . Because the RR agent could not have known the need for care, he cannot be liable. This would create an unattainable norm of conduct. Judgment for . Andrews dissent agrees with Polemis. Who could we sue? Maker of the scale (yes), package holder (prob. not). RR is a repeat player, so it will pay later for harm, but refusing s suit gives incentive for to sue the right person. Why is wooden plank in Polemis foreseeable, and not this? (the dropping of a plank is negligent, dropping of a small package usually is not) Harm within the risk: Nitroglycerin example- if leaves a can of nitro on a table and a child knocks it off and hurts his foot, but miraculously does not explode the can. Since the harm that was caused is not attributable to the dangerous qualities of nitro, then the cannot recover, because the would not be negligent had the can been full of water. RST 3 29. 3. The substantial factor test: 2nd 431: The actors negligent conduct is a legal cause of harm to another if a) his conduct is a substantial factor is bringing about

the harm, and b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm. Substantial factor: has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense, in which there always lurks the idea of responsibility, rather than in the socalled philosophic sense 3rd Restatement rejects all permutations of the substantial factor, intervening cause and supervening cause language. Marshall v. Nugent and Trucking company (1st 1955): Truck owned by oil company cut a corner and forced the s car off the side of the road. Truck driver, Prince, offered to pull s car back onto the road and told him to go around the corner to warn oncoming traffic of the blockage. The , Nugent, then traveling northbound, found his way blocked and in an attempt to avoid hurting anyone skidded his car into a fence which he glanced off, hitting and severely injuring him. Princes negligence constituted an irretrievable breach of duty to the . The injury suffered by Marshall was not remote, either in time or place, from the negligent conduct of s servant. Jury returned verdict for Nugent and another for Marshall against the oil company. Affirmed Proximate cause: It would be disproportionately burdensome to hold culpable actor potentially liable of all the injurious consequences that may flow from his act, i.e., that would not have been inflicted but for the occurrence of the act. This is especially so where the injurious consequence was the result of negligence merelythe court tries to confine the liability of the negligent actor to those harmful consequences which result from the operation of the risk, or of a risk, the foreseeability of which rendered the s conduct negligent. It is impossible for a person to predict in advance just how his negligent act would work out to anothers injury, but this is not a bar to recovery. Should go to jury. Test: Confine liability of a negligent actor to those harmful consequences which result from the operation of the riskthe foreseeability of which rendered the s conduct negligent. liable before the disturbed waters have become placid and normal again, even if s eventual injury is bizarre indeed and impossible to predict Three major tests: Polemis: Directness test, every harm from negligence is recoverable. Palsgraf: Foreseeability test, specific. The risk reasonably to be perceived defines the duty to be obeyed Marshall: Liability for the consequences of an accident before the return to normalcy. Just because harms are direct does not mean they are subject to recovery. Overseas Tankship (UK) v. Morts Dock & Engineering (Wagon Mound No. 1) (1961 Australia High Court): Original trial found for . appeals. Appeal allowed. had negligently discharged oil. The wind carried the oil to the s wharf. Supervisor ordered no welding or burning in the area. He made some inquiries to the manager of the Cal Tex Oil company, this information and his own knowledge, satisfied him that the oil was not flammable and instructed his men to resume welding operations and to take care that nothing flammable should fall into the oil. About 2 and a half days later the s wharf was destroyed when the oil caught fire. Seeks to overturn Polemis: if the is guilty of negligence, he is responsible for all the consequences whether reasonably foreseeable or not. Introduces the conception that the negligent actor is not responsible for consequences that are

not direct. Wants to change Polemis language from direct to reasonably foreseeable. Agrees with Palsgraf, overrules Polemis. No recovery. More beneficial to deincentivize the ship from spilling oil than to incentivize the wharf to suspend work Wagon Mound No. 2: Suit by owners of two ships (Corrimal and Audrey D). Suit initiated prior to No. 1, but held in abatement pending outcome of that suit. Are the ship owners contributorily negligent. Should they have moved the ships, etc? PC says that fire was foreseeable, so is liable for loss of ships. The nature of foreseeability is that if the can foresee it, then so can the , and in this case the s were the ones who actually set the fire. If the s should have known, then the s should have known, and should have refrained from welding. If one (WM1) cannot argue foreseeability, then the (WM2) will argue it and win. Maybe they should be tried together. No contributory negligence like #1. Morts Dock fails to recover because it was likely careless, and Wagon Mound is make to pay No. 2 in order to prevent it from going completely free. Levmore. No comparative negligence means rough justice. Doughty: Asbestos cover knocked into vat of sodium cyanide. negligent as to knocking, not negligent for damages arising from explosion sometime later. Hughes: Boys knock lamp into manhole cover. Lamps cause explosion in hole. liable. Virden v. Betts and Beer Construction Company (IA 2003): was fixing something on the ceiling when he fell from the top of a 10 ladder. sued the company that had installed the ceiling, court ruled for because their negligence wasnt a proximate cause. was contributory negligent. It would have been different if something had fallen from the ceiling and struck . No recovery. Herbert v. Enos (MA 2004): was electrocuted when faulty wiring and plumbing of Enos home electrified hose faucet was using to water their lawn on request. Though the s negligence was not remote to , the harm was so extraordinary that the cannot be expected to guard against it. No recovery. American Truck v. Thorne Equipment (PA SC 1991): negligently fills her land with combustible trash. Fire starts and spreads across the street, damaging grain elevator. s property is damaged when the elevator is demolished. No recovery since s actions were not a substantial factor in harm. Demolition company is the intervening actor. City of Lincoln (1889): City of Lincoln negligently hits Albatross, which loses compass, charts, etc. Albatross sank when captain couldnt bring it to port. Lincoln liable since loss of the ship and reasonable human conduct is part of the ordinary course of things. Black-letter rescue law: McCoy v. American Suzuki Motor Corp (WA 1998): The rescue doctrine allows an injured rescuer to sue the party that caused the danger. The tortfeasor owes a duty to the rescuer that is similar to the duty they owed to the party injured in the first place. The doctrine also negates the presumption that the rescuer assumes risk of injury when undertaking a dangerous rescue as long as the rescuer does not act recklessly. The rescue doctrine requires that: The acted negligently towards the person rescued and the negligence caused the danger to the rescuer The danger was imminent A reasonably prudent person would have concluded that the danger existed The rescuer acted with reasonable care

