• Abstract and Figures
• Public Full-text

Torts- Fall Quarter- Class Notes and Briefs ******************************************************************************

I. Intentional Torts Section A. Battery 1.) Intent and Volition  What is a Tort? A civil wrong the resolution of which isn’t governed by contract o Arise in absence of contractual relationships o Common law (judge made law) v statutory law o  Vosburg v Putney—Intentional Torts: Intention and Volition (kid taps kids puss filled knee) 80 Wis. 523, 50 N.W. 403 (1891) o An intentional tort—different from negligence b/c of intent o Unlawful act—impermissible act, or not allowed under the circumstances o Reciprocal reciprocity (risk)—doesn’t apply to the classroom—but would be an expected risk to either parties if they played soccer (assumption of risk) o Inevitability- stuff happens day to day—jostled on a bus per se o Presence of intent to harm does lead to liability, lack of intent leads to liability if act was unlawful, sort of a weaker indicator of liability. o Actor is subject to liability if he/she intends harmful or offensive contact or if harmful or offensive contact results. o Offensive contact—if it offends a reasonable sense of personal dignity o Damages—rule for torts is different from contracts. Torts—you pay actual damages. Contracts you pay average expected damages (could be more or less than actual). Contracts have an implicit price and average expected damages is a policy move for full disclosure in entering contract. o It takes 2 to Tort—plaintiff’s conduct. Matters less in intentional torts cases. o Egg shell skull—you take the π as you find them

Knight v. Jewett (touch football gone awray) California 1992 Facts: K. and J. playing a game of touch football w/friends. J gets a little rough with K and K tells J that is he doesn’t watch it, she won’t play anymore. Later in game, J knocks K down and unintentionally steps on her finger. K’s finger is crushed and later amputated. K sues J for battery. PP: Trial court gave ruled for J. Holding: Supreme Court affirms Rule: Requisite element of assault and battery is intent. Reasoning: J did not intend to step on K’s hand and injure her. Class Notes: Why is it different from Vosburg? -issue of intent -implied consent in participating in the game -reciprocal risk -inevitability- stuff happens (within reason—degrees of conduct: ie hockey-beating down with a stick is battery)

o White v. University of Idaho (piano teacher touches student) 1 Idaho 1989 PP: Trial court rules for W granting damages Facts: Piano teacher instructing W in her home. Teacher comes up behind W and touches her on her back with both hands to demonstrate a piano technique. W is seriously injured. W claims act was unpermitted and offensive and took her by surprise. W sues prof and University for battery Holding: Affirms Rule: Intent element doesn’t require a desire to bring about a specific injury or result. Intent is satisfied if act causes intended contact that is unpermitted and harmful or offensive. Class Notes: -Why is this different from Knight?  touching was intentional although the harm wasn’t, unlike in Knight  Offensive contact case: contact is offensive if it offends a reasonable sense of personal dignity; Restatement: in order to be offensive, must be one that would offend the ordinary person, be unwarranted by social uses present at the time it was inflicted—see notes page 4 -Subjective test vs. Objective test  Subjective: was it unwanted  Objective: would a reasonable person find offensive  language suggests that court in White used a subjective test-White wouldn’t have consented to touching. o Polmatier v Russ (crazy man shoots father) Connecticut 1988 PP: Trial court found not guilty by reason of insanity. The decedent’s wife (victim) then brought suit for wrongful death in civil trial. Trial court ruled for plaintiff (wife) Facts: R kills father in-law with a shotgun. R suffers from extreme case of paranoid schizophrenia and thought his father in law was a spy that planned to kill him. Russ claims act involuntary and insanity trumps intent (not capable of making reasonable choice) Holding: Affirmed Rule: Rational choice not required to form intent. Insane person may have intent to invade the interests of another even though his reasons/ motives may be irrational. Reasoning: Insane held liable as public policy point to push/secure efficient custody and guardianship (public policy stance). Class Notes: - Act: a voluntary act- doesn’t cover reflexive, automatic, epileptic or thing done while asleep - Two issues: voluntary act and intent - Crazy person can have requisite intent o Laidlaw v Sage (bank bomber and the human shield) NY State 1896 PP: Case tried several times due to court errors. Trial court finds for π. Δ appeals Facts: Man holds up bank with threat of bomb explosion. Δ used clerk π as a human shield (distracts man w/ bomb and denies req. for money while moving towards π and placing π btwn him and the bomb). Man detonates bomb killing himself, damaging building and injuring π severely. Δ unscathed. Holding: Reversed for S. Rule: An act or omission done or neglected under the influence of pressing danger was done or neglected involuntarily—ie. intent not established—not intent. 2 Class Notes: -Similar to Polmatier in an irrational act. -Time element matters—imminent danger-no time to think abt. Consequences/ reflexive - Torts usually used to defer bad behavior—have a greater policy impact or change in Behavior (social deterrents) -No time for torts to have an impact in Laidlaw case or create incentive for future behavior -If crazy person thought they were in imminent danger but were not and acted, court might rule for liability—public policy issue

Garret v Daley (kid tricks old lady) Facts: (kid moves chair. Old lady trips over chair, falls and makes contact with floor) Reasoning/ Rule: Don’t need to touch but cause contact btwn plaintiff and something elseto be liable for battery -Knowledge that contact has potential to occur is enough for liability o Keel v. Hainline (eraser tosser hits bystander) Okla. 1998 PP: Trial court rules for Plaintiff against all of the defendants. One defendant, K, appeals saying trial court erred in judgment on jury verdict Facts: Kids in class are engaged in horseplay and throwing wooden erasers and chalk. Victim not a participant. Victim is hit by eraser that may or not have been thrown by defendant who was a participant in horseplay. Victim loses an eye. Victim sues several of boys engaged in horseplay Holding: Held for plaintiff-trial court did not err. Keel was liable Rule(s): -If the act causing the injury was unlawful/ wrongful, the intent is necessarily wrongful. -Transferred Transferred Intent: Accomplices who encourage, procure, instigate, abet or aid the act are also liable. -Transferred Intent: If A attempts battery against B but mistakenly hits C instead, C can sue A for battery. A’s intent toward B are combined with the harmful nature of contact to C to create a battery. Other Rules: Collecting Judgment . Common law doesn’t hold parent liable for their kid’s tortuous acts. (Rule modified by statutes of some jurisdictions . Respondent Superior: Employers can be sued for acts of negligence committed by employees in the course of their employment (think White v Univ. Idaho and hardware case too) Class Notes: -Act is unlawful in itself, despite when it occurred. Throwing hard erasers is reasonably considered harmful -Transferred Intent- have to establish liability btwn the two parties before you can transfer to the 3rd.- -Hypo: A throws eraser at B during horseplay, misses B and hits C. A is liable for injury to C. B also is liable for participation. -B’s consent is implied through participation -A and B could have sued each other too (if A if found liable, can sue B for his part of the judgment (jsl and apportionment) o Manning v. Grimsley (pitcher assaults fan) 1st Circuit Court 1981 3 PP: Trial court ruled for Δ. On appeal, appeals court ruled for Δ and Orioles. Π appealed again. Facts: π was a spectator at baseball game. Δ, the pitcher for the Orioles, was heckled by people in stands. Hecklers may or may not have included π. Δ threw ball at 80mph in direction of hecklers into stands. Ball broke through barrier striking and injuring π. Holding: Appeals Court reversed in favor of Manning--π. Rules(s): -Actor subject to liability to another battery if intending to cause a 3rd party apprehension of a harmful contact and causes the other party to suffer a harmful contact. -Assault: To intentionally cause someone to have imminent apprehension of being hit is to commit an assault. Reasoning: G. intended to throw ball at hecklers. Battery claim is supported because Δ intended to cause them apprehension of being hit—transfers to intent to cause conract. Class Notes: assault—intended to cause apprehension of being hit

Class Notes: 9/28— -What we learned from Vosburg v Putney -Intro to liability rule—Has 2 Main Basic Rules of Who Pays with Many other Lower Rules -Rule: Wrongdoer rule: if you intend harm, you pay. Basic tort law-foundational -Shared Pay rule-takes 2 to tort- 40% 60% etc. (contributory negligence with fee sharing) -Sometimes a no pay rule -Rule: Causee pays regardless of intent—contender with wrongdoer pays. -Torts—major theme is restorative/ corrective justice -sort of a narrow view-inward looking, only taking into account 2 parties -Another major theme is deterrent justice -Pros and Cons -but having to pay makes one less likely to recommit -if plaintiff has no incentive to enforce the initial wrong—why report crime if n recourse -cheaper than having rules where one has to avoid the injury: ie everyone wearing shin pads -public policy -Damages -If you cause injury, you pay for all injuries you cause -problem of proportions—based on actual damages caused—not always equal to the crime.

2.) Minimum Requirements *Requirement/ Rule: For battery, the defendant must commit or cause a harmful or offensive touching of the plaintiff. * Things to define and determine in figuring battery: act, intent, cause, harmful, offensive, contact Issue: What must contact btwn parties be to be deemed “harmful or offensive”?

Leichtman v. WLW Jacor Communications, Inc. (radio host blows smoke in guest’s face) Ohio Court of Appeals 1994 PP: Trial court dismisses saying w/o showing of malice, willfulness or specific wrongful intent, defendant not liable. Plaintiff appealed. Facts: Antismoking advocate Leichtman goes on radio show. Host gets the other guest to smoke a cigar and repeatedly blows smoke in face of Leichtman. L. sues radio station, hosts and other guest for battery based on intentional discomfort, distress and humiliation. Holding: Reversed. Tobacco smoke is “particulate matter” capable of making physical contact and of offending a reasonable sense of human dignity. Rule: If act was intentional, defendant is liable. 4 Class Notes: -Offense-needs to be put in cultural context. Smoke not offensive in 1940 but offensive in 2005.

Madden v/ DC Transit System (pedestrian pissed off by bus emissions) DC 1973 Facts: While standing on traffic island, π contacted by fumes and offensive oily substances that the defendant permitted to spew from two of its buses. π claimed Δ aware of emissions and thus act was intentional. PP: Madden sought $70,000 in damages from defendant for assault and battery. Trial court dismissed on lack of showing of malice, wrongful intent or willfulness needed to establish liability. Holding: Affirmed.

