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B. EMOTIONAL Harms
o Assault: Apprehension of immanent personal harm (ie suffering of a battery)Emotional damages are real considerations.
See I. de S. and Wife vs. W. de S. (Hatchet) [79]
• Immanent: in time and space: Conditional threats do not count. See Tuberville v. Savage (If the judges were not
in town…)[] (Admin Costs)
• Battery: must qualify as a battery if carried through (to check the extra-sensitive P) (Deterrence)
o Intentional Infliction of Emotional Distress:
• Extreme or Outrageous conduct: an action that could not fail to produce grave effects to a reasonable person.
See Wilkinson v. Downtown (Your husband had been in a serious accident) [] (Admin Costs, Rules v. Standards)
B. DEFENSES to Trespass
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o Consent: Implicit or explicit privilege.
• Weigh welfarism or utilitarianism vs. rights
• Consent to surgery essential. Despite no intent to injure, an unconsented to operation is unlawful. See Mohr v.
Williams (Surgery on different ear, despite care, violates rights. Nominal damages) [35].
• Recovery limited by intent, nature and good faith of doctor
• However, doesn’t a doctor have privilege? Isn’t the patient’s consent implied? Information
asymmetry?
o Insanity: Not a defense – the intent to act, not to harm, is key to claim. See McGuire vs. Almy (Cartaker hit with a desk
leg) [50]
• Functional: deters lies, encourages others to restrain him
• Fault vs. Non-fault Liability: even though no one was at fault here, someone has to bear the liability
o Self-Defense: The response of a reasonable person in the place of D. See Courvoisier vs. Raymond (Shot a cop
because a reasonable person would have thought the cop was an attacker) [54]
• Reasonable force
• Deterrence: Moral Hazard – strict liability would encourage the self-defender to retreat or hide instead of
engaging. BUT no one is really thinking about the law in a fight.
o Defense of Property: Must give notice because the goal is deterrence, not harm, and force cannot be excessive. See
Bird v. Holdbrook (Hidden spring gun) [?]
• Disclose information: allows people to coordinate activities
B. THE HAND FORMULA: B = PL Cost/Benefit calculations. See US v. Carroll Towing (cost of manning the barge at all
times much lower than the potential damage) [206] Ex ante
o Probability that particular act will cause harm
o Magnitude of that harm if it occurs
o Burden of precautions/value of interest sacrificed
o Res Ipsa Loquitur “the thing speaks for itself” and circumstantial evidence satisfy the burden of production
(1) Event that does not ordinarily happen without negligence
(2) Must be caused by an agency/instrumental fully in D’s control
• Does not need to be actual physical control, ultimate responsibility is what matters
(3) Not due to voluntary action or contribution from P
• Information asymmetry: burden shifts when P can’t know exactly what happened. See Byrne v. Boadle (P is
walking and is hit by a falling barrel of flour, D is liable)
• Still must meet burden of persuasion, rare to win summary judgment. See Morejon v. Rais (Roofing material)
• Liability for malfunction:
• Malfunction justifies res ipsa. See Colmenares v. Sun Alliance (Handrail stopped, clear malfunction)
• Blurry line. See Rose v. New York Port Authority (hit by automatic door could be either)
• EXCEPT when there is a possibility of alternate causation. See Holzhauer v. Saks (Escalator stopped,
someone could have pressed the stop button)
• HOWEVER, must prove used reasonable care. See Howard v. Wal-Mart (Where P slips on soap in isle)
• The Bus Problem: cannot reduce res ipsa to probability, want to encourage discovery of relevant facts.
• Was it feasible to get information
• How much does it cost to get information
• Medical Malpractice: multiple D’s, P cannot easily get information. See Ybarra v. Spangard (drugs) [316].
B. COMPARATIVE NEGLIGENCE
o “Pure” comparative negligence: receive percentage of damages/liability no matter what the percentages are. See Li v.
Yellow Cab (P’s recoverable damages reduced by level in which they were also negligent)
o “Modified”: if fault of P > D, no recovery and vice versa. Small variations (51/49) make this a problem
o Applications:
• Got rid of “Last Clear Chance”
• Assumption of risk still applies
• Strict liability and sudden emergencies aply
• Intentional torts differ, P’s negligence shouldn’t even be considered
• Violation of a safety act: can be, but not automatically
• No “seat belt” defense
• Imputed Negligence rejected by statutes, Rst.