 In this case, the court found that the Plaintiff met the requirements to achieve rescuer status. The rescuer doctrine was developed for public policy reasons because rescuers should be anticipated and should not be barred from bringing suit. There is no reason that this policy should not apply to situations where a manufacturer causes the danger. Therefore, for the rescuer to show causation, they only need to show that the defendant proximately caused the danger and that they were injured as a result of their actions as rescuer. It is a possibility that Suzukis negligence caused the Defendant drivers accident and therefore they should not be protected from liability to the Plaintiff. Review: Intervening acts a. May break the causal chain b. But, expect reasonable response, even if bad c. Not all intentional intervening acts break chain d. Act v. Omission e. Acts under compulsion Coincidence principle Good type v. Bad type Alternative regulatory regime a. Social norms b. Reputation costs c. Government (ex ante or ex post) regulation b. Emotional Distress Two lines of defense: Denies any connection between the distress and the s conduct, blaming another event for the s emotional harm Holds that even if the s conduct is the cause in fact of the s injury, that conduct is not the proximate cause Mitchell v. Rochester Railway (NY 1896): was waiting for a car to arrive when a horse car of the came down the street and stopped so close to her that she was between the horses heads when it stopped. This frightened her, she fainted, resulting in a miscarriage and illness. cannot recover for injuries induced by fright. If this class of cases were recoverable it would open up action which is easily feigned without detection where damages rest on conjecture or speculation. No personal injury (could not have been reasonably anticipated had no control) Flood of litigation (this implies that the judiciary is unable to make important distinctions in general. Where is the line? Does Mitchell come out differently if horse slobber hit ? Cite: Porter (NJ 1906): something Kenney (NH 1925): mouse hair on roof of mouth Turnage (GA 1928): horse poop Dillion v. Legg (CA 1968): Child was hit by a truck while crossing the street. Three claims result: 1) WD by mother for child; 2) Emotional distress of mother (dismissed as not within zone of danger); 3) Emotional distress of sister. Factors to consider when discovery the s foreseeability: distance from accident See v. Learn about

 Whether and victim were closely related or distantly linked Zone of Danger test: Narrow: Damages only if threated with bodily injury (Dulieu) Broad: Damages if immediate family witnesses the accident (Dillon) Evolution of case law: No recovery for emotional distress Damages for ED only if physical injury . . . if physical touching (like poop) . . . if fear for oneself (then damages for fear for others too) . . . if parent (or sibling?) in zone of danger . . . depends . . . Hypo: is driving down 57th Street. , driving the same direction, negligently but gently strikes her from behind, causing no damage to s vehicle. , believing she has struck and killed a small child on a bicycle, collapses at the wheel. loses consciousness and hits her head on the steering wheel. wakes from her coma weeks later; she suffers headaches and severe psychological damages as a result of thinking about killing a child. sues for NEID; what result? Williamson v. Bennett (NC 1960): no liability. Casual connections, while they may run through the victims instinctive and non-cognitive responses, do not run through the visions of ruination that are in essence self-generated. Epstein, Causation and Corrective Justice: A Reply Line drawing: Tobin (NY 1969): no recovery for mother who heard screech of brakes and arrived moments later extends logically to caretakers who just hear the news Elden (Cal. 1988): no recovery for lover who was also injured in same crash (given states interest in promoting marriage); cf. Dunphy (NJ 1994) Coon v. Joseph (Cal. 1987) (no recovery for gay life partner, even when sees intentional assault) Thing (Cal. 1989): must be direct observation by someone close and suffers beyond that which would be anticipated in a disinterested witness Dziokonski (Mass. 1978): parent can recover if at scene or arrives shortly thereafter Engler (Minn. 2005): mother can recover for her fright but not PTSD from threat (in same incident) to her son Grotts (NY 1993): no recovery for niece raised by aunt from age 11 Lee (Ga. 2000): jury must separate harm caused by witnessing death of child from typical harm from hearing about loss Restatement Third: 46 Negligent Conduct Directly Inflicting Emotional Disturbance on Another Note 4: RTT 46(b) An actor whose negligent conduct causes serious emotional disturbance to another is subject to liability to the other if the conduct: a. places the other in immediate danger of bodily harm and the emotional disturbance results from the danger; or

b. occurs in the course of specified categories of activities, undertakings, or relationships in which negligent conduct is especially likely to cause serious emotional disturbance i. Examples: Telegram announcing death, Mishandling corpse, Mouse in food, Misdiagnosis of serious illness, Hospital losing baby, Severe mistreatment by employer, Severe mistreatment by spouse. Majority rule P can recover from D for negligence that causes mental anguish Molien (Cal. 1980): recovery for damage, including divorce, arising from false diagnosis of syphilis Can parents of P in Molien recover too? What if parents also treated by same doctor? Yes: Marlene F. (Cal. 1989) (same psychiatrist); Burgess (Cal. 1992) (same OBGYN) No if no contractual privity (Huggins (Cal. 1993) (wrong prescription)) 2. Strict Liability a. Foundations

In a world without friction costs, there is no difference between SL and negligence. Why negligence? In most cases the facts of negligence are clear, so if you have the more aggressive liability rule, then you can neutralize any uneasy feelings about liability. The Thorns Case (Hull v. Orange)(YB 1466): trimmed thorn bushes adjacent to s property and came onto s property to collect the thorns, trespassing. liable for trespass. Demonstrates an example of strict liability for damages related to trespass. The intent to do the act was sufficient. Controversial, but Thorns points to strict liability. Millen v. Fandrye: Dog continued to chase sheep on neighbors land after chasing them off his masters land. Land owner sued dog owner, finding for citing Thorns case since the act of chasing the sheep was lawful and it cannot be expected that the dog would be recalled instantly. Hard case: Harm caused by s dog occurs to Ts land while chasing s sheep off s land. Should T be able to recover against ? Yes, but can sue to indemnify losses. Morris v. Platt: Shop owner who was getting robbed accidentally shoots third party. Finding for . Tithe Case: sued when farmer placed the corn in the field for . moved the corn to the s barn, where it was destroyed. tried to justify actions on the ground that the corn was in danger of being destroyed by beasts in the field. Court did not accept argument. If a third party interferes and the item is destroyed then they must be held liable, because if the item had been destroyed without interference, then the would have grounds for recovery. Inevitable accident defense (wouldnt work under SL): History Weaver v. Ward: Weaver sued Ward; they were skirmishing for muskets and Ward accidentally hurt Weaver. This is strict liability recovery: The analysis is a factual