6. Morgan v Loyacomo (mistakenly confronts customer thought shoplifiting) Mississippi 1941 Facts: Morgan purchased underwear from Loyacomo’s store. Manager suspected M. took 2 pair but paid for only 1. Manager followed M. from store several blocks and verbally confronted her in front of others. Manager seized package from under her arm and discovered he was wrong. PP: π sued for battery (slander and assault too). Trail court ruled for plaintiff. Holding: Miss. Supreme Court affirmed. Rule: To constitute assault and battery, it isn’t necessary to touch the plaintiff’s body or clothing; knocking or snatching anything from their hand or touching anything connected to them in a rude or insolent manner is sufficient. (As object with which contact was made gets further away, case for battery gets harder to ascertain/prove.) Class Notes: -Offensive contact case; even would be offensive if not done in front of others (ie. White v.U. Idaho) -Objective test for offense—would a reasonable/ avg. person find it offensive

7. Wallace v. Rosen (woman tapped and falls down stairs) Indiana Court of Appeals 2002 Facts: π was delivering homework to child at public HS. Π and child standing on stairwell landing when school started a fire drill and alarm sounded. Δ., a teacher, led class to stairwell, told π to move it and placed fingers on π’s shoulders turning her toward stairwell. Π tripped and fell down stairs. (π was recovering from foot surgery and less stable than usual.) π was injured and sued Δ and school district. PP: Judge in trial court didn’t instruct jury on battery (or that they could consider that). Jury found for Δ. Π appealed citing refusal to instruct on battery. Holding: Court of Appeals affirmed. Reasoning: -In crowded world, certain amt of contact must be expected. W/o expression of the contrary, consent for a reasonable amt of touching is assumed for what is necessary and customary for daily intercourse of life (ie. tap, jostle, friendly arm grasp). -π had duty to evacuate students. Touching not rude, angry or insolent. Rule: What would be offensive to an ordinary person not unduly sensitive as to personal dignity.

Notes: Offensive Contact from the Restatement of Torts -Meaning of “contact with another person”: All that is needed is if the actor intends to cause the other, directly or indirectly, to come in contact with a foreign substance (clothing, liquid, gas, something in contact with actor’s body, dog etc.) in a manner which the other will reasonably regard as offensive.

-Knowledge of contact: In order to be liable, not necessary for the plaintiff to be knowledgeable of the offensive contact at the time it occurs. The actor’s liability based on the intentional invasion of the other’s dignitary interest and the 5 affront of the other’s dignity. Example: A kisses B while B asleep but doesn’t waken or harm B. A is subject to liability to B. -Necessity of intention: Example: A throws water out of window at night not intending to wet anyone. A knows B is walking down street and there is a strong likelihood that B may get wet. A is not liable to B if a small amount of water splashes B but doesn’t do B harm. Basically-no intention of harm and no real harm done then no liability. Versus: A throws dirty water out window at B on the street below. A few drops fall on B’s hand but don’t harm him. A is subject to liability to B.

-What constitutes offensive conduct: A bodily contact is offensive if it offends a reasonable sense of personal dignity. Example: A while walking in a crowded street, deliberately but not discourteously pushes against B in order to pass him. This is not an offensive touching of B. Example: A, who is suffering from a contagious skin disease, touches B’s hands, thus putting B in a reasonable apprehension of contagion. This is an offensive touching of B. 6. Cultural relativity-what is considered offensive differs over time and place in cultures. Restatements are only generalizations not dictates

3) Consent and its Limits Does consent to touching remove liability? 1. Grabowski v Quigley (ghost surgery—doctor switheroo) PA Supreme Court 1996 Facts: π injured back when he fell on ice. Sought treatment from Δ, a surgeon. Π agreed to surgery after consultation w/Δ. Surgery performed. After surgery, π had foot problems and Δ suggested more surgery. Π sought 2nd opinion and medical records and discovered 1st surgery largely performed by a colleague of Δ and that he was out of town during most of it. Δ had not known and received call and opted for colleague to do operation rather than wake π. Π sued Δ and colleague saying they were liable for battery b/c he did not consent for the other doctor to do the surgery (“ghost surgery”) PP: G sues for battery. Trial court rules for defendant Holding: Reversed Rule: Where a patient is mentally and physically able to consult about condition in the absence of an emergency, the consent of patient is required for a surgical operation by his doctor. An operation w/o consent is technically an assault. Reasoning: G did not give consent to Q and colleague to do surgery in that manner or for colleague Bailes to do it at all, so the surgery amounted to batter. Class Notes: -Imposing liability may have a public policy motive- forces hospital to give relevant information to patients—Information forcing -onus on patient vs onus on hospital

2. Brzoska v. Olson (HIV positive dentist doesn’t tell patients) Delaware 1995 Facts: Owens, a dentist, tested positive for HIV and developed full AIDS a year later the entire time continuing his medical practice till 1 month prior to death. Group of patients who did not know sued estate for battery and sought damages for mental anguish and a refund. Also claimed lack of consent-had they known health status would not have consented. PP: Suit for battery. Trial court ruled for defendant. Holding: Affirmed. Rule: Offensive character of contact or fear of contact is assessed by a “reasonableness” standard Reasoning: Patient’s fear of contracting AIDS was unreasonable. No proof of actual exposure- ie. fluid to fluid contact. Consent in dental/medical setting limited to when doctor performs a procedure when the patient has not consented. Class Notes:

6 -To rule in plaintiff’s favor would open up floodgate of litigation—anyone can fish for information and go back and sue; but could have rule of mandatory disclosure for docs having infectious disease?—but such rule could invade privacy of doc—info erroneous to patients -Doc’s condition has no impact on patient and info not withheld -Mistake: Fraud vs. Collateral mistake

3. Cohen v. Smith (woman seen nude by male nurse despite religious objections) Illinois Court of Appeals 1995 Facts: C. was pregnant and consented to a c-section. Informed doc who informed hospital that her religion prevented her from being seen unclothed by a man other than her husband. C. informed that during operation was seen and touched by a male nurse. PP: Suit for battery against hospital and male nurse brought to trial court and dismissed. Appealed to court of appeals. Rule: Consent and individual’s right to refuse treatment. Holding: Reversed. Reasoning: Similar to cases of blood transfusions and Jehovah’s Witnesses. Hospital intentionally disregarded her request/ beliefs and inflicted emotional distress & battery.

4. Werth v. Taylor (Implied consent—Jehovah witness and blood transfusion) Michigan App. 1991 Facts: W, a Jehovah’s Witness, doesn’t believe in blood transfusions. After delivering twins, W. fell ill/ bleed and Doc. Parsons recommended surgery but bleeding continued to point where doctor thought that w/o transfusions she’d die. Another doctor, T., ordered transfusion but Doc P warned that W a Jehovah’s Witness. T did it anyway. W recovered. Prior to surgery, he had told doc didn’t want to die but didn’t want blood and to use alternative treatment. PP: W. sued hospital, Doc P and T for battery. Trial court ruled for defendants. Appealed. Rule: Law implies consent of an unconscious patient to medical procedures needed to preserve patient’s life. Consent is implied when an emergency procedure is required and there is no opp. to obtain actual consent (at time of emergency). Holding: Affirmed Reasoning: W. was unconscious at time of decision and prior refusals were not made when she thought her life was in danger or hung in the balance. Refusals thus not informed or contemporaneous

5. Notes: Consent and its Consequences from Restatement (2nd) of Torts-Meaning of Consent 1. Consent is willingness in fact for conduct to occur. Shown by action or inaction and need not be communicated. 2. If words or conduct are reasonably understood by another to be intended as consent, it is apparent consent and as effective as consent in fact. -Apparent Consent- Even it person doesn’t in fact agree to conduct of actor, his actions, inaction, or words my manifest consent. Example: A, a dude, is alone with B, a gal, in the moonlight. A proposes a kiss. B, inwardly objects but is silent and does not resist or protest. A kisses B. A is not liable to B. Example (not apparent consent): A argues with B and A threatens to punch B. B says nothing and stands ground. A punches B. A is liable to B. More examples-page 21

Note: two types of consent: implied and actual. Also two types of implied consent: in fact and in law

7 6. Rains v. Superior Court (Sluggo—psychotherapy with battery) California Court of Appeals 3rd District 1984 Facts: π’s were patients at psychotherapeutic center run by defendants. Π consented to physical violence on their persons by Δ and other patients under direction of Δ as a treatment-sluggo therapy. π alleges Δ used the treatment as coercion to stay in program, serve w/o compensation, make donations and recruit patients. PP: Suit for battery. Δ’s demurrer sustained and plaintiff appealed. Rule: If consent given by deception or fraud on part of actor, actor liable. Holding: Held for plaintiffs. Reasoning: Physician obtained consent fraudulently and consent is thus legally ineffective.

7. Freedman v. Superior Court (woman unknowingly takes drug 8. that induces had labor) California 1989 Facts: F. in labor. Doc told to request drug saying it would prevent infection. F. took drug and later found that it induced hard labor. PP: Battery suit dismissed by trial court on demurrer of defendant. Rule: To vitiate consent the mistake must extend to the essential character of the act itself, ie that which makes it harmful or offensive, rather than a collateral matter that only acts as an inducement. –Deception must go to essential character of the act to which consent was given. Holding: Affirmed for defendant. Reasoning: Deception was merely an inducement and did not change essential character of act to take the drug. However, if plaintiff had said that she was given the drug given simply to speed up labor so doc could have weekend off would have been different.

9. Neal v. Neal (wife says sex with hubby= battery cuz he was having affair) Idaho 1994 Facts: Mary N. discovered husband Thomas having an affair. π sues for battery as she wouldn’t have had sex with Δ during affair had she known about affair. Π argues that consent she gave was induced by fraud so sex = battery. PP: MN sues TN for divorce and battery. Court rules for Δ—says that at the time of the act and consent, the act was not offensive—can’t undue consent b/c of knowledge later acquired. Holding: Ruling dismissing batter is reversed and remanded—question of fact for jury. Reasoning: Consent not just measured by what was known at the time consent was given; if that were the case consent could never be vitiated due to fraud or deceit. Court says wife could have acted under a substantial mistake as to the nature of the contact (ie. w/a faithful partner) Class Notes: -case given more meaning in age of AIDS -essential act= sex within faithful marriage

10. Fraud and Mistake from Restatement of Torts §892 B -Consent under mistake, representation or duress -A consents to box with B. B knows A is unaware that A has heart condition. B punches A in chest and A has heart attack. B is liable to A for battery. -A permits B to stain A’s face with juice for a masquerade. A doesn’t know juice leaves permanent stain and B knows that A doesn’t know this. B is subject to A for battery.