• Limited Capacity applies
o Statutes:
• Federal Employer’s Liability Act [397]: adoption of comparative negligence
• Rst. 3rd and NY have pure comparative negligence regimes
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C. ASSUMPTION OF RISK
o Primary assumption of risk: Matter of law, D prevails because he has not been negligent
• Willfully subject yourself to a risky activity, you assume responsibility for injuries resulting from that risk. See
Murphy v. Steeplechase Amusement (The Flopper)
• EXCEPTION: When there are enough injuries due to the inherent nature of the ride
• EXCEPTION: latent defect (ie not apparent)
• Part of the game. See Maddox v. City of New York (slips on field and blows out knee. Assumed risk)
• EXCEPTION: unexpected. See Maisonave v. The New York Bears (should have net to cover food court)
o Secondary assumption of risk: P took an unreasonable risk (like comparative neg)
• Expertise/knowledge counts against an actor. See Meistrich v. Casino (Decent skater knew ice should have
been zamboni’d better)
• Employee assumes liability if he is aware of special risk. See Lamson v. American Axe & Tool (hatchet)
• Best cost avoider: employee closest
• Information asymmetry: employer knows statistics
• Contract for more money to compensate for the risk
• Fellow servants do not make the employer liable for their negligence – assumed in risk of employment.
See Farwell v. Boston & Worchester RR
o Mandatory Liability for Hazardous activities: Skiing see Dalury v. S-K-I Ltd. (seller cannot contract out of its
responsibility to skiers) [374]. Factors to consider from Tunkl (Charitable Hospital: an agreement is invalid if it does
some (or all) of the following:)
• 1. Is a business generally suitable for public regulation (a dangerous one)
• 2. Offers a service of great importance to the public (hospitals)
• 3. Offers its service to all comers (not limited to a special population)
• 4. Holds disproportionate negotiating power
• 5. Mandates standard contract without offering insurance (waiver of liability = decline to sell insurance)
• 6. The purchaser is placed under the control of the seller, subject to the risk of negligence at the hands of the
seller.
•
C. MULTIPLE TORTFEASORS
o Several Liability: determine liability damages by share of fault of multiple D’s (and P)
o Joint Liability: any of the D’s is completely liable. See Kingston v. Chicago (RR responsible for damage even though
there were two fires b/c RR’s fire was bigger/badder)
• Substantial Factor (vs. But-for) solves for mutual causation
o Joint and Several: any of D’s completely liable, but D can bring action to re-allocate damages among all potential D’s
• D’s act in concert. See Ybarra v. Spangard (ABOVE)
• Multiple sufficient causes (Injury is indivisible)
• Alternative Liability (injuries are concurrent). See Summers v. Tice (D’s must prove who is at fault for
shooting)
• Market Share Liability. See Sindell v. Abbott (Cannot determine which company produced the bad drugs)
• (1) All named D’s are potential tortfeasors (2) The harmful products are identical (fungible goods) (3)P
can’t ID responsible party through no fault of their own and (4) limited number of D’s whose share of
the maret is known and are responsible for a large percentage of the market
• Multiple D’s mess up proportion. See Hymowitz v. Eli Lilly [494]
A. UNEXPECTED HARM: Forseeable (In re Polemis old rule, liable for all effects that are direct consequences)
• It is foreseeable that oil burns on water, so D is liable. See Wagon Mound II (in response to I)
• EXCEPTION: Egg Shell Plaintiff: D takes P as he finds him. See Benn v. Thomas
• Despite proclivity to disease: cancer in Smith v. Brian Leech or schizophrenia in Steinhauser v. Hertz
• D also assumes risk of breaking something valuable
• D pays less to more robust P’s, do not have to consider likely damages, just actual
• Overdeters, insurance policy for egg shell P, P best cost avoider
B. UNEXPECTED MANNER:
• Coincidence is not causation: Central of Georgia v. Prince (missed stop, hotel, burns) [504]
• Intervening 3rd party actors: must be direct effect of negligence
• Intervention does not remove liability: Lane v. Haliburton
• Crime: Generally a 3rd person committing an intentional tort is a superseding cause of harm, even if
D’s negligence afforded the opportunity for the crime (see Watson v. Kentucky employee lit gas on fire)
UNLESS:
o The D should have realized the likelihood of the crime. See Brower v. NY Central (Robbery
normal, RR increased rsik of robbery by hitting the wagon, and is liable b/c they didn’t
protect) [507]
o The D knew a 3rd party would do such a thing. See Hines v. Garrett (missed stop, raped while
walking back, recovers because of the increased risk of rape that reasonably arose from
mistake) [504]
• Subsequent Medical attention: D liable for all subsequent injuries incurred in reasonable attempts to
save P in Stoleson, Pridham, Anaya and Wagner
• No moral hazard (already injured), easy to administer
• Situation: Liable when risky situation arose from negligence, see Marshall v. Nugent (Driver hit while
direct traffic around accident), not liable when original danger comes to rest, see Pittsburg Reduction
Co v. Horton (parent should have protect child form explosive) [505]
• Rescue: Danger invites rescue, want to encourage rescue, so can recover for injury sustained during
reasonable efforts to rescue. See Wagner v. International Ry. [512].