one, involving the questions: 1) whether Defendant acted; and 2) whether Plaintiff was injured in some way as a result of that action. Gibbons v. Pepper: was on an out of control horse that hit and injured . Lower and upper courts for . Inevitable accident defense not available though tried to shout and warn . Modern Response Butigan v. Yellow Cab: Court repudiated with defense in intersection collisions, noting that an accident may be unavoidable or inevitable where it is caused by a superior or irresistible force or by an absence of exceptional care which the law does not expect of the ordinary prudent harm. McWilliams v. Masterson: man who killed his wife and injured family while driving during snowstorm and hitting cattle and going in front of truck was given an unavoidable accident instruction. is the driver of car, is the truck driver. Cattle owners received same jury instruction. Rule of vicarious liability for animals. Rough progression of Negligence from Inevitable Accident (Butigan): Strict liability Defense based on proof of exceptional care (inevitable accident rule) Defense broadened so proof of ordinary care allowed as a defense Burden switched to to show negligence Scott v. Shephard (Squib case): is liable though he did not throw the squib directly at the . b. Animals Prevailing rule is negligence Exceptions: wild animals, and animals known to be dangerous. Gehrts v. Batteen (SD 2001): Domesticated dog owned by bit , it was an 18 mo St. Bernard. Judgment for , dog had no history of dangerous behavior. Negligence standard, not strict liability. Black-letter law: o Strict liability for two categories: Wild animals (done on a species by species basis) Animals known by owner to have dangerous propensity: Old rule: one free bite Other ways to determine Baker v. Snell: A man who sicked a dog on someone else was not held vicariously liable through his master, since it seemed that the attack was an assault perpetrated by the servant. Woods-Leber v. Hyatt Hotel PR: Hotel not liable for mongoose attack since they did not own, control or know of mongoose. Rubenstein v US: US not held liable for attack of wild animals in national parks. The park also warned the is writing of the danger of camping in the park, discharging duty to warn and showing that assumed the risk. RTT 21 excludes cats and dogs from strict liability because of: o Frequency of claims, size of damages, reciprocity, fear of animosity given asymmetric ownership; history of disputes. o Includes livestock under strict liability, but not harms that are not reasonably foreseen

Williams v. Goodwin: was wrkng in his garden when s trespassing bull attacked him. Denver v Kennedy- zoos cannot be held strictly liable for attack. However it was found that the zebra pit was inadequately constructed. Collier v. Zambito- family dog bit visiting child. No recovery since the dog had not displayed vicious tendencies. Ferrara v. Marra- a pit bull attack. Court did not want to impose strict liability, because that would create a precedent of SL for all pit bull owners. Gibbs v. Jackson - totaled her car when she crashed into a horse that had wandered into the road. No liability was found since the judge did not want to interfere with the free range rule which allows livestock to wander on public grounds. Garcia v. Sumrall- Noted the division of authority on the question and opted for a higher standard, taking the view adopted in Colorando and Wyoming that requires to show some overt and unlawful at on the part of the which tends to increase the natural propensity of cattle to wander and to direct them upon the premises of another Lazarus v. Phelps- intentional tort only when the owner places the cattle on his land in a manner which makes it substantially certain that they will stray. RST 524: does not allow contributory negligence. RTT 25: reduces damages.

c. Ultrahazardous Activities Nitro example. Harm is not within the risk. Spano v. Perini Corp (NY 1969): = Spano, owner of a garage in Brooklyn which was wrecked by a blast. = Davis had a car in the garage. = joint venture who was constructing tunnel near the garage, contracted with the city of NY. Explosives are treated as SL. Judgment for . o Booth v. Rome- proof of negligence was required unless the blast was accompanied by an actual physical invasion of the damaged property. Strict liability for Ultrahazardous activities forces the actors to bear the cost of inevitable damage and gives them incentive to take caution. 519 RST 520 RST o It doesnt matter whether the dangerous thing is used for profit or not. o Does not need to be used on s property o If reasonable care will not eliminate risk, then there is strict liability o If the thing is in common usage strict liability will not be imposed (a car vs tank, for example) o It the use is a value to the community, then the risk may not be treated as abnormal. o American Law Institute, Restatement (Third) of Torts: Liability for Physical Harm 20 RST o strict liability is assigned when reasonable care does not eliminate the risk associated with an abnormally dangerous object. What is Ultrahazardous? o Fireworks, pile driving, crop spraying, transportation of gasoline

o Not: Providing electricity, selling handguns, airplanes, transmitting natural gas. Indiana Harbor Belt RR v. American Cyanamid Co (7th Cir 1990): Who should play for the clean up of the Cyanamid spill in Chicago. = IHB = American Cyanamid co. Where the harm is a result of negligence, and not the inherent properties of a substance, then negligence regime is sufficient to prevent future harm. BUT- the inherent danger did lead to damage/suit. There wouldnt have been any danger, worry, or preventative action having to do with the spill if the chemical was not inherently dangerous. If the tank had been full of water we would not be having this suit. Reversed and Remanded in favor of . Does not matter who pays, really. 520 factors o (a) existence of a high degree of risk of some harm . . . o What does Posner say? Accident not attributable to dangerous properties of acrylonitrile, like corrosiveness o (b) likelihood that the harm that results from it will be great o What does Posner say? The accident did not cause an explosion and destroy the possible evidence of negligence as in Siegler v. Kuhlman (exploding fuel truck obliterated P and her car) o (c) inability to eliminate the risk by the exercise of reasonable care o What does Posner say? [I]f a tank is carefully maintained the danger of a spill of acrylonitrile is negligible. o (d) extent to which the activity is not a matter of common usage o What does Posner say? Not much . . . District court: not frequency but number of firms/people (very few persons ship 20,000 gallons of acrylonitrile by tank car . . . [s]uch a shipment is not a matter of common usage.) o (e) inappropriateness of activity to the place . . . o What does Posner say? Hub-and-spoke system makes this inevitable. rerouting is no panacea because of distance and/or quality tradeoff o (f) extent to which the value to the community is outweighed by its dangerous attributes o What does Posner say? Not much . . . Posner claims that if there is residual harm expected after the exercise of due care, then strict liability is more desirable o Is this right? Not necessarily. Need to inquire into the impact on accident victims incentives. Madsen v. East Jordan Irrigation Co., (UT 1942): Shock from a blast frightened mother minks and they killed their young. Mother minks broke causal chain because minks action was unanticipated, so strict liability does not apply, but negligence.

d. Nuisance RST 821D: A private nuisance is a nontrespassory invasion of anothers interest in the private use and enjoyment of land. Substantial or unreasonable interference. must prove: o s land use substantially interfered with s use and enjoyment of her land o s land use was unreasonable Typical nuisance categories: o Noise (blasting)