-Fraud or mistake as to collateral matter (also collateral mistake)-Liability -A to induce B to submit to sex, offers B a paper which A represents to be $20 but which A knows to be counterfeit. B thinks paper is legit and submits to sex. A is not liable to B for 8 battery. -Same facts as above except paper is offered to B to submit to blood transfusion. A is subject to B for liability for harm done by operation which A fraudulently induced B to submit

11. Hart v. Geysel (Consent to Illegal Acts) (illegal prizefight) Washington 1930 Facts: Cartwright and G participated in illegal prize fight. Cart died from injuries and administrator of estate (π) sued G for damages. G says C consented to fight. PP: Dismissed Holding: Affirmed Rule: One who consents to suffer a particular invasion as a matter of sport has no right to complain if another acts upon consent. (ie consenting to a prizefight—can’t complain if you get hit or hurt) (assumption of risk)

12. McNeil v. Mullin(buggy road rage) Kansas 1905 Facts: π. and Δ. Both driving horse drawn buggies and hurling insults. They dismounted and fought. Π sued Δ to recover $ for injuries he got from fight. Δ argued π should be barred from suing due to his consent to fight. PP: π sued Δ for battery. Trial court rules for Δ. Holding: Supreme Court reversed and remanded for new trial. Rule: Consent to an assault is no justification. (Consent to unlawful act is not defense to a claim of battery.) Reasoning: Both parties consented; neither acted in self defense. But, π’s consent not enough to dismiss claim for battery. In matters of breach of peace, both parties held liable to third party (the state) and both are open to punishment and all criminal and civil consequences of their breach of peace. Class Notes: -Contrast with case of Fagan v. Atnalta, Fagan could have sued the other dudes in the fight for battery, but had no case with the bar b/c he assumed the risk which meant the bar had no duty to him.

13. Dueling and Deterrence Talks about how legal rules can influence behavior. What makes McNeil different from Hart case? Both are illegal acts. Is Hart considered illegal but not a breach of peace while McNeil’s was a breach of peace? Is that why it is different?

14. Consent to crime From the Restatement of Torts §892—may be a minority opinion, follow case law instead 1. Consent is effective to bar recovery in a tort although the conduct consented to is illegal 2. If conduct is made criminal in order to protect a certain class of people irrespective of their consent, the consent of those people to the conduct is not effective to bar tort action. -A and B agree to duel w/ pistols. A fires B and his bullet breaks B’s arm. A is not liable to B. -A law makes sex with a person under 16 = rape. B solicits A, a girl of 14, for sex. A complies with B. A’s consent doesn’t bar her action for battery—B is liable. (law made to protect minors, so their consent doesn’t absolve actor of liability) -A law makes adultery a crime. A commits adultery w/B. Neither is liable to the other for contacts inseparable from their crime. (law not made to protect a certain class of people)

9 15. Hollerud v. Malamis (don’t wrestle with a drunk guy) Michigan Court of Appeals 1969 Facts: π ended a night of drinking with more drinks at Δ’s bar. Π engaged in “Indian wrestling” match with bartender. π was injured and injury impeded his work. PP: Trial court ruled in favor of Δ. Π appealed to Court of Appeals. Holding: Reversed. Rule: If a person is incapable of expressing a rational will and actor had knowledge of the person’s state, the consent is ineffective. Reasoning: π too drunk to make rational choice and Δ’s bartender knew this—esp since π came in drunk.

16. Miller v Couvillion Louisiana Court of Appeals 1996 Facts: π was worker at hardware store. π injured while assisting store manager, S, in a karate demonstration. Placed block on forklift while Savage tried to break it. Announcement called for customer assistance and while π was getting down from forklift, S hit block again causing π to fall and hurt arm. Π sued employer, insurer and S for battery (an intentional tort) saying store was vicariously responsible. Holding/ Reasoning: For the Δ. There was no battery. Store manager’s actions were not intended toward the π nor was his act offensive or insulting so as to result in personal indignity to employee. The fact that Δ’s act was in poor judgment, reckless, or negligent because of employee's position did not equate act to being intentional contact with employee

Class Notes 9/29/05 -prima facie showing—“on the face of it,” have to establish battery (intent etc) right away -Consent can be a defense to an intentional tort (he did consent) but sometimes used as an element of a prima facie case (I didn’t consent) -Consent generally a complete bar to liability/ intent.

C. Conversion

Key Terms: -trespass de bonis asportatis: [Latin "trespass for carrying goods away"] 1. A wrongful taking of chattels. • This type of trespassory taking was also an element of common-law larceny. 2. At common law, an action to recover damages for the wrongful taking of chattels. -- Abbr. trespass d.b.a. -- Often shortened to trespass de bonis.

-writ of detinue: common-law action to recover personal property wrongfully taken by another. "A claim in detinue lies at the suit of a person who has an immediate right to the possession of the goods against a person who is in actual possession of them, and who, upon proper demand, fails or refuses to deliver them up without lawful excuse.” Person has option to pay for it.

-trover: A common-law action for the recovery of damages for the conversion of personal property, the damages generally being measured by the value of the property. -- Also termed trover and conversion. Trover evolved into the tort we now know as conversion. Also covers found items and refusal to return-historically was only for found goods, but eventually covered also types of trespass.

10 -conversion: A common-law action for the recovery of damages for the conversion of personal property, the damages generally being measured by the value of the property. -- Also termed trover and conversion. Also covers found goods—having found, kept for themselves.

--chattel: Movable or transferable property; personal property; esp., a physical object capable of manual delivery and not the subject matter of real property. "That Money is not to be accounted Goods or Chattels, because it is not of it self valuable .... Chattels are either personal or real. Personal, may be so called in two respects: One, because they belong immediately to the person of a Man, as a Bow, Horse, etc. The other, for that being any way injuriously withheld from us, we have no means to recover them, but Personal Actions. Chattels real, are such as either appertain not immediately to the person, but to some other thing, by way of dependency, as a Box with Charters of Land, Apples upon a Tree, or a Tree it self growing on the Ground.... [O]r else such as are issuing out of some immoveable thing to a person, as a Lease or Rent for the term of years." Thomas Blount

--Trespass to chattels and conversion sometimes overlap. For differences, see Restatement (second) of Torts (1965): §217 Ways of Committing Trespass to Chattel A trespass to chattel may be committed by intentionally a) dispossessing another of the chattel or b) using or intermeddling with a chattel in the possession of another.

§218 Liability to Person in Possession One who commits a trespass to a chattel is subject to liability to the possessor of the chattel if, but only if, a) he dispossesses the other of the chattel, or b)the chattel is impaired as to its condition, quality, or value, or c) the possessor is deprived of the use of the chattel for a substantial time d) bodily harm is caused to the possessor or harm is caused to some person or thing in which the possessor has a legally protected interest.

§222A –What Constitutes a Conversion An intentional exercise of control over another’s chattel that so seriously interferes with their right to control it that the actor may justly be required to pay the other the full value of the chattel. In determining the seriousness of the interference and the justice of requiring full payment, consider: 1. extent and duration of the actor’s control 2. the actor’s intent to assert a right that is inconsistent w/ the other’s right of control 3. the actor’s good faith 4. the extent and duration of the interference w/ the other’s right of control 5. the harm done to the chattel 6. the inconvenience and expense caused to the other **See illustrations on page 43 for guidance** (Class Notes: Core idea: defendant used property in a way that was inconsistent with the owner’s rights. Conversion = intentional exercise of control over another’s chattel that seriously interferes with the other’s right to control)

§226 Conversion by Destruction or Alteration -If someone intentionally destroys a chattel or materially alters its physical condition to chance its character or identity is subject to liability for conversion

11 -In a conversion, plaintiff seeks damages and not the return of property. If he wants property returned, he brings suit for replevin. They are different remedies for the same conduct.

1. Russell-Vaughn Ford v Rouse (last laugh) -salesman hides car keys -court rules for Rouse deeming it a conversion. -enough to show that the actor exercised dominion (power) over the property in defiance or exclusion of the owner. The refusal w/o legal excuse to return the property constitutes a conversion.

Class Notes: Trespass: Distinction btwn real property and personal property. Personal Property/Chattel can be carried away Three ways of trespass to chattel— 1) just take it 2) lent it and person refuses to give it back 3) item lost but person who finds refused to return it

-Writ system: Have to find which writ fits your case, if no writ, no case. (No writ, no right, no remedy). Different trespass had different writs. -Trespass to chattel: Like conversion but no so serious. When another’s property is meddled with. -Trespass to land v. trespass to chattel: Trespass to land gives rise to liability with nominal damages regardless of harm. Trespass to chattel has to cause actual harm-physical, interferes with rights etc.

Conversion Remedies: -Remedy is damages, not actual return of property. -General Rule: Damages equal market value at the time of conversion. -But, when this doesn’t restore justice, can sue for damages under other means.

Moore v. Regents of Univ. of California (spleen removal and research of cells) -court refuses to expand conversion to cover bodily tissue -court hints that he may have a good claim for battery. (but would be a fraud in the inducement, not a fraud in fact and the doctors wouldn’t be liable—court just isn’t very clear) -court concerned with protecting researchers down the line who had no clue that materials were taken illegally. As long as the initial act was conversion, you can recover for conversion down the line to others who exert rights over property Dissent: Thought conversion would be fine in this case and wouldn’t hurt research. Person only gets the value of the actual property when it was converted, not value afterward or based on advancements from the converted property. Third party (second purchaser) who is innocent gets to reap benefits of improvements made to it (contrast w/ stolen and refurbished Model-T where plaintiff gets present full value)

-Kremen v Cohen (sex.com) pg 53 9th Circuit Court of Appeals 2003 *Kreman has an intangible property right to the domain name. *Kozinski is a famous judge -Has three prong test for determining if something has a property interest 1. has precise definition 2. capable of exclusive control 3. putative owner must have established a legitimate claim to exclusivity 12 * Tangible property rights vs intangible property rights: -difference is in the level of control of the property—physical control vs intangible possession Examples: Website—intangible; Stock certificate—stock is intangible but has physical manifestation in the certificate itself, same as a bank account -Why do we care abt distinction? Some argued that if it is intangible, it can’t be converted— only for tangible property (what district court argues) *Another issue—Cohen has fled country, so must look elsewhere to recovery. Holds Network Solutions liable—they were the steward of site and illegally gave away property—even though it wasn’t malicious or with knowledge of the wrong. Network Solutions is still liable. Network Solutions didn’t use appropriate methods of following through—no calls or emails. Negligent in their stewardship and did the actual giving away. * Kozinski challenges the district’s court stance on courts and legislature—their duty is to apply common law, if legislature wants to, they can write legislation to overturn or change common law

D. False Imprisonment -Tort of false imprisonment protects the plaintiff’s interest in freedom of movement. It is committed when one party confines another w/o authorization. Act must be voluntary on the part of the other. Must not be reasonable means of escape: (i.e. open window on 1st flr vs. open window on 8th flr)

-False Imprisonment- Restatement (2nd) of Torts 1) Actor liable to another for false imprisonment if: a. he acts intending to confine the other or a 3rd person w/in boundaries fixed by the actor b. act directly or indirectly results in such a confinement of the other and c. the other is conscious of the confinement or is harmed by it 2) An act which isn’t done w/ the intention stated in 1a doesn’t make the actor liable to the other for a merely transitory or otherwise harmless confinement, although the act involves an unreasonable risk of imposing it and therefore would be negligent or reckless if the risk threatens bodily harm.