• UNLESS outweighed by intervening actor’s negligence. See McLaughlin v. Mines Safety Appliances
(heating blocks)
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C. FORSEEABLE DAMAGES
o Foreseeable Damages: MOTIVATED BY INTENTION OF THE COURT. D is not liable for damage caused by an
event that was not a consequence of the risk or hazard for which the D was negligent. See Doughty v. Turner (danger
of splash, being burned, is not the same as danger of a burn from an explosion)
• But…in Huges v. Lord Advocate, held liable for lamps that triggered an explosion.
Petition of Kinsman Transit Co. (Kinsman I): Negligently tied ship broke free, careened into and knocked another ship loose, both
crashed into a draw bridge, created a dam and caused massive flooding. ♦ City and shipowner held jointly liable for downstream harm
because crew tending the drawbridge were statutorily required to raise it for drifting vessels and the harm at issue would have been
avoided if they were alert.
- Limitation of forseeability ignored when the consequences of negligent conduct are direct. (Polemis)
- Ship posed a known danger to all ships, structures down river when it was insecurely moored.
o Law of admiralty limits liability of ship owner to value of ship unless owner had knowledge of or
was in privity w/ the act giving rise to the ship’s liability, in this case Steinbrenner not liable b/c
he entrusted ship to more experienced man.
Kinsman Transit (II): Two companies, one w/ ship of grain and another obligated to unload corn sued b/c they could not fulfill their
contractual obligations due to the accident. ♦ Damages too remote for recovery, comparing it to a negligent traffic accident, should the
man who causes a car crash be liable to all who are late to work? No.
A. NO DUTY TO ACT
o Even when the cost is low and the benefit is large because:
• Libertarian: Do not want to force people to act
• Coordination (util): who should help?
• Crowding Out: Administrative nightmare figuring out who is liable for failure to act when there are may
onlookers
o Landowners owe no liability to trespassers: (old rule involved tresspassers, licensees and invitees) See Buch v. Amory
(factory did not owe trespassing kids any duty of care) and Robert Addie & Sons v. Dumbreck
• Trespassers: not owed any duty
• Licensees: social guests, not allowed to trap them and must reveal concealed dangers
• Invitees: business guests (ie shoppers) owe them huge duty.
• CALIFORNIA: reasonable person standard. See Rowland v. Christian (Should have warned guest of broken
sink)
o Rst § 315: No duty unless special relationship that imposes duty. See Harper v. Herman (even if D knew P was going
to dive and that diving would kill him/make him quadrapoligic, there was no duty to act)
o Doctors do not need to help people, even if it is no burden on them. See Hurley v. Eddingfield (Doctor not liable when
he refused to treat a dying man and that man died, because no duty of care)
o Some movement back to strict rules (Metro-North Commuter Rail v. Buckley: freaks out because of asbestos awareness
class, must prove sickness/ “danger of impact”). Can recover in Norfolk and Western v. Ayers (asbestos) because he is
actually sick and concerned about his death. DISSENT: money paid to whiners is money unavailable to people with real
symptoms later
E. RELATIONAL INTERESTS
o Loss of consortium is non-recoverable injury. EXCEPTIONS:
• Spouses: can recover. See Diaz v. Eli Lilly.
• Children: most jurisdictions allow parents to bring actions for loss of child’s companionship
• However, not all juris. allow children to bring claims
• Unmarried Partners: typically no cause of action, but changing. See Lozoya v. Sanchez: NM, must rprove
substantial relationship: nature, duration, monogamy, exclusivity, commitment. Burden on P
F. TORT IMMUNITIES
o Relational
• Parental immunity: “reasonable parent” standard of an “ordinary, prudent parent” See Gibson v. Gibson
• Old rule: court couldn’t maintain tort action against parent
• New Rule: no blanket immunity.