o Odor (from farm animals or factories) o physical invasion of particles (dust from farm or factory) o environmental hazards (from waste seepage) Black-letter Law: o Majority rule -- Fitzherbert rule: private suits for special damages (e.g., loss of access to land; personal injuries) o Minority rule Overcash (SC 2005) (no private suits for public nuisance causing personal injuries) o Overcash v. South Carolina Electric & Gas Co.: was seriously injured in a boating accident involving a dock obstruction in public waters. Cause of action denied because they refused to recognize an action under public nuisance for purely personal injuries. Wernke v. Halas: trial court awarded $5600 for lost rental value; $2400 for nuisance fence. Appeals court reversed, aesthetics are too subjective to justify an award on its own (even if the face of proved diminution in property value). Attorney would need to tie in noise, odor, etc. o To grant recovery on subjective aesthetics might infringe on ownership rights. o Why sue under nuisance and not trespass? Statute of limitations Proof Qs: harder to trace fluids than speeding bullets Defenses: coming to the nuisance Intuition: easier to stop someone coming onto your land than making productive use of her own, which has negative spillovers. Vogel v. Grant-Lafayette Electric Cooperative: s sued on two different theories of nuisance for stray voltage from s electrical service. Court ruled the voltage was a private nuisance, but not intentional. For s to recover under a claim for intentional nuisance, must have intended to cause the harm to the herd. is not liable for a continuing trespass either because as soon as was aware of the stray voltage, it made immediate steps to fix it. is liable for private nuisance in providing undesirable and harmful stray electric along with the requested electricity. Notice in the private nuisance analysis, it does not matter whether or not knew or should have know that its stray electricity caused s harm. Private nuisance is a strict liability tort. Giles v. Walker (QB 1890): Want to create incentives to improve land, this might mean that a will have to put up with nuisance. Martin v. Reynolds Metals Co.: s released fluoride gas which settled on s land rendering it unfit for cattle grazing or watering. Court ruled that it was not a nuisance, but an actual trespass. The defense of coming to the nuisance is inapplicable to trespass cases almost by definition. o Like Vogel, most accounts of nuisance law require that the s invasive conduct is an unreasonable interference with the s use or enjoyment of property. Copart Industries, Inc v Consolidated Edison of NY - today it is recognized that one is subject to liability for the private nuisance if his conduct is a legal cause of the invasion of the interest in the private use and enjoyment of the land and such invasion is o 1) intentional and unreasonable o 2) negligent or reckless

o 3) actionable under the rules governing liability for abnormally dangerous conditions or activities. Puritan Holding v. Holloschitz: Court held liable in nuisance when she abandoned and left in disrepair a building she owned in an urban renewal area in where property value had shown a marked increase. Vagrants were present (Henderson thinks this is key). Mathewson v. Primeau: Court ruled that raising of hogs was a nuisance due to smell, but ruled that the did not have to remove junk, as nuisance is not concerned with aesthetics. Rattigan v. Wile - malicious aesthetic nuisance was ruled in favor of . Junk piled higher tan fence or flying helicopter. Carpenter v. Double R Cattle Co, Inc (1985): If the court finds nuisance, should be allowed to argue to the jury that the benefits to the community outweigh harm. If they prevail, there is no nuisance. RST 829A: Unreasonable if the harm resulting from the interference is severe and greater than the other should be required to bear without compensation. What is reasonableness? Two views: o 1) refers solely to the level of harm. Once the minimum point is crossed, private or social benefit is irrelevant Jost: substantial sulphur dioxide damages s land Pestey v. Cushman: Odors from farming o 2) refers to traditional cost/benefit analysis Even large harms are justified if worth it o RST 826; Copart (Con Ed smoke damages paint finish) Michalson v. Nutting (MA 1931): Roots of a tree damaged the pipes on s land. Court found not liable. It is the same as shade infringing on a neighbors property. The s remedy is in his own hands. o Why? High cost of litigation, reciprocal hams and benefits, extralegal means of redress should be sufficient. o What overcomes this? Where the harm is big, it will overcome litigation costs; where harm is one-sided, then compensation justified. Bamford v. Turnley: Reciprocal nuisance. Acts that are necessary for the maintenance of a property, if done carefully, should not have action brought against them. Link between the requirement of just compensation and the principle of reciprocity. o ^Bramwell: one-way harm, but long run reciprocity. o Coase: reciprocal harms. Fountainebleau Hotel Corp. v. Forty-five Twenty-five Inc. (FL AP 1959): injunction not granted to stop construction casting shadow over 45s pool. o Cite this is Gore solar array v. Beck shadow casting statute hypo. Injunction will not be granted where a structure serves a useful and beneficial purpose, it does not give rise to a cause of action, either for damages or for an injunction Argue that the statute isnt useful Prah v Maretti: and owned adjoining plots in a subdivision, s to the south. This would block s light for solar power panels. Wisconsin Supreme Court repudiated Fontainebleau, saying this might have been a private nuisance. Tenn v. 889 Associates: Middle course between Fontainbleau and Prah. But ruled for addition as it was the same action taken by the previously. Flaherty v. Moran: Malicious fences are a nuisance.

Kuzniak v. Kozminski: moved his coal and wood shed close to the s property line, where it blocked the light and air to the s windows, partly out of malice. But court did not enact spite fence doctrine because the shed had a useful purpose. Single owner test: what will create the most profit. Rogers v. Elliot (MA 1888): Bell ringer. Nuisance liability must not be regulated by the effect on a particular person, but by an ordinary person. If ones right to use his property were to depend upon the effect of the use upon a person of particular temperament or disposition, or upon suffering from an uncommon disease, the standard for measuring it would be so uncertain and fluctuating as to paralyze industrial enterprises. Judgment for . o RST: There is liability for a nuisance only to those who whom it causes significant harm, of a kind that would be suffered by a normal person in the community or by a property in normal condition and used for a normal purpose (This means people with no sense of small could recover for a nuisance smell). Belmar Drive-In Theater Co. v. Illinois State Toll Highway Commission: s operated a toll-road service center that was adjoined to the s outdoor movie theater. Theater complained that the Toll booths lights interfered with movie watching. Court ruled for under extra sensitivity test. Page Country Appliance Center v. Honeywell, Inc: Honeywell installed a computer whose radiation interfered with TVs in s store. Extrasensitivity test did not work because having a TV was not an exceptional condition. Finding for . Ensign v. Walls (MI 1948): s dog breeding business was considered a nuisance by the court. Coming to the nuisance is not an absolute defense. o Why Coase doesnt take care of this: collective action problem, many people with a small interest in the dogs. Bove v. Donner-Hanna Coke: sought to enjoining the operation of s coke over. Court rejected request for an injunction because the moved into the area knowing that it was an industrial area. Court did not want to interrupt business. o This is the minority view: what justifies it? An opportunistic can move in, file an injunction and magically raise property value. Wouldnt the market account for this? Wouldnt be such a deal. Escobar (MA 1992): The s knew there was a bakery business propertys location and the s business activities. Spur Industries v. Del Webb Development (AZ 1972): Allowing injunction in part because of presence of innocent purchasers in development. Boomer v. Atlantic Cement Co (NY 1970): Suit alleging injury to property from dirt, smoke, and vibration from plant. Injunction granted on the basis that where a nuisance has been found and where there has been any substantial damage shown by the party complaining an injunction will be granted. But they do not want to shut the plant down entirely, so they opt to grant the injunction conditioned on the payment of permanent damages to s which would compensate them for the total economic loss to their property present and future cause by s operations. Anonymous (1536): A can sue for a nuisance, even if the nuisance has the potential to or does harm the greater population, if he is especially hurt by the nuisance. 532 Madison Avenue Gourmet Foods, Inc. V. Finlandia Center, Inc (NY 2001): The south wall of a building collapsed, shutting down 15 blocks of Manhattan, resulting in lost business for stores. Court holds that a landowner does not owe a duty to