-What Constitutes Confinement 1) To be liable, the other’s confinement within boundaries set by the actor must be complete 2) Confinement is complete even if there is a reasonable means of escape unless the other knows of it 3) Actor doesn’t become liable by intentionally preventing another from going in a particular direction in which he has a right or privilege to go **see examples pg 56 -Confinement by Physical Barriers: The confinement may be by actual or apparent physical barriers -Example: A takes away the crutches of B who, being a cripple, is unable to walk w/o them. A has confined B. -A removes a ladder which is the only available way B can get out of a well. A has confined B.

1) Peterson v Sorlien (deprogramming) Minnesota SC 1980 Facts: 21 yr old college joins a cult like group. Her parents drive her unawares to a deprogramming house where she is held for 16 days. The first 3, she doesn’t consent to stay but later does. She eventually escapes and sues parents for false imprisonment among other things. PP: Trial jury ruled in favor of defendants. Appealed to Minn. Supreme Court.

13 Issue: If plaintiff voluntarily participated in first 3 days of confinement, is it false imprisonment for parents to deprogram child? Holding: For defendants. Affirmed Reasoning: -B/C of cult, court argues that plaintiff was incapable of informed consent until after first 3 days of deprogramming had restored her ability -argues that parents have right to intervene when they suspect child has joined cult—had their capacity for free choice/consent impaired—they have right to extricate child and limit their mobility esp. when child at some point consents. (Question: But what about political parties or activist groups?) -Society has compelling interest favoring intervention Dissent: -Plaintiff not a child, but an adult and an educated one. -majority has no guidelines for what constituted “impaired judgmental capacity” -issue of being in a cult doesn’t allow for imprisonment—what defines a cult, doesn’t take into account if cult is harmful-cult just another term for “unorthodox belief system” -young adults have right to join cults—that is what they do—adopt unorthodox belief systems

2) Eilers v Coy (iron hand) District of Minnesota Fed Court of Appeals 1984 Facts: Disciples of Jesus Christ cult; kidnapped and handcuffed to bed at deprogramming center. Π cooperated for a time to facilitate escape. Holding: For the π Reasoning: Apparent consent doesn’t bar defense to false imprisonment (sort of counter of how we think of consent—opposite rule of law in that consent negates liability; difference perhaps in that apparent consent given under duress)

3) Bright v Ailshie (Bounty Hunters) pg 59 Go back and type notes from margin 4) Citizen’s Arrest 5)Shoplifters: Detention for suspicion: for “reasonable manner and for a reasonable time” 6) Bagget v National Bank & Trust (stek up artist)—man goes to bank and hands deposit slip. Unbeknownst to him it has a note written on back that it is a “stek up”. He is arrested and detained. 7) Melton v LaCalmito

Restatement Second of Torts (1965) §45A. Instigating or Participating in False Imprisonment -One who instigates or participates in the unlawful confinement of another is subject to liability to the other for false imprisonment. 8) Malicious Prosecution

E. Assault ~Tort of assault is typical companion to battery

~Restatement (2nd) of Torts: §21 Assault 1) An actor is subject to liability to another for assault if: a. He acts intending to cause a harmful or offensive contact with the person another or a third party, or an imminent apprehension of such contact 14 b. The other is thereby put in such imminent apprehension 2) An action which isn’t done w/ the intention stated in part 1a. doesn’t make the actor liable for an apprehension caused thereby even if the act involved an unreasonable risk of causing it and, therefore, would be negligent or reckless if the risk threatened bodily harm.

§22. Attempt Unknown to Other: If the other isn’t aware at the time of act that he is in danger, the actor isn’t liable

§24 What Constitutes Apprehension In order that the other may be put in the apprehension necessary to make the actor liable for an assault, the other must believe that the act may result in imminent contact unless prevented from so resulting by the other's self-defensive action or by his flight or by the intervention of some outside force. Fright isn’t necessary—just belief that contact would occur unless there is a flight or some intervention.

§28 Apprehension of Unintended Bodily Contact If the actor just intends to put the other in apprehension of bodily contact, he is subject to liability for assault to the other if the other, although realizing the actor doesn’t intend to hit him, is put in apprehension of the contact. -Example: An expert knife thrower trying to scare someone who knows they don’t intend to hit them, but is still freaked out by it. The knife thrower is liable for assault.

§32 Character of Intent Necessary 1) To be liable, actor must intend to make harmful contact or put other in fear of such contact in order to be liable 2) If the act is done intending to affect a third person as in section 1 above, but puts another in fear of harmful or offensive contact, the actor is liable just as if he intended to affect the other party. (A wants to shoot B but also cares C. A is liable to C.—think of eraser case if the other party wasn’t hit w/ eraser, but was afraid of being hit—thought she would be)

1. Brower v Ackerly (sinister phone calls) Washington Court of Appeals 1997 Facts: Brower, π, received frightening and threatening phone calls from Ackerly with threats of harm. Brower sued for assault among other things. PP : Trial court gave summery judgment to Ackerly, the Δ. Rule: To constitute assault the threat must be of imminent harm. The immediate physical threat is important, not the manner of the threat. Restatement ex: A threatens to shoot B and leaves room to get gun. A is not liable to B for assault. Holding: Affirmed for the Δ

2. Bennight v Western Auto Supply (bat infested warehouse) Texas Court of Appeals 1984 Facts: Δ required π’s wife (hereafter just π) to work in a warehouse known to be bat infested against her will. The π was attacked, frightened, bitten and had adverse reaction to rabies treatment causing serious physical harm. Sued for assault. Proced Posture: Jury finds for π but doesn’t allow recovery saying it was accidental. Issue of 3 special verdict questions.

15 Rule: “The unlawful and intentional invasion of one legally protected interest of another will supply the intent necessary to hold the actor liable for the intended consequences of his act when some other legally protected interest of the victim is harmed in consequence of the act.” Reasoning: Was against law to keep unsafe workplace (invasion of π’s legally protected interest). Manager knew warehouse was unsafe and intentionally forced her to work there and that alone provides validation of intention to make him liable for assault. Was established by jury’s answers to three special verdict questions (My Exmaple: A seeks to illegally detain B but doesn’t mean to harm B. B has apprehension of being harmed and while detained by A , B suffers harm as a result. A is liable to B for assault) Holding: Reversed, π can recover. Class Notes: Similar to White v Idaho where teacher didn’t intend harm but intended the act that caused the harm—invaded her legally protected interest to not be touched. Would the same reasoning in Bennight apply to case of Bagget (stek up artist)? Way around it is that the writing on the back of the slip caused the apprehension of harm. Baggett didn’t write the note or intend to—the act is the writing of the note that fulfills intent. So, Baggett isn’t liable for assault.

3. Langford v Shu (mongoose prank gone array) NC Supreme Court 1962 -Mom participates in little sons’ prank on neighbor. Neighbor doesn’t know it is a joke and is afraid and injures self in flight. -Trial court had ruled for Δ as a matter of law, NC Supreme Court reversed -Court said mother knew and was party to prank and realized Langford’s fear and intended to cause fear.

4. Tuberville v. Savage (restrained swordsman) England 1669 -π threatens Δ saying if court wasn’t in session he’d stab him or swordfight him. But π didn’t remove sword or act. Rule: Need both intent and act to be liable for assault.

5. Newell v. Whitcher (blind woman receives unwanted sexual advances) Vermont 1880 -π a guest at Δ’s house overnight. The Δ enters her room and makes repeated and persistent sexual advances. Π is afraid and says no; out of fear, she dresses and stays up all night. Δ didn’t force any sex or touching, but had laid on bed at one point and leaned over her while he asked. -Trial court ruled for π and Δ appealed. What would be the result? Supreme Court of VT held for the π, saying act was trespass and an assault. Court said: “The question is whether the defendant's conduct injured the plaintiff; not whether it would a person of ordinary courage.” The act, adultery, was also criminal at that time and scandalous, court’s opinion also very morally tinged

F. Outrage—IIED

Outrage is the tort of intentional infliction of emotional distress (IIED) §46. Outrageous Conduct Causing Severe Emotional Distress (1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm. (2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress: 16 (a) to a member of such person's immediate family who is present at the time, whether or not such distress results in bodily harm, or (b) to any other person who is present at the time, if such distress results in bodily harm.

Comment d. Extreme and Outrageous Conduct To summarize—basically courts only reserve for acts where conduct is so extreme that it “go[es] beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community” So extreme to make an average person “exclaim, ‘Outrageous!’” Illustrations go beyond things like cursing someone out but where person really makes an effort to go above and beyond rules of propriety to cause distress.

--Outrageous conduct differs from other torts in that it gives no clear definition of the prohibited conduct. Term “outrageous” isn’t value free or exact. ---Is a very new tort. Prior to that, it was really poo-pooed by the court. ---How does this relate to other torts? In a pre-outrage world, would we expect a huge flood of litigation?

4 Elements of Outrage: 1) Intent 2) Conduct must be extreme and outrageous 3) Must cause emotional distress 4) Knowledge of victim’s susceptibility to injury from IIED

1. Roberts v Saylor (doc blows off steam) Kansas Supreme Court 1981 Facts: π and Δ had prior litigational history over malpractice suit. Δ had expressed his distaste for π earlier. When she went in for more surgery, Δ approached π and told her he didn’t like her. Π sued for assault Proced Posture: Trial court gave summary judgment to Δ Holding: Affirmed Reasoning: Outrage not for petty insults, threats or indignities, only for blatantly outrageous and utterly intolerable and indecent acts. Not for just hurt feelings. People can blow off steam. Notes: Have 2 issues to decide btwn: outrageousness of conduct itself and the impact of the conduct on the person.