• Court will not question “acts of parental discretion” or second guess parental authority (can
still prosecute criminality) See Goller v. White
• Court does not want to impose on the family relationship, worry about fraud/collusion so they
can collect on insurance (most insurance policies have family exclusions)
• Spousal immunity mostly gone.
o Charitable: donors no longer immune from claims from beneficiaries
o Sovereign: outside the system, unless waived: Federal Torts Claims Act gives a General reasonableness test with series
of no or limited duty exceptions:
• Discretionary function exception: courts will not second guess Gov’t employees as long as they are following
procedure. See Berkovitz v. United States (Failure to follow procedure is not discretion)
• Failure to protect from threats overburdens police. See Riss v. City of New York
o Gun Manufacturer: PLLAA prohibits liability for misuse of guns by others, wanting to prevent the reckless expansion
of common law liability in a heavily ligitated industry
• EXCEPTIONS: negligent entrustment, illicit sales, and warranty claims. See City of New York v. Beretta.
o Public Policy entitlement to “undisturbed possession and lawful enjoyment of his own property”
Hay v. Cohones Co. (explosion to dig canal. Absolutely liable: D has right to blast, but also is liable for
potential damages) [657].
Booth v. Rome (determine negligence if there was no physical invasion: Public policy to promote building)
[656] Percussive impact not a helpful category: do not want to make blasters insure poorly constructed
buildings.
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C. NUISANCE
o Substantial and unreasonable interference with the right of an owner of land to the use of enjoyment of their land (not
against light or air)
o Rst. 826: Unreasonableness of intentional invasion:
• (a) gravity of the harm outweighs the utility of the actors conduct OR
• (b) the harm is serious and the financial burden of compensation is feasible
o “Coming to nuisance” irrelevant – property changes. See Ensign v. Walls (Dog business) [696]
• Prevent a “race to develop”
• Right to potential use
• (1) No Nuisance: D enjoins P’s use, creates a property right which P can buy from D
• Fontainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc. (Spite Tower. No legal right (easements) to light or
air) [687]
• D can contact with P for air right
• (2) Nuisance: P enjoins D’s use, creates a property right which D can buy from P
• Whalen v. Union Bag & Paper Co. (Pulp mill pollutes stream, causing tiny damages to P. P has right to
injunction if damages are small) [701].
• Collective bargaining/holdout theory may prevent contracting around injunction
• (3) Nuisance: D pays damages to P, court bargains for parties and D can choose to pay future damages or stop behavior
• Boomer v. Atlantic Cement Co. (Permanent damages, no injunction, forces neighbors to sell their entitlement
and pressures cement plant to research less pollution) [700]
• Dissent: Public policy, should not force people to contract around nuisances that we know are bad. Encourages
pollution in leas populated and poor areas.
• (4) No Nuisance: P pays damages D, P must purchase right to injunction
• Spur Industries, Inc v. Del E. Webb Development Co. (Ranch was a nuisance without wrongdoing, developer not
free from liability to Ranch owner for losses sustained) [708].
D. PUBLIC NUISANCE
o “Substantial interference with the exercise of a common right of the public”
o Requires “special inquiry” to be able to recover damages
• Allows those with special damges to recover when public bodies/officials will not move on specific claims
• Generally public officials and state Attorney Generals bring public nuisance cases
532 Madison Avenue v. Finlandia: Bricks falling causing lost profits. ♦ Public nuisance only actionable w/ special injury, πs suffered
greater harm than some not a different kind of harm.
Camden County v. Beretta: Gun suit failed public nuisance claim. ♦ Defective products not a public nuisance by law but fall under
product liability, and Δ has a lack of control that bars recovery. Public nuisance claims are typically confined to real property and
violations of public rights.
Winterbottom v. Wright: Defect in Δ’s coach, π hurt. ♦ No privity between parties = no remedy. OLD RULE
MacPherson v. Buick Motor Co.: π hurt by defective wheel of Buick car. ♦ π owed duty of reasonable care by Δ who was responsible
for foreseeable danger that could have been prevented by reasonable care.
- If nature of thing is such that negligence could have made it reasonably certain to harm, Δ owes duty.
- No longer a need for a contractual relationship for liability in product liability cases
Escola v. Coca Cola Bottling Co. of Fresno: π stocking Coke when bottle exploded in hand.
- Traynor’s dissent: Movement to a standard of strict liability, “res ipsa loquitur” in product liability cases
o Even w/o negligence manufacturers should be responsible for their products
o Inference of negligence can be dispelled by an affirmative showing of proper care because the
injured π is not in a position to prove negligence.
o Food stuffs already had strict liability, customer has no ability to investigate products
Hennigsen v. Bloomfield Motors: Won warranty claim but not on tort theory, implied warranties run even in absence of privity and w/
exclusivity terms.
Greenman v. Yuba Power Products: Tort side moving towards strict liability too. π wins in spite of not fulfilling “reasonable time”
requirement.
Speller v. Sears, Roebuck & Co.: Fire in π’s home, experts disagree on cause. ♦ Jury to determine whether or not fridge defect caused
the fire, π can win with circumstantial evidence in certain circumstances.