protect an entire urban neighborhood from purely economic loss. All s counts were dismissed. A public nuisance is a violation against the State and is subject to abatement or prosecution by the proper governmental authority. A public nuisance is actionable by a private person only if it is shown that the person suffered special injury beyond that suffered by the community at large. why? Administrative burden of too many suits Think about the other 15 blocks, who are getting business of closed blocks, they have gotten a windfall. They will not be taxed to recover the profits for the closed blocks. Leo: Large losses for both s. Pollution ruined fishermans catch. Judgment for . Camden County Board of Chosen Freeholders v. Beretta, USA Corp (3rd 2001): contends that Beretta is liable under a public nuisance theory for the governmental costs associated with the criminal use of handguns in Camden County. Dismissed. Precedent shows that the must have had some control over the nuisance in question. In this case the 7 link chain is too attenuated. Johnson v. Bryco Arms - shooting victim was allowed to sue a manufacturer, wholesaler, distributor, and retailer on a public nuisance theory. On the grounds that the gun manufacturer could substantially reduce the harm occasioned by the illegal possession and use of handguns it they wanted. 3. Products Liability a. Background Four periods of products liability: 1. Privity (Winterbottom): No liability for manufacturers, too remote 2. Negligence (MacPherson): Liability for remote sellers 3. Strict liability (Escola): Strict liability for manufacturing defects 4. Current law Expanding liability in defect design and duty to warn cases; slight retrenchment Putting aside large class actions, retreat from high water mark of 19801985 Now more solicitous of s issues But, still relatively hostile (or even more so) to contractual waivers 1. Winterbottom v. Wright (Eng 1842): no recovery because no privity of contract. Carriage broke down and the was injured when thrown from the vehicle. o Huset v. J. I. Case Threshing Machine Co: Lays out three exceptions to Winterbottom. Liability can be found when 1) a manufacturer or vendor perpetrates an act which is imminently dangerous to the life or health of mankind. 2) an owners act of negligence causes injury to one who is invited by the owner to use his defective appliance upon the owners premises. 3) one who sells or delivers an article which he knows to be imminently dangerous to life or limb to another without notice. Cross subsidy of products liability: leads to resource misallocations, excessive use by bad users; insufficient use by good ones. o Kuelling v. Roderick Lean Manufacturing Co: s sold a roller to a dealer, who sold it to . There was a defect which was concealed with putty and paint. Action allowed.

2. MacPherson v. Buick Motor Co. (NY 1916): was hurt when the wheel of his car splintered and he was thrown from the car that manufactured. The wheel was not made by the , but purchased from a third party. The did not know of the defect, but could have if it had done a check. The is suing under a theory of negligence, not fraud. Changes the previous rule to hold that products liability extends to things that negligently made are reasonably certain to place life and limb in peril. Ruling for . This rule is followed in every US jurisdiction today. 3. Escola v. Coca Cola Bottling Co. of Fresno (Cal 1944): was a waitress. A bottle exploded in her hand. Jury entered a verdict for the that was affirmed on appeal: negligence detected under res ipsa loquitur. SL is already being applied. UCC 2-318 Third Party beneficiaries of warranties express or implied: o A) Sellers warranty extends to any person in the family or household of the buyer, or a guest, if it is reasonable to expect a person may use the goods. o B) Sellers warranty extends to any person who may reasonably be expected to use the goods o C) Sellers warranty extends to any person who may reasonably be expected to use goods. Seller may not exclude or limit the operation of this section. Greenman v. Yuba Power Products: s wife gave him a product manufactured by the . hit in head by flying piece of wood because the set screws were of insufficient strength to hold the wood in place. recovered for negligence and breathe of both express and implied warranties. o Implied warranty of safety attending the sale why? o Low cost avoider: manufacturer in best position to minimize losses o More efficient risk bearer: fat cats should bear burden of unfortunate injuries o Solve negligence proof problems: but . . . o The manufacturers liability should . . . be defined in terms of the safety of the product in normal and proper use, and should not extend to injuries that cannot be traced to the product as it reached the market. o Becomes law in Greenman v. Yuba Power Products (Cal. 1962) Barker v. Lull (Cal. 1978): no longer any concern with intermediate inspections, intended use, no burden on P on awareness. The result is that consumer expectations model functions side by side with the cost/benefit risk/utility approach. Therefore, decisions regarding product safety made through courts instead of using courts to insure private parties have right information to make those decisions themselves

b. Restatements Second Restatement 402A. Special Liability of Seller of Product for Physical Harm to User or Consumer 1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property if a) the seller is engaged in the business of selling such a product, and b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. 2) The rule stated in Subsection (1) applies although a) The seller has exercised all possible care in the preparation and sale of his product, and b) The user or consumer has not bought the product from or entered into any contractual relation with the seller.

Third Restatement 1 Liability of Commercial Seller or Distributor for Harm Caused by Defective Products o One engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect. 2 Categories of Product Defect o A product is defective when, at the time of sale or distribution, it contains a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings. A product a) Contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product; b) Is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe; c) Is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe. Restatement of Torts section 402A o Before 1965, SL only applied to foodstuffs and products intended for intimate body use. After this the broad range of products made it difficult to use one rule for them all. o Third did not replace 2nd, and so they are both used today Case law has outstripped 2nd by allowing injured bystanders to sue the original manufacturer. o Today bystanders can recover universally, though cases are infrequent. Casa Clara Condo Assoc. v. Charley Toppino & Sons, Inc (FL 1993) (Economic Loss Rule): Toppino supplied concrete for the construction of homes. This concrete contained a high level of salt which rusted the reinforcing steel in the concrete, causing the concrete to break. Housing association sued Toppino for breach of common law implied warranty, products liability, negligence, and violation of the building code. Court applied the economic loss rule and held that, because no person was injured and no other property damaged, the homeowners had not cause of action against Toppino in tort. Tort recovery is attractive because the may recover greater damages than in contract. Economic loss rule: damages for inadequate value, costs of repair and replacement of the defective product, or consequent loss of profits- without any claim of personal injury or damage to other property. It includes the diminution in the value of the product because it is inferior in quality and does not work for the general purpose for which it was manufactured and sold. Economic losses are disappointed economic expectations, which are protected by contract law, rather than tort law. o Tort = determined by the duty owed to a party, SoL: until injury discovered or could have been discovered. o Contract = protects expectations, SoL: 4 years from date of sale

Dissent: The concrete was negligently manufactured and so the should be able to recover. Strict liability ruined personal airplane business. How to solve: o Cap on damages, change SoL, conservative proximate cause regime (problem here?), liberal contributory negligence/assumption of risk regime, liberal successor liability rules. General Aviation Revitalization Act of 1994 (GARA) Cafazzo v. Central Medical Health Services, Inc. (PA 1995): Hospital and a physician cannot be held subject to strict liability under Restatement of Torts (2nd) 402A, for defects in a product incidental to the provision of medical services because they are not sellers. Imposing liability on hospitals would not effect change on a manufacturing level, so the only reason to award damages here would be to compensate the . Affirmed for . (Issue is not that it was a negligent choice or installation, but defective product). Test (Francioni v. Gibsonia Trucking): o 1. Which members in supply and marketing chain available for redress? o 2. Incentive to safety? o 3. Cheapest cost avoider? o 4. Most efficient risk bearer (spreading losses)? Tillman: used equipment dealer selling crane as is not liable under 402A.