2. Greer v Medders (very bad bedside manner) GA Court of Appeals 1985 Facts: The π is in hospital and recovering under care of sub doctor, Δ. Doc doesn’t visit for days, and π calls his office to complain. Δ comes in hospital room and chews out π and lashes at π’s wife causing her to cry and him to have uncontrollable shakes leading to psychiatric treatment Proced Posture: Trial court rules for Δ. Holding: Reversed-Δ liable for outrage; court erred in granting summary judgment Reasoning: π was in hospital bed recovering from surgery—Δ’s actions were sufficiently abusive to support recovery for outrage. Special doctor-patient relationship (where patient is subject to vulnerability) that was violated (no such relationship currently existed in the Roberts v Saylor case) Notes: Liability can come from knowledge that act will have harmful impact on the other (knowledge of their psychological state)

3. Muratore v M/S Scotia Prince (Gorilla cruise taunts) 1st Circuit Court of Appeals 1988

17 Facts: π on a cruise where they take a picture of her against her will of her backside and post picture w/ superimposed gorilla head for all to see. They harass her throughout the cruise, even using a gorilla suit and making lewd comments causing her to stay in her cabin in avoidance. PP: Trial court rules for π and grants $5,000 Holding: Affirmed Rules: Broke down restatement into 4 elements of Outrage: a. Δ must have acted intentionally or recklessly or must have been very certain that actions would cause severe emotional distress (maybe did not intend IIED, but intended the act and outcome). b. The extreme or outrageous nature of the conduct must arise from actor’s knowledge that the other is particularly susceptible to emotional distress c. Must be a causal connection btwn Δ’s actions and the π’s emotional distress d. Emotional distress must be so severe that no reasonable person could be expected to endure it. Actual injury or physical harm not required. In some cases, severe distress can be inferred from the extreme and outrageous nature of the Δ’s conduct.

4. Pemberton v Bethlehem Steel Corp (employer tells union man’s wife he’s having an affair) Maryland Court of Appeals 1986 Facts: π claimed that Δ was unhappy with work, and hired P.I. to place him under surveillance who uncovered his affair and secretly sent pics to his wife causing their divorce. Also says that Δ sent pics of an old mug shot around to fellow employees. PP: Trial court dismissed (summary judgment) to the Δ. Holding: Affirmed Reasoning: Court used same tests as in Muratore (Gorilla suit) but analyzed them differently. Said that for test a, you must consider person at whom the acts were directed at and that π was thick skinned. Also didn’t consider spreading of truthful information as outrageous. Also disagreed with Muratore opinion in saying that emotional distress has to be shown and that the emotional response and not the behavior has to be so acute that “no reasonable person could be expected to endure it”. Also said person must be unable to function or to attend to necessary matters. Pemberton court places more onus on the plaintiff’s response and nature rather than on the act and intention of the actor.

5. Figuerido-Torres v. Nickel (shrink has affair with wife of couple counseling--L) Maryland Court of Appeals 1991 Facts: π was seeing marriage counselor, Δ, with his wife. Δ had affair w/ π’s wife and told him he should seek a separation and otherwise degraded and abused the π. Π sued for professional negligence and IIED. Procd. Posture: Trial court dismissed Holding: Reversed Rules: 1) The extreme and outrageous nature of conduct can arise out of the Δ’s abuse of his poison or relation with person that gives him actual or apparent authority over him. 2) In cases where Δ is in a peculiar position to harass the π (ie, your shrink who knows you have issues) and cause emotional distress, the court has to carefully scrutinize the conduct. Reasoning: Similar behavior from a friend or stranger not outrageous, but is when it is done by your personal mental health professional who knows you have emotional issues

6. Criminal Conversation a. Things like adultery, seduction and alienation of affections used to be torts in themselves called amatory torts b. Most of these torts have been struck down by state laws called “heart balm: statutes 18 c. It is the nature of the loss in the Figuerido-Torres case that distinguishes it from the amatory torts cases

7. Hustler Magazine v. Falwell US Supreme Court 1988 Facts: Hustler parody about Falwell deflowered by mom in a barn. Falwell sued for libel and IIED. PP: Trial court found for Hustler in libel suit but for Falwell in IIED suit. Holding: SCT reversed, saying the verdict was unconstitutional Rule: False statement had to be proven to be made with actual malice to be IIED when made in publications. Otherwise, public figures cannot recover for IIED

8. Van Duyn v. Smith (anti-abortion protests v private person) Illinois Court of Appeals 1988 Facts: Δ protested against π who was the ExDir of an abortion clinic with posters, signs, picketing and parodies. Δ also followed π in his car, harassed at air port and impeded her egress and ingress for 2 yr period. Π sued for IIED and defamation. PP: Trial court dismissed. Holding: Reversed in part reinstating IIED claims. Reasoning: Hustler Court was clear that the conditions on IIED set forth in the opinion only applied to public officials and π isn’t a public official. Also, wasn’t the picketing and content or distribution that was outrageous, but following her and harassing her at airport and such over the 2 year period was outrageous,

9. Walko v Kean College (college administrator parodied) New Jersey Supreme Court 1988 Facts: College newspaper parodies π in fake ads. Π dues for IIED PP: Trial court dismissed Holding: Affirmed Reasoning: π is a limited-purpose public figure at Kean College and ad concerned her and a service or issue that she oversaw. Rule: Limited-purpose public figure is related to a particular issue and so the person is only a public figure when the publication concerns that issue. Rule for such person same as Hustler case.

10. Murray v Schlosser (dog of the week) Connecticut Superior Court 1990 Facts: Δ had a radio show where they berated pics of brides from the newspaper. They picked π as the “dog of the week” and made fun of her. Π sued for IIED among other things. Holding: Motion to strike denied. Δ liable for IIED—knew that their actions would cause IIED that could lead to illness, negative affects etc. Notes: Additional facts—The person was an employee at a rival radio station and they broadcast her phone number.

11. Statutory Intersections: Sometimes IIED intersects with other statutes concerning sexual harassment and discrimination

Class Notes on Outrage in General: --Illustration/ Hypothetical of buried treasure: Crazy guy always digs for treasure in yard. You plant a fake treasure to embarrass him. Not considered outrage.

19 --Rules vs Standards in Outrage: Rule regarding vulnerability of one party to another is more of a standard—requires one to go in-depth into the circumstances to determine if vulnerability does in fact exist. Rule regarding an economic contractual relationship is more of a rule—simply have to determine if there is actually a contractual relationship btwn the parties. --Some Ideas on Outrage: o Some feel type of Behavior IIED attempts to outlaw shouldn’t be prohibited (Sticks and Stones) o However, this is a narrow view of the law o IIED behavior should be outlawed, but this is not the best way to do it o Evidentiary and causation too difficult to determine; doesn’t really prevent/dissuade fraud o Will flood the courts—however, IIED really hard to prove to the courts o But, IIED will affect people’s underlying behavior—Chilling Effect o Chilling Effect—by prohibiting what we really want to outlaw, we discourage other behavior we do not intend to outlaw—i.e. fuzzy outlines of the law o But should we be worried abt making really mean behavior unlawful by default?

II. Chapter2: Intentional Torts—Privileges

A. Defense of Person and Property

Katko v Briney (spring gun trap for robber) Supreme Court of Iowa 1971 Facts: After several break ins, Δ set up a spring gun trap on premises to protect property from petty thieves. Δ moved gun from aiming at the stomach to the legs. Π, petty thief, broke into property and lost most of one lef due to the shot gun trap. Δ sued π for battery. PP: Trial court ruled for π and awarded $20,000 actual and $10,000 punative damages. Rule(s): The law has always placed a  value on human safety than upon mere property rights. There is no privilege to use any force calculated to cause death or serious bodily injury to repel the threat to land or chattels, unless there is also such a threat to the Δ’s personal safety to justify self-defense. Property owner must be present. See Restatement of Torts §85 pg 180 -“The possessor of land may not arrange his premises intentionally so as to cause death or serious bodily harm to a trespasser. The possessor may of course take some steps to repel a trespass. If he is present he may use force to do so, but only that amount which is reasonably necessary to effect the repulse.”—pg 87 -The only time when such conduct (spring gun) is justifiable would be when the intruder was committing a felony of violence or a felony punishable by death, or the trespasser was endangering human life by his act.—pg 86 Holding: Affirmed for π Dissent: Issue shouldn’t have been if a dangerous trap was set but if the trap was set with the intention of causing death or serious harm. Merely setting such a trap shouldn’t be sufficient for establishing liability. Notes: - Calibrated measures: Common law gives property owners privilege to use only the minimum force necessary to repel trespassers of thieves—ie, words or gentle physical encouragement Class Notes: -Subjective test (what person actually felt) vs Objective test (what a reasonable person would feel) --Must have both a subjective and objective fear of harm to not be liable (if he had been present) -Also issue of proportionality—deadly v non-deadly force; degree of response to threat -Also issue or reasonable alternatives—i.e. call police, get guard dogs or alarm system etc.—do you have other options

20 - No Retreat Obligation: If one is in their dwelling, they have no obligation to retreat from a threat—can use reasonable force to protect themselves

3. Crabtree v Dawson (mistaken identity attack) Kentucky Court of Appeals 1904 Facts: Δ struck π in the face w/ a musket causing him to fall down stairs and receive serious injuries under the mistaken assumption that the π was someone else whom he feared meant to cause the Δ harm. PP: Trial court found for Δ (jury verdict). Π appealed. Holding: Reversed for π, but appeals court said that if at the time of the injury Δ believe the π to be Noble (the other guy) and exercised reasonable judgment and used reasonable force, then he is excused on the ground of self-defense and apparent necessity (a reasonable mistake). Δ would have also had to use care to ascertain identity of person as the one whom wanted to cause him harm.