Barker v. Lull Engineering: Design defect case, high-lift loader case.
Halliday v. Sturn, Ruger, & Co.: π’s son accidently shot himself with his father’s gun. π claimed gun defective and unreasonably
dangerous, calling for a “risk-utility” analysis not a “consumer expectation” test. ♦ Court stated no cause of action existed, the court
will use “consumer expectation” analysis.
Liriano v. Hobart Corporation: Guy gets hand cut off. ♦ Substantial modification does not cancel duty to warn, does cancel out the
design defect claim.
Compensatory damages try to make the π whole in one lump sum payment.
Recoverable Damages
- Lost wages (present and future)
- Medical care costs
- Pain + Suffering (very inclusive, non-pecuinary)
o Injuries, loss of happiness, pleasure w/others
o Limited by statutes in many places, juries often unaware of the caps
- Collateral source rule: Doesn’t matter in torts (if you have insurance paying health costs you
can still recover for full medical costs)
- In settlements there are matrices (insurance, lawyers) that set damage payouts.
- Tort claims are not taxed?
Pecuniary damages:
- Pecuniary damages (lost wages, medical costs) reproduce inequalities in society
- P+S damages won’t always make up for inequalities, discrimination, b/c it depends on
charisma of π.
- Chamallas “The critique of torts from race and gender”
o Tort law privileges pecuniary damages, those for physical harm over pain and suffering
o Tort system insures all of the rich more, reproducing market inequalities
o Non-market quality of pain and suffering may be a way to modestly correct tort system.
Per diem Rule [780]: Calculate damages one second or minute at a time, then multiply over all time left to
suffer – gets juries to award bigger damages (but is prohibited in some courts)
Sullivan v. Old Colony Street Railway: ♦ Purpose of damages is to give money equivalent to the actual loss caused by another’s
wrongs.
Zibbell v. Southern Pacific: Acknowledgment that money can’t truly make π whole, but it’s the best option.
O’Shea v. Riverway Towing Co: Question about accounting for inflation. Either discount and calculate future value or don’t in either
amount.
Feldman v. Allegheny Airlines: Woman died in plane crash. ♦ Damages limited by 8 years because court assumed she would want to
raise children.
McDougald v. Garber: π was comatose after birth gone wrong. ♦ Not conscious of pain and suffering, can’t recover for loss of
enjoyment.
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Punitive Damages
- Common law doctrine, state tort law often limits and caps excessive awards
- BMW v. Gore first where SC struck down punitive damages as unconstitutional (500 – 1 ratio)
- State Farm: 3rd party liability case, can’t base punishment on Δ’s dissimilar conduct than in
case.
o Punitive damages can only be based on single act in case, can’t punish for other acts!
The fact that the Δ harmed other people not relevant to damages.
- “Multiplier theory” provides reasoning of deterrence in case where we still want the activity to
happen
o 1 π representing tacitly the harm done by negligence.
- Wealth not a factor if you want (BMW): marginal utility of a dollar less to a rich than poor
person, there is no rule that a π MUST introduce evidence of a Δ’s wealth (optional)
Rationales
- Compensatory damages do not always compensate fully, high punitive damages can make up
for objectively calculated compensatory damages if the activity in question has no social
value (no fear of over-deterrence)
- Punitive damages are necessary in some cases to make sure tortuous conduct is not under-
deterred
- Make sure that people channel transactions through the market when costs of voluntary
transactions are law
- Express community’s abhorrence of the act
- Relieve pressures on the criminal justice system
Kemezy v. Peters: Police beating case. 10k compensatory, 20k punitive. ♦ Court rejects rule that would require π to establish evidence
of a Δ’s wealth, this should solely be optional up to the π.
State Farm Mutual Auto Insurance v. Campbell: Application of BMW guideposts. ♦ Remanded for more calculation.
Exxon Shipping Co. v. Baker: Ship ran aground in Alaska, captain was drunk. 2.1 billion spent in clean up, 1 billion in civil claims.
Court awarded 5 billion punitive damages, lowered to 2.5 billion by 9th Circuit. ♦ Supreme Court reduced award to 500 million,
punitive damages in vicarious liability cases okay, but his was unconstitutionally excessive.
o Punitive Damages
• Deter those who are not deterred by the threat of liability or paying compensatory damages in order to alter the
cost-benefit calculations due to
• Difficulty in proving causation
• Willingness to pay to harm P
• Insufficient attention/negligence
• Balance Deterrence against Due Process considering: (BMW/State Farm)
• Degree of reprehensibility of act
• Disparity or proportion between harm/potential harm and damages awarded
• Difference between this calculation and civil penalties
• Philip Morris