c. Product Defect Law: o is not required to prove specific defect. o Can be circumstantial: E.g., blender blade flies off on first usage; computer bursts into flames after owning it one month must show product didnt work as intended; exclude alternative theories not attributable to o Third Restatement 3: Circumstantial Evidence Supporting Inference of Product Defect recovery without proof of specific defect can be found when harm is a) of the kind that ordinarily results from product defect and b) was not solely the result of causes other than the product defect existing at the tie of sale or distribution. Like res ipsa Speller v. Sears, Roebuck and Co (NY 2003): s sued Sears, who sold them a refrigerator that they maintain was defective and caused a kitchen fire. There is a battle of experts, s experts say that the fire started in the upper right quadrant of the fridge where there is a concentration of wiring. A Whirlpool expert conceded that if the refrigerator had caught fire it was the result of a defect. A two part test from Codling v. Paglia allows the to prove PL circumstantially by: o 1) proving that the product did not perform as intended and o 2) exclude all other causes for the products failure that are not attributable to defendants. o If s proof is insufficient with respect to either prong, then the jury may not award damages unless the IDs a specific flaw. The wiring that may have been to blame was destroyed in the fire: evidence problem. argues that after they came forward with evidence suggesting an alternative cause of the fire, s were foreclosed from

establishing product defect circumstantially, but needed to give specific evidence to survive summary judgment. Court rejects this for two reasons: o 1) this would allow a to offer a minimally sufficient alternative and head off s argument. o 2) it misinterprets the courts role in adjudicating an MSJ. o Because a reasonable jury could credit this proof and find that the excluded all other causes of the fire not attributable to s, this case presents material issues of fact requiring jury trial. Reversed. Like res ipsa: we know that something went wrong, but not what. So must defend, not bring evidence. Byrne v. Boadle: flour barrel on the head. Wade test, On Nature of Strict Tort Liability for Products (Risk/utility): (1) the utility of the product to the public as a whole and to the individual user; (2) the nature of the product that is, the likelihood that it will cause injury; (3) the availability of a safer design; (4) the potential for designing and manufacturing the product so that it is safer but remains functional and reasonably priced; (5) the ability of the plaintiff to have avoided injury by careful use of the product; (6) the degree of awareness of the potential danger of the product which reasonably can be attributed to the plaintiff; and (7) the manufacturer's ability to spread any cost related to improving the safety of the design. Jagmin v. Simonds Abrasive Co: was injured when struck in the face by a grinding wheel that broke into pieces while he was operating it. s evidence tended to show that it was a manufacturing defect, but there was space for a possible intervening action. Upper court let it go to the jury. Campo v. Scofield (NY 1951): If a manufacturer does everything necessary to make the machine function properly for the purpose for which it is designed, if the machine is without any latent defect, and if its functioning creates no danger or peril that is not known to the user, then the manufacturers has satisfied the laws demands. The very nature of a dangerous item should put the user on notice, and he is expected to avoid harm. Volkswagen of American, Inc. v. Young (MD 1974): s claim: the Beetle was defectively designed, manufactured, and marketed with defects which rendered it structurally hazardous, not merchantable, and not fit for the purpose intended because seat assembly was unreasonably vulnerable to separation from the floor upon collision. Second collision cases. Two factors: 1) the defect is a construction defect, a defect in design, not a deviation from the intended product. 3) the defect is not the cause of the initial impact. Court prefers Larsen to Evans, upholds duty of manufacturer to minimize harm to user. That the design defect does not came the initial collision should make no difference if it is a cause of the ultimate injury. Court refuses to apply strict liability under 402A. This depends on traditional principles of negligence. How is this different? Defect did not cause the crash; defect cause injuries resulting from unrelated accident. Young test: Manufacturer could reasonably foresee design could cause injuries Micallef (NY 1976) (chase-a-hickie case: includes not only uses for which product intended but also unintended yet reasonably foreseeable use) Give me an example of a misuse that isnt foreseeable Not obvious danger (e.g., actual spear coming out of steering wheel)

RTT 2: open and obvious relevant to issue of defectiveness, but doesnt preclude argument about alternative design Defect causes injuries Why is this outside typical realm of negligence, that is, what case does this remind you of: Tarasoff, Kline v. 1500 Mass Ave: therapists didnt warn victim about killer. Why?: duty to protect against massive third party invasions of a massive dimension. The Peltzman effect: What do we expect for death rates after we introduce mandatory seat-belt laws? More accidents (people feel safer, so they take fewer precautions) Less deaths per accident because cars safer Peltzman finds these effects roughly cancel out, so death rates not changed by seatbelt laws Collateral benefits: Injuries may be less severe (even with more) so social costs may be less Collateral costs: If death rates in auto accidents rose, despite the above, what might be the cause? Accidents involving pedestrians and cyclists, etc. Crashworthiness doctrine: you cant just impose liability for every fault. Sometimes features are a trade off, a company could ping pong between the two. Barker v. Lull Engineering Co (CA 1978): A product is defective in design either 1) if the product has failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner, or 2) if, in light of the relevant factors discussed below, the benefits of the challenged design do not outweigh the risk of danger inherent in such design. A product can be found defective in design, even if it satisfies ordinary consumer expectation, if through hindsight the jury determines that the risk of danger inherent in the challenged design outweighs the benefits of such a design. Strict product liability is meant to relieve the injured plaintiff of many of the onerous evidentiary burdens inherent in a negligence cause of act the jury may have interpreted the erroneous instruction given in the instance case as requiring to price that the high lift loader was ultra hazardous or more dangerous than the average consumer contemplated, and because the instruction additionally misinformed the jury that the defectiveness of the product must be evaluated in light of the products intended use rather than its reasonably foreseeable use, so there was error in the original trial. Judgment in favor of s is reversed. Test: In hindsight (look out!), does design embody excessive preventable danger what does this mean? Factors: o Gravity of danger posed o Likelihood of such danger o Feasibility of alternative design o Financial cost of change o Bad effects of new design High lift loader flipping over case. Linegar v. Armour of America (8th 1990): Family of deceased policeman not awarded damages for the WD of the deceased. User expectations: the user could not have expected the vest to protect the side of his body any more than he would expect it to protect his head. The amount of coverage was the buyer choice and its limitations would have been