4. Wright v Haffke (thief shot in back) Nebraska Supreme Court 1972 Facts: π and another man entered store owned by Δ. Π pushed defendant and he and/or associate grabbed $$ from the register. When they turned to flee, Δ shot π in the back. Π sues. PP: Trial court found for Δ. Issue(s): Rule(s): For minor thefts, firearm is not justified but is for more serious felonies like robbery to prevent the felony or to make an arrest. Holding: Affirmed

5. Woodbridge v Marks (chained dog bites in the night) New York Court of Appeals 1897 Facts: Δ had 2 vicious guard dogs chained in yard that couldn’t reach house or walkways and were just to protect chicken and ice houses. Π walked on property at night and was attacked by a dog and injured. PP: Trail court found for π Holding(s): Reversed—no liability Reasoning: Have to consider manner in which dog was confined and circumstances around injury in determining liability; dogs give warning and act as a warning system unlike a spring gun which is a silent killer Notes: Court didn’t say that there was no liability for watch dogs, just that must consider on a case by case basis

6. Hull v Scruggs (egg sucking dog) Mississippi Supreme Court 1941 Facts: Dog of π entered property of Δ several times and ate eggs of Δ’ s poultry. Δ shot and killed dog and π sued for recovery PP: Trial court found for π Holding(s): Reversed Reasoning: Δ had right to his property. Ruled no liability b/c Scruggs had tried other methods of fixing the situation (catching dog, driving it away, going to dog owner). He was under legal obligation to try other methods first. Didn’t have to shoot dog while in the act—dog was repeat offender, knew what would happen. Class Notes: -What if case involved cows who ate crops? Law says that instead of poisoning the cow or shooting them, you could seize them to compel owner to take action and/or pay for damaged crops

7. Kershaw v McKown (goats v dogs—relative worth) 21 Supreme Court of Alabama 1916 Facts: Δ killed dog of π that had been killing his goats PP: Trial court for the Δ Issue(s): Reasoning/ Rule: There must be an apparent necessity for the defense honestly believed to be real, and then the acts of defense must in themselves be reasonable. Consequences of proposed act must be weighed against consequences of nonaction on part of the defending party. Take into account value of the animal to be protected vs the one to be killed/harmed. Holding(s): Affirmed Notes: -Hogs v Chickens: relative value: To permit person to kill another’s hog in order to protect his chicken would be like laying down doctrine that would allow destruction of $50 hog for a 50 cent chicken—led to single owner principle below. - Single owner principle: Idea that in deciding if a defendant has acted wrongfully, one asks how the situation would have been handled by a single owner who was responsible for both the source of the threat and for the property being threatened.

12. Rules of Engagement—Restatement 2nd of Torts § 63, 65, 73, 76, 261

§76 Defense of Third Person: The actor is privileged to defend a third person from a harmful or offensive contact or other invasion of his interests of personality under the same conditions and by the same means as those under and by which he is privileged to defend himself if the actor correctly or reasonably believes that: (a) the circumstances are such as to give the third person a privilege of self-defense, and (b) his intervention is necessary for the protection of the 3rd person. Illustrated 4. A attacks B, knocks him down, draws a knife, and is about to stab B. C, a bystander who is a stranger to both A and B intervenes to protect B, and strikes A on the head with a pitchfork, inflicting serious injury. C is not liable to A. (Class: If C in trying to protect B hits D, another bystander, C is not liable to D b/c initial act is privileged) (Think abt Fagan (chivalry case)—Fagan would be protected from liability to others in brawl since he was defending the waitress—if she were abt to be harmed)

§261 Privilege of self-defense of defense of the 3rd person

General Class Notes Win-win Liability rule: everybody wins, look out for this. Perhaps the “seize and hold” rule is an example. Person whose animal offends gets animal back for a $ rather than have it killed. Person whose land was trespassed and harmed gets adequate compensation.

B. Private Necessity

Restatement of Torts § 197. Private Necessity (Defense of Private Necessity)

(1) One is privileged to enter or remain on land in the possession of another if it is or reasonably appears to be necessary to prevent serious harm to (a) the actor, or his land or chattels, or (b) the other or a third person, or the land or chattels of either, unless the actor knows or has reason to know that the one for whose benefit he enters is unwilling that he shall take such action.

22 (2) Where the entry is for the benefit of the actor or a third person, he is subject to liability for any harm done in the exercise of the privilege stated in Subsection (1) to any legally protected interest of the possessor in the land or connected with it, except where the threat of harm to avert which the entry is made is caused by the tortious conduct or contributory negligence of the possessor. General Notes: --want to look at issues with the single owner perspective --Dominant rule is that privilege by private necessity is incomplete—could still be liable for damages and cost of use although you have right of use/ occupation --Private necessity differs from self defense in that the risk of harm comes from an Act of God rather than another actor

1. Ploof v Putnam (boat tied to dock in storm to save family) Supreme Court of Vermont 1908 Key Terms: Necessity: A privilege that may relieve a person from liability for trespass or conversion if that person, having no alternative, harms another's property in an effort to protect life or health. Facts: Δ owned a dock manned by a servant. Π owned a boat and was sailing on lake with family when storm rose and threatened to destroy boat and harm family and possessions. Π moored boat to Δ’s dock for protection. Δ’s servant unmoored the boat during the storm w/o notice to or permission of π. Π’s boat was then thrown ashore by the storm and π and his family were thrown in lake and suffered injuries. Boat and belongings destroyed. Π sues for trespass and negligence (there was a duty to let boat remain moored) PP: Δ demurred, demurrers overruled. Δ appealed Rule(s): “An entry upon land to save goods which are in danger of being lost or destroyed by water or fire is not a trespass.” “The doctrine of necessity applies with special force to the preservation of human life…One may sacrifice the personal property of another to save his life of the lives of his fellows.” Holding: Affirmed and cause remanded to trial Reasoning: the averment of necessity is complete because it includes the necessity for the boat to be moored and to be moored to the dock. Facts establishing the truth of averment should be put forth in court. Class Notes:  Immediacy of the act is important; i.e. if π had sailed knowing about the storm and the severity but just assumed the risk, he could be liable  Complete privilege vs incomplete privilege  Complete Privilege: not responsible for any damages or usage fees; ex-ante compensation occurs in that either party has same right of complete privilege  Incomplete privilege: get to use it, but you have to pay, either for rent or for the use of it. The dominant Rule  Ploof is a case of complete privilege (?)—boat was displaced before any damage done, not addressed in the case  With privilege you have an implied right to be there b/c of necessity and owner can’t remove you or use force. With trespass, one can use reasonable force.  Bi-lateral monopoly: A single producer and a single consumer; sometimes troubling, sometimes not. Ok when both are free to go. Not ok if under duress: Say Δ said π could moor the boat if he transferred over ownership. Wouldn’t be legal b/c bargain is so unequal that π has no choice—issue of comply or die.

23  Veil of Ignorance: concept in law and philosophy; when deciding on rules to structure govt or lives, must pretend to be behind the veil of ignorance (not known what our place will be in real world—ie the boat owner or the dock owner). See Elements notes.  Say the Δ and the π are both in boats during the storm and arrive at dock at same time w/ equal necessity. Who can legally have upper hand? The owner of the dock has the right of way.  Say π throws a line to the Δ’s servant and needs help to move in. If he doesn’t help, is he liable? By law, no, he doesn’t have to take any affirmative action—no duty to rescue.

Rossi v DelDuca (girl runs into Δ’s field to escape a dog, attacked by Δ’s dog in field) Facts: π was walking home when confronted and chased by a dog. To escape dog, π escaped into a field owned by the Δ where she was attacked and bitten on the neck by one of his Great Danes. π sued for damages under state law that said person would be liable for such an attack unless the person seeking damages was committing trespass or another tort. PP: Δ moved for dismissal b/c π admitted to trespass. Court overruled motion. Rules: One is privileged to enter land in possession of another when it is or reasonably appears to be necessary to prevent serious harm to the actor or his/her property. The privilege relieves actor from liability for technical trespass and also destroys the possessor’s immunity from liability in resisting the intrusion. Class Notes: A case of complete privilege

Vincent v Lake Erie Transportation Co. (boat moored to dock to protect goods, dock damaged) Minnesota Supreme Court 1910 Facts: Δ’s boat was moored to dock owned by π for the purposes of unloading cargo. A violent storm of hurricane strength arose, and to protect the property, the boat remained moored to π ’s dock. Δ’s boat was thrown against dock during storm causing damage to dock. Π sues for recovery of damages. PP: Trial court ruled for π in amt of $500. Δ appealed Issue(s): Is it complete or incomplete necessity? Holding: Affirmed (incomplete necessity)—Δ had privilege, but was incomplete—must pay for use Reasoning: Δ prudently and advisedly availed himself of the π’s dock in order to preserve his property, the π is entitled to injuries done to dock b/c of the Act of God. Π exercised reasonable care in keeping boat secure throughout the storm. Dissent: Thinks it is a complete necessity Class Notes:  Wrong-doer pays rule is switched for a “causer pays” rule by the majority  Dissent cites wrong-doer pays rule—risks really expensive property to save cheap property—act in a way that a unified owner would not. What if boat was worth $600 and the dock was worth $500 —higher decision costs  Causer pays rule:--only decide amt of damages—low decision costs

Texas Midland Ry. Co. Geraldon (train passengers left in the cold) Texas 1910 Facts: Family at train station missed train and decided to spend night at station. Attendant said they had to go, but it was raining heavily and wife susceptible to illness so π asked to stay. Δ called cops and kicked them out. Wife got ill during walk to hotel. PP: Jury found for π. Δ appealed Holding: Affirmed for π Reasoning: Attendant knew wife susceptible to illness from rain due to her pregnancy. Private necessity gave them privilege to stay at train station.

24 London Borough of Southwark v Williams (Squatter’s rights) Facts: Proced Posture: Rule(s): Holding: Rasononig: Problem wide spread and chronic as well as social. Better left to the legislature—issue of scale and scope

C. Public Necessity

Restatement of Torts § 196. Public Necessity

One is privileged to enter land in the possession of another if it is, or if the actor reasonably believes it to be, necessary for the purpose of averting an imminent public disaster.

Note: Difference btwn private and public necessity: use of property for a public benefit; actor doesn’t have to be a public official. Complete privilege (?)

Mouse’s Case (casket overboard) England 1609 Facts: Mouse (Δ) throws casket of goods overboard to save ship full of people from sinking. Holding: Mouse not liable b/c done for public good Notes: -What if there were no passengers but lots of their property and Mouse? General Average Contribution: If you are a unified (single) owner, you toss the cheapest one that does the job. So, with a bunch of people’s property, everyone pays for the property

Surocco v Geary (San Francisco Fire) California 1853 Facts: Δ, Mayor of SF destroys π’s house to prevent spread of fire. Holding: Not liable Reasoning: Home would have been destroyed anyway. Right to tear down homes to halt spread of fire is a universal right of governments and a necessity

Struve v Droge New York Supreme Court 1881 -Person liable for damages if home destroyed but there was no fire—if public necessity doesn’t exist and there is no need for destruction, the actor is responsible for damages. Idea of reasonable mistake doesn’t transfer over to Public Necessity.

III. Chapter 3: The Negligence Standard A. The Reasonable Person Restatement 2nd of Torts (1965) §283. Conduct of a Reasonable Man; The Standard Unless the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like circumstances.

25 --One issue that arises w/ this definition is determining what standard should be used to determine what is meant by a “reasonable person.” Differences like age, intelligence, experience make this hard

Notes: -- 4 Elements of Negligence (look up ) 1. Duty 2. Breach 3. Causation 4. Damages --Fundamental inquiry is if the person did something unreasonable or failed to do a reasonable thing to cause the injry.

1. Mental Ability and Mental States

Williams v Hays (exhausted brave captain wrecks ship) New York (1894, 1899) Facts: Δ was captain of ship owned by π. After going for 48 w/o food or sleep while weathering a storm, Δ took medicine to help treat malaria and later became delirious/ exhausted and made series of bad choices culminating in the destruction of π’s boat. Π sues to recover damages charging that they were due to Δ’s carelessness and misconduct. Proced Posture: Trial jury found for Δ (not liable due to insanity). Π appealed. Appeals court reversed and remanded. Trial judge gave directed verdict to π; Δ appealed and appeals court again reversed and remanded. Issue: Does insanity provide an adequate defense to π’s claim? Rule(s):  An insane person is just as responsible for his torts as a sane one except where intention is a necessary ingredient of the tort. (same as Polmatier v Russ case—crazy guy shoots father in-law)  Person must exercise such reasonable care and prudence as a careful and prudent man ordinarily would  Law intends what is agreeable to reason. Impossibility is an excuse in law. Holding: Reversed and Remanded—finally for Δ Reasoning/Analysis: Cites public policy issue discussed in Polmatier (law makes family take care of insane members & evidentiary issue with people falsely claiming insanity& basic fairness: family care issue not pertinent to case as much as evidentiary and fairness issue); issue of liability hinges on if his efforts to save ship during storm caused the insanity—on second appeal, Judge Haight backs off that stance—insanity doesn’t = no liability no matter how it cuts, but To hold that rule in this case would be absurd. Was impossible for Δ to operate as a reasonable and careful person ordinarily would under such conditions. Law shouldn’t hold liable for not doing the impossible. Notes: -Insanity case -Could owners have sued the crew for lack of reasonable due care in taking reigns from visibilly crazy captian -Court doesn’t address issue that the captain’s didn’t exercise due care in preventing his state of insanity?

Vaughn v. Menlove (dumb man puts chimney in a haystack) England 1837 Facts: Δ built large haystack near π’s property. Π told Δ was a firehazard and Δ replied that he’d chance it. Δ built a chimney in haystack and it caught fire destroying π’s cottages.

26 Proced Posture: Jury for π. Δ appealed saying he is not liable for being dumb (he should be held to standard that he is capable of) Rule(s): Care and prudence as exercised by an ordinary reasonable person is standard for determining negligence. Stupidity is not a defense to negligence. Holding: Affirmed for π Reasoning/Analysis: To go by individual best judgment would negate the rule. That standard is too vague and subjective. Notes: Does this conflict w/ Hays? Perhaps—Hays takes into consideration the individual’s special circumstances. But it doesn’t conflict in that the rule isn’t the captain’s intelligence or reasonableness as a standard, but an ordinary reasonable person in the same situation—the standard aligns w/ the rule.

Lynch v Rosenthal (mentally handicapped man hurt by machinery) Kansas Court of Appeals 1965 Key Terms: Contributory negligence—defense to tort of negligence—no damages if victim contributed in any way to the fault; this has been relaxed over the years to comparative negligence, damages just reduced and not eliminated. Facts: π was man w/ mental capacity of a 10yr old and IQ of 65. Δ took π into home to work on farm as family member. Π became injured while assisting on farm with the Δ using machinery. Π sued for negligence in Δ’s failure to warn him, Δ said that π contributed in getting too near. Proced Posture: Jury for π. Δ appealed. Rule(s): Holding: Affirmed for π, and π wasn’t contributorily negligent Reasoning/Analysis: Medical evidence proof of π’s disability and ability to understand warnings but not comprehend the reasons behind them. Notes: -Law doesn’t take into account diminished mental capacity for negligence but gives break in contributory negligence question. There is some difference in being the victim of an accident and being the causer.

Holmes’ Notion of Distinct Defects: pg 127 (re-read and glean juicy bits) -Blindness is a distinct defect -Insanity—more questionable as a distinct defect -Reasonable Person rule doesn’t take into account special mental capacities of the individuals -Stupidity not a distinct defect. -The law pays no attention to the deficiencies of individual persons—i.e. clumsiness, whatever. Deficient person is still held to the same standard is the average man. (128) -In distinct defect analysis, we care about two things: -If other people can readily recognize or detect the distinct defect and thus take appropriate precautions - -Should we have a higher standard for geniuses in cases of negligence? -Could be valid in case of learned licensed professionals—i.e. doctors—compared to other doctors rather than the general population -to have this would produce a double standard, an asymmetry in the law -Shouldn’t depart from idea that distinct defect has to be readily detectable in order to matter in variation from ordinary reasonable person standard for geniuses. -Often the case where court holds person with expert knowledge to a higher standard esp when capable of avoiding the injury more so than a normal person.

27 Fredericks v Castora (Man hit by 2 trucks, sues under negligence) –p132 a. Pl in car hit by 2 trucks—verdict finds no negligence b. Pl claims professional truck drivers should be held to a higher std. (132) c. App rejects concept of higher std.—too hard to apply variable standards

Reasoning: There is only one degree of care in the law; that of what can reasonably required or expected under all circumstances in a given situation. (Runs counter to idea that licensed professionals are held to a higher standard)

2. Physical Infirmities -Distinguished from post-ante cases in evidentiary matters—pretty easy to see if they are faking -Similar to mental defects in that may be hard to see some physical disabilities (blindness or deafness)

Kerr v Connecticut (deaf man hit by a trolley) -Deaf person doesn’t recover because he was contributorily negligent (no recovery) -Kerr knew of danger of trolley tracks and that he was deaf and did not use due caution—did not take reasonable care that an ordinary deaf person would

Davis v Feinstein (blind man falls through cellar door) -Davis not contributorily negligent -His due care is to compensate for or act in accordance w/ his disability in using his artificial aids to ferret out danger (as a reasonable blind person would) -He could not have known that there was an open man hole.

3. Age Purtle v Shelton (hunting accident between kids)--READ -Rule: When a youth is old enough to engage in adult activity there are strong policy reasons for holding him to an adult standard of care: If a minor is to be held to an adult standard of care he must be engaging in an activity that is (a) dangerous to others and (b) normally engaged in only by adults. Otherwise held to standard of a reasonable child of that same age.

Roberts v Ring (7 year old ran in street and hit by 77 year old driver) -both lack a certain capacity because of age -Court holds Ring, the 77 year old, accountable and to reasonable care standard. “Δ’s infirmities did not tend to relieve him from the charge of negligence. On the contrary they weighed against him.”— were very reason why she shouldn’t drive. -Since kid isn’t held contributorily negligent, should we hold the parents so?

Dellwo v. Pearson -Special rule for driving: A minor is held liable when they are engaged in a regularly adult activity (driving or operation of motor vehicles.)

Dunn v Teti (kid swinging stick) Rules: -Minors under the age of seven years are conclusively presumed incapable of negligence -Minors btwn 7 and 14 years are presumed incapable of negligence, but the presumption is a rebuttal one that weakens as the 14th year is approached, -Minors over the age of 14 years are presumptively capable of negligence, with the burden placed on the minor to prove incapacity.

28 Class Notes: -What about gender differences? I.e. reasonable woman and reasonable man? –Not really that cogent or helpful, even incases of differences in strength.

B. Risks and Precautions

United States v Carroll Towing Co (barge damaged and sinks when barge attendant gone) Rule(s): Hand Formula Holding: Conners Marine Company (barge owner) was contributorily negligent due to absence of barge attendant Reasoning: The Hand Formula B

Bolton v Stone (cricket accident) Facts: Women next to cricket club where balls go out onto property rarely. Woman hit with ball and sues for negligence. Holding: Cricket club not negligent. Probability of injury was too low to make taking precautions normally reasonable Reasoning: Notes:

Hand Formula of Negligence: From illustration on page 147 Bolton v Stone Case—Cost of Building Fence vs. Probability of Injury x Loss B P (%) L (P)(L) ΔB (marginal ΔPL (marginal cost of upgrade) benefit of up…) 0 ft fence $0 10 $50K $5000 - - 7 ft fence $2000 2 $50K $1000 $2000 $4000 10 ft fence $2500 1.8 $50K $900 $500 $100

General Notes on Liability and Hand Formula: Liability Rules: -No liability rule -Strict liability rule -Negligence (Hand) --Both strict liability rule and negligence rule induce people to take proper care --Where strict liability vs negligence may matter is in the level at which you engage in the activity (i.e. how many cricket games you schedule—activity rates)

Coase Theorem: So long as transaction costs are 0, the initial allocation of the property rights in the liability rule will not determine the outcome we observe. Parties will bargain to an outcome based on how much they value rights (to hit ball into yard; to avoid being hit) --Regardless of who we give the rights to, as long as the transaction costs are low, people will bargain to the same point.

Discontinuity issue: In the negligence world, if you overcompensate the precaution, the only repercussion is the cost of the overcompensation. Same is in the strict liability world. However, if you take a little less precaution then needed, in negligence world you pay for injury and the cost of the precaution. In the strict

29 liability, undercompensation also costs you, but not by that much more. So, of these two scenarios, in the negligence world it is better to over invest.

Distributional Issues: In one world, actor pays and in the other, the victim pays. In strict liability, if you benefit from the precaution, you pay. In negligence world, everyone pays to take reasonable care. In negligence world, once you have taken due care precautions, the other pays when the accident still happens despite your reasonable care—i.e. not negligent. (Ie. ball keeps coming over fence and damaging my house but other isn’t liable, I’ll build a fence to protect my interests)

Eckert v Long Island R. Co. (man saves child on tracks, gets killed by train) New York 1871 Facts: A train is traveling on an unguarded track w/o any warning bells or signals through a residential neighborhood. The π’s client saw a child on track and saved the child, but was killed by the train. Π sues the RR for negligence. PP: Trial court found for π. Δ appeals saying that π’s client was contributorily negligent Rule(s): A person engaged in regular affairs or in the mere protection of property who knowingly and voluntarily places himself in a position where he is liable to receive a serious injury, is negligent, which precludes him from recovering for any injury he received. However, when the exposure is for the purpose of saving a life, it isn’t wrongful, and therefore not negligent to do so unless such action is either rash or reckless. Holding: Affirmed for π Reasoning: Law has so high a regard for human life that it will not impute negligence to an effort to preserve it. It was his duty to exercise judgment as to if saving child was in his power and was compatible w/ a reasonable regard for his safety but he had no time to deliberate. Notes: Hand Formula and The Eckert Case: Elements of Reasonableness- a. The magnitude of the risk was the probability that he would be killed or badly hurt. Was high b. The principal object was his own life, which was very valuable c. The collateral object was the child’s life, which was also very valuable. d. The utility of the risk was the probability that he could save the child. That must have been fairly great, since he did succeed. If there was no chance of saving the child, the act would have been unreasonable and negligent. e. The necessity of the risk was the probability that the child would not have saved himself by getting off the track in time. --the great utility and necessity of the risk outweighed the magnitude of the risk, making the risk reasonable. If a kitten had been on the tracks, would have been negligent and unreasonable. --Posner puts Hand Formula in terms of a hypothetical contract btwn the railroad and the man—ie would it have been reasonable for them to contract with Eckert to save the child? --What if the Δ argued assumption of risk? Perhaps court would rule the same way—preservation of human life, no time to deliberate and thus to properly voluntarily consent to the risk

The Margharita (seaman loses leg, ship takes regular route instead of long way to get aide) 5th Circuit Court of Appeals 1905 Facts: Martinez, a seaman on a cargo ship, fell overboard and was attacked by a shark loosing his leg below the knee. There was no surgeon and nearest port was a three week detour. Ship didn’t stop at any port but finished the 7000 mile trip w/o stopping. Martinez has leg attended to w/o extra loss but endured 3 months of pain and suffering. Martinez sues ship owners for negligence in failing to seek aid. Proced Posture: Trial court awarded Martinez $1,500, mainly for the pain and suffering. Holding: Reversed.