obvious to the user and purchaser.To allow this suit would have a pernicious effect on the market - forcing the company to create products which are actually less safe. Campo again?: open and obvious test: if risk is known, then no liability. Micallef overruled Campo. Linegar walks back from Micallef, but not all the way back to Campo. Halliday v. Sturn, Ruger & Co (MD 2002): Mother sues handgun manufacturer after her son shot himself in the head accidentally. She contends that a risk-utility analysis should be used, since the manufacturer could have included child safety features on the gun. However, the court follows the precedent of Kelley. RG Industries that imposes strict liability and requires that the gun malfunctioned in some way. Warnings: implicit in defect design cases is view that redesign is lower cost than warning, because you have to pay for the litigation about the defect. MacDonald v. Ortho Pharmaceutical Corp. (Mass 1985): brought suit for injuries caused by Orthos birth control pills after she had a stroke. Ortho nor her doctor warned her of the risk of stroke. Court concludes that the manufacturers of BC has a duty to the consumer to warn her of dangers inherent in the use of the pill. The manufacturer does not satisfy its duty to warn by telling the physician of the danger, rather they must tell the consumer directly. The warning must be comprehensible to the average user and convey a fair indication of the nature and extent of the danger to the mind of a reasonably prudent person. This is to be decided by a jury. Reversed and remanded with instructions to find for . Dissent: It is better than the doctor warns, as he can tailor information to the patient and their medical needs and histories. Vassallo v. Baxter Healthcare Corp. (MA 1998): had breast implants in 1977 at the age of 48. In 1992 she had a mammogram which found that her implants had ruptured. The manufacturer knew of the risk of rupture and adverse consequences. says she would not have had the implants put in if she knew of the risks. wants a state of the art standard. Court revises law to reflect judicial trends and 2 of 3rd Restatement: a defendant will not be held liable under an implied warranty of merchantability for failure to warn or provide instructions about risks that were not reasonable foreseeable at the time of sale or could not have been discovered by way or reasonable testing prior to marketing the product. A manufacturers will be held to the standard of knowledge of an expert in the field, and will remain subject to continuing duty to warn (at least purchasers) of risks discovered following the sale of the product at issue. Affirmed for . could not take advantage of this range in the law because of the adverse jury verdict on the negligence count, and the jurys apparent conclusion that did have actual or constructive notice of the risks associated with their implants. In accord with RTT 2(c): duty to warn if foreseeable risks could be reduced by warning and the omission makes product unsafe. BuutThe goal of the duty to warn is to induce conduct that is capable of being performed. The goal is not advanced by imposing liability for failure to warn of risks that were not capable of being know. Hood v. Ryobi America Corp. (4th 1999): removed blade guard from saw and was injured when blade flew off and toward him. He contends that 1) Ryobi failed to adequately warn of the dangers of using the saw without the blade guards in place and 2) that the design of the saw was defective. Court disagrees that should have warned that removing the guards would lead to blade detachment. Court says no, a warning need only be one that is reasonable under the circumstance (Levin v. Walter Kidde & Co). argues that cost of making a more detailed label is minimal, but the court says that adding more detail can undermine the effectiveness of the label all together. Hoods defective design claim is unpersuasive on the ground that the product alterations defeat liability. Judgment for .

Hood rule: warnings (in MD) need not be specific or encyclopedic. Risk utility calculus: whether the benefits of a more detailed warning outweigh the costs. Alternative design: if consumer opted to purchase a model with certain characteristics, he cannot recover when a lack of another models characteristic leads to harm. Liriano v. Hobart Corp: caught his right hand and arm in a commercial meat grinding machine from which the employer had removed the safety guard. There was no warning stating that operation without the guard was dangerous. Lower court ruled that the should have realized the danger, but the appeals court held for on because a jury could reasonably find that there exist people who are employed as meat grinders and who do not know a) that it is feasible to reduce the risk with safety guards, b) that such guards are made available with grinders, and c) that the grinders should be used only with the guards Ayers v. Johnson & Johnson Co - 15 month yo tried to drink baby oil and inhaled it when he was yelled at. Jury found for , sustained on appeal. Family thought that the worst harm would be stomach upset from consumption. So if J&J had put a more specific warning, the s would have been more careful to keep the oil away from David. Hon v. Stroh Brewery Co - Common knowledge fit not allow the to obtain MSJ. s husband died of pancreatitis allegedly resulting from his consuming 8-12 cans of the s beer each week over a period of several years. Court required warning for beer. you might not think it is going to kill you, but you know it isnt going to do you any good. Hendersons Take: The question is the efficiency of the allocation Money transferred from Company X to Lawyer Y and Plaintiff Z is money that Company X cannot spend on developing new and better products. In this sense, it is inefficiently allocated It was not given to Y and Z in a voluntary exchange that was mutually beneficial. Y and Z used the power of the State to take this money. And, as it turns out, it was not justified by any notions of social efficiency It also creates an incentive for the Xs of the world to spend resources (again that they could be putting to better use) on lawyers, defending against these suits, lobbying for legal change, and so on It also encourages the Ys and Zs to spend money pursuing these claims, which are just wealth transfers Every penny spent on this is a penny that is spent dividing the pie not increasing the pie. We need some dividing, but we should divide based on sensible reasons, not on who happens to have the better lawyer or who can fool 12 jurors into something 402A, comment K - deals with products known to be unavoidably dangerous. a. Hepatitis - Brody v. Overlook Hospital - recovered after dying from hepatitis caused by a blood transfusion. Court considered strict liability as it might incentivize the hospital to have blood banks more thoroughly screen their donors. Overturned, negligence was used on appeal, ruling for . A SL rule would achieve loss spreading, influence doctor choices about using blood, better screening of donors. A negligence rule (used on appeal): key factor is incentives, no known test then.

d. Plaintiffs Conduct

Daly v. General Motors Corp (CA 1978): was driving on the freeway when he crashed into the divider and was forcibly thrown from the car because of an exposed push button door lock. s objections: o 1) the Opel was equipped with a seat belt and door lock, either of which if used, would have prevented the ejection. o 2) Daly used neither o 3) Opels owners manual warned to use both for accident security o 4) Daly was intoxicated at the time of collision Court found for under Strict Liability/Comparative Fault. Plaintiffs also argue that comparative principles will lessen a manufacturers incentive to produce safe products. This Court does not believe this to be true, as exposure to liability will be lessened only by the extent to which the plaintiff contributed to his injury and the manufacturer cannot assume that the plaintiff will always be blameworthy. A further benefit will be that the imposition of comparative principles will allow for only a partial limit on recovery, where previously the only plaintiff-negligence defense was assumption of the risk, which was a complete bar to recovery. This unfair rule caused a contributorily negligent plaintiff to be in a better position when claiming negligence than strict liability. * A further objection to the imposition of strict liability is that jurors cannot compare plaintiffs negligence with defendants strict liability. However, the court is convinced jurors are capable of such a task. The court found final support for the adoption of comparative negligence in strict liability cases in the provisions of the proposed Uniform Comparative Fault Act [adopted by the Conference of Commissioners on Uniform State laws (1997)]. Majority: o Reasons for strict liability: Proof problems, protect the powerless, loss spreading. o Benefits of adding comparative fault: still liable for manufacturing defects, only damages reduced by fault that is not s, s incentives still strong given uncertainty about expected fault in users (there could still be a defect, despite the fact that the was drunk. The company should still be held liable). Dissent: Does not want contributory negligence. LeBouef v. Goodyear Tire & Rubber Co.: Mercury Cougar capable of going 100 mph equipped only with tires safe at speeds at 85 mph and below. Judgment for though he was intoxicated, as the accident was not dependent on that. Note that this creates a wealth transfer from careful to careless drivers. Hernandez v. Barbo Machinery Co: could not detect the on off switch for a saw, slipped in sawdust and had his hand mangled. Jury determined he was 50.5% comparatively negligent, and so he could not recover. Jeld-Wen Inc v. Gamble (VA 1998) - 13 mo plaintiff fell through a screen window. The screen had a false latch, with defective pins. Like Halliday (gun/child case). RTT allows the reduction of recovery in the presence of s contributory negligence.

Geier v. American Honda Motor Co (US 2000): decision which held that a federal automobile safety standard pre-empted a stricter state rule. The court held that Alexis Geier, who suffered severe injuries in a 1987 Honda Accord, could not sue Honda for failing to install a driver-side airbaga requirement under District of Columbia law tort law but not Federal lawbecause Federal law pre-empted the District's rule. Justice Stephen G. Breyer, delivered the Court's 5-4 decision which held: "[Geier's] 'no airbag' lawsuit

conflicts with the objectives of FMVSS 208 and is therefore pre-empted by the Act." The dissent challenged the majority's "unprecedented use of inferences from regulatory history and commentary as a basis for implied pre-emption." 4. Damages a. Recoverable Elements Sullivan v. Old Colony Street Ry (MA 1908): The purpose of damages is compensation. Zibbell v. Southern Pacific Co. (CA 1911): No rational being would change places with the injured for an amount of gold that would fill the room of the court, yet no lawyer would contend that such is the legal measure of damages. McDougald v. Garber (NY 1989): 31 yo woman a C-section and ended up in a coma/vegetative state due to oxygen deprivation. No question of liability, but should she be able to recover damages for loss of happiness? Re s argument that victim is a vegetable and cannot feel any pain and suffering: o 1) cognitive awareness of is a prerequisite to recovery for loss of enjoyment of life o 2) loss of enjoyment of life is not a separate category from pain & suffering. Dissent: considers loss of enjoyment of life to be an objective damage item and so separate from P&S. Loss of enjoyment of life and pain & suffering damages are redundant. DePass v. United States: Court rejected expert witness testimony that the s amputation could result in an estimated 11 year reduction in life expectancy. Posner dissents on basis that this would systematically under compensate OShea v. Riverway Towing Co. (7th 1982 Posner): was injured while getting off a harbor boat operated by . Court holds that it is proper to consider inflation in calculating damages for lost wages. This case illustrates that all awards which are meant to compensate for future losses must be discounted to represent their present value. This involves determining what amount in todays dollars when invested safely will yield the amount of the total award on a future date. Because of the state of the economy over the last 25 years, the impact of inflation must be considered to arrive an at accurate compensation amount. Awards of future damages should be calculated analytically rather than as an intuitive undertaking. Carter & Palmer: At least one study suggests we should abandon the whole thing. There are a lot of contingencies and they tend to wash each other out. Aldridge: burden on party who benefits from economic calculation Duncan v. Kansas City Southern RR (LA 2000): Collision between a train and a church van at a RR crossing. Jury found the driver of the van and the RR liable for the accident, apportioning fault between the two. KCS contends that awards were excessive because the quadriplegic child was brought into the courtroom during trial. Her recovery was reduced based on expert testimony about life expectancy and her need for care. b. Other Issues Collateral Benefits o Harding v. Town of Townshend (VT 1871): had recovered already under insurance he purchased, court directs that his recovery should be adjusted by the net gain: $123. Why should the benefit from the s insurance claim when the is not linked to the insurance company in any way. The party who is a fault should pay the whole damages. Reversed and remanded with instructions to add $123 to recovery.

Punitive Damages o Kemezy v. Peters (7th 1996): the amount of punitive damages should not be affected by the s income. o State Farm Mutual Automobile Insurance Co. v. Campbell (US 2003): 1) The degree of reprehensibility of the s misconduct: - was the harm physical or economic? did the tortious conduct evince an indifference to or a reckless disregard for the health and safety of others? was the target of the conduct financially vulnerable? did the conduit involve repeat action? was the harm the result of intentional malice, deceit or accident? 2) the disparity between the actual or potential harm suffered by the and the punitive damages award. 3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. o Under the above guidelines this case is neither close nor difficult. It was an error to reinstate the jurys $145 mil punitive damages award. 1) it is clear that the court was targeting State Farms nationwide practices and not its treatment of the Campbells. 2) The court does not want to set a cap here, but it thinks that a single digit multiplier is sufficient to deter. Here the multiplier was 145. Excessive. 3) This is more akin to a criminal punishment, which is not suitable as criminal proceedings require more proof. Precedent would put the punitive damages at $10,000. o Reversed and remanded for redetermination of punitive damages. o Scalia dissent: cites his dissent in Gore. There is no such thing as excessive punitive damages. o Thomas dissent: he continues to believes that the Constitution does not constrain the size of punitive damages awards o Ginsburg dissent: Punitive damages are the business of the state, not federal court.

What to remember! Tort is about compensation and efficiency, often uneasily (see, e.g., damages) Tort is also about corrective justice (this is distinct from the other two insofar as it insists on matching up specific victims with their injurers and linking the amount defendants pay to what victims get; the other two goals can be pursued without this link) Tort is also about moral expression (is this just estimate of long-term efficiency?) Incentives matter (my battle with the squirrels) Reason ex ante (kidnappers) Harms are reciprocal (Coase) The law of unintended consequences (JG Wentworth) Take only efficient precautions: Hand formula (is B < pL?) Strict liability and negligence both lead to efficient precautions (in theory) Cheapest cost avoider (Calabresi) Cases often driven by good types v. bad types (see, e.g., Daly v. GM) Legal rules are irrelevant if bargaining is easy (Coase) Safety rules change outcomes and behavior (Peltzman) Public interest v. private interest manifest through public action (Stigler) Ask what (all) actors are trying to maximize (Posner) There is a supply and demand for regulation and for loopholes

Regulation can be a weapon (Baptists & Bootleggers) Negligence v. strict liability: problems for injurers; problems for victims Cost of justice = decision costs + error costs Lawsuits have nuisance value Plaintiffs have informational disadvantage about defendants conduct; and vice versa You (mostly) take your victim as you find them Tort law should put center of gravity of inquiry at possession?