30 Reasoning: Seafaring a dangerous job. Cost of delay was greater than burden of Martinez’s pain and further injury since his life was not in danger—cost of delay, burden on ship provisions and wages for crew while waiting for Martinez to be seen to. Notes: -Question: What if suit was for failure to have a ships surgeon? Would ruling have been different if the cost of hiring a ship surgeon for the length of the journey was under $1500? (apply hand formula B

Dissenting View of Hand Formula—Prof. Wright -Hand Formula “treats others solely as the means to one’s own ends”, a behavior which is morally repugnant and condemned by “underlying principles of justice as a failure to properly respect the equal dignity and freedom of others.

Davis v Consolidated Rail Corp (train inspector loses leg) 7th Circuit Court of Appeals, 1986 Overview: Train inspector has leg and foot severed when underneath a train inspecting. Sues for negligence. Inspector failed to put up blue flag indicating he was underneath train as he was required to do by regulation. Π claims that Δ should have 1) another employee had walkie-talkie 2) should have walked length of train and looked underneath 3) should have blew horn. PP: Jury awarded $2million. Was reduced from $3mill b/c they thought Davis was 1/3 contributorily negligent

Restatement 3rd of Torts: §3 Negligence A person acts negligently if the person does not exercise reasonable care under all the circumstances. Primary factors to consider in ascertaining whether the person's conduct lacks reasonable care are the foreseeable likelihood that the person's conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm. (sort of Hand formula in action)

Overview of Negligence v Strict Liability Class Notes: Three Areas of Discussion -Diff. btwn Negligence and Strict Liability Rules -Strict liability/ causer pays was basic rule up through 20th Century where it transitions to negligence - Economic Approach to Tort Law: -Seems to minimizes social cost of accidents; cost also being taking precautions to guard against accidents -could be a single rule or a case by case application -Accidents can sometime be prevented by 2 precautions -for the injurer to take precaution -for the potential victim to take precaution as well—bilateral actions (i.e. Cricket club case); focus on incentives for both the injurer and the victim

31 -Strict liability rule gives strong incentives for injurer to take precaution but undercut incentives to the potential victim to take precaution, b/c all cost are carried by the injurer. This would be ok if it was always cheaper for the injurer to take the precaution, but this is not always the case. -Strict liability impacts activity level of actors—if it is cheaper risk wise to act less, the actor will. (ie fewer cricket games) -Negligence rule, along with strict liability rule results in highest level of care being taken but difference comes in the bilateral case. Negligence gives both parties the incentives to prevent accident. They share cost or either party could bear the brunt of all the costs. Doesn’t give injurer incentive to look at activity levels to mitigate risk and cost, but does do this for the person injured. -Mixed Rule :Strict liability with negligence: injurer pays all costs unless the victim was contributorily negligent, where costs are shared or shifted. -Error and Decision Costs -Moral Issue: Which rule is fair and just? -intuition is to say that causer pays model is just. But, must divorce issue if one party should be compensated from who should pay -Coase Theorem: “When transaction costs are $0, an efficient use of resources results from private bargaining regardless of the legal assignment of property rights.” Judges which is best rule based on efficiency 2 Critical points: -In situations where this applies, what the law says may not matter much. -Transaction costs do matter. -Commodification, Torts and Hand Formula -Life-Life trades: Seems okay in self defense setting (except when retreat is readily available). -Eckert Case (man saves kid on the tracts)—issue of rashness, culpability of self sacrifice is high. -Posner argues that act wasn’t reckless if railroad owner would pay the victim to save the kid. But this suggest that if the railway owner wouldn’t pay, that the act was rash. Seems problematic -Rule: Can’t put at risk someone’s else’s property to save your cheaper property. Does this also apply to lives? And how so? -Question is are their property rights that are more valuable than a human life? Spring gun case, right to injure to protect property -Hand Formula ok for property, but very problematic for human life. But, does the problem of human life and the hand formula always fall through in real life? What about driving car where risk of taking a human life is high. If you were not negligent, should you have to pay when another is injured or killed? -In Pinto case, w/o the formulation of human life, Ford would probably have loss. -Overview of Reasonable Person: -We live in a negligence world. -When a person is negligent, the deviate from activity of normal reasonable person. Any exceptions?: -Distinct defects—mental defects not always taken into account -Skilled professionals held to higher standard -Physical defects are taken into account -Young age taken into account -Old age usually not taken into account -Reasonable person does not impose unreasonable risk. Carol Towing case. - Hand Formula critiques: -courts don’t act that way -not feasible to use as the rule -may be feasible tool for analysis but against normative view -Hand Formula Competitors:

32 -Prof. Wright: Unreasonable Risk approach. Focus on P and L but not on the cost of the untaken precaution. Party is negligent if they impose non-reciprocal risk.

C. Strict Liability Class Notes in General:

Rylands v Fletcher (escaped water causes explosion) p404 Court of Exchequer Eng. Rep., 1865 Exchequer of Chamber, 1866 House of Lords, 1868 Facts: Δ hired contractors to build reservoir. Π had a mine underneath. Contractors made a mistake they knew about and filled reservoir causing it to break through and flood the coal mines of the π below. Π sues for damages to property. Proced Posture: Arbiter found contractor negligent but not Δ. Lower court found Δ not negligent Issue(s): Rule(s): “The person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.” Holding: Judgment for π. Δ is not liable for negligence, but liable under strict liability rule Reasoning: (Harvest Notes) Class Notes: -Tort of trespass doesn’t apply—water on the land of π was accidental, lacks intent -This is a case where the π couldn’t even take any precaution to prevent accident. Unilateral liability. Like a case with a tiger next door—can’t really protect self or take precaution if it escapes even if you know the tiger is present. Water of large volume like a tiger is likely to cause mischief if it escapes. Two Opinions: -Blackburn for Exchequer Chamber takes into account the nature of the risk: i.e. strictly liable for cattle eating grass but not for the cattle biting someone as this is not in their nature-pg 406 1st full ¶ -Cairns for House of Lords takes into account natural or common use of lawn (nonreciprocal risk) -Varieties of Risk Discussed in Opinions: - Situations where victim can’t take precautions -situations with nonreciprocal risk (just one man with one watertower v. everyone having one) -activities that are dangerous even when conducted carefully, activities in places of poor location— think about actor changing the activity levels or the locale

Crowhurst v. The Burial Board of the Parish of Amersham (poisonous yew tree kills Mr. Ed) Exchequer Div., 1876 Facts: Δ plants yew tree near π’s property and roots of which grew under fence onto π’s property. Π ate roots of tree and died. Holding: strict liability Class Notes: -Strict liability seems appropriate because operation of due care wouldn’t be able to prevent accident. Negligence gives no incentive in this case, because even if he prunes it, accident occurs. So, w/ strict liability rule, Δ would think 2x about planting tree and location. No activity incentive with negligence.

D. Custom (Industry Standards) and the Problem of Medical Malpractice (Harvest notes and briefs from books)

TJ Hooper Hand-Compliance with custom doesn’t waive liability 33 Why doesn’t Hand use his Hand formula?—no good reason B (radio cost)< L(loss of barges)* P(likelihood of avoiding a storm)

Pl can use custom as sword (D deviated from it) (either conclusory or evidentiary) D can use custom as shield (D didn’t deviate from it) (either conclusory or evidentiary)

1. Rule: Courts should decide what is proper diligence, not necessarily the industry (which may as a whole have lagged in adopting precautions) 2. (And in this case one tug company did provide radios.)

Class Notes: -2nd Restatement of Torts: Customs should be taken into account, but is not decisive. -Custom acts as a sword for the plaintiff (failed to meet industry custom and I should get $) and as a shield for the Δ (I complied with the industry custom so I should be cleared) -3rd Restatement says that concurrence with custom is not clear evidence of no liability and not keeping with custom is not conclusive evidence of negligence. It means something, but not everything. -Custom emerges in repetitive situations; custom doesn’t apply to exceptional cases that deviate from norm. -How do we determine what the custom is? What is the universe of actors we are looking at? Can be difficult. Often, customs boil down to gibberish. So custom as a perfect shield can be problematic. --Court used to think of custom as a perfect shield—people held to custom of industry and not mitigating danger by taking due care. Such a rule was okay if the optimal level of care = the industry standard. But Hand was concerned that this was not always or even often the case and industry lags behind—perhaps in Hooper case, radios were just coming onto the scene and the Δ was behind the curve. -If industry standards are governed by market forces, are we so concerned abt a lag in the level of care? Wouldn’t market serve to keep it afloat?

Rodi Yachts Inc. v. National Marine Inc. (p161)--Posner Class Notes: -Posner thinks that Hand (custom and negligence law) is right, custom is not a shield to negligence, but in a contractual situation, that might not be the rule. But, Hooper is a contractual situation. Posner thinks the Hooper decision is wrong. -Railroad scenarios. How does custom play out—perhaps in extent that optimal level of due care is achieved. Scenario 1 is not a case where there is a contractual relationship—car gets hit crossing tracks when train doesn’t blow horn. Scenario 2 had passenger hit in head with luggage from overhead racks that are not enclosed. -Coase Theorem- When transaction costs are $0, an efficient use of resources results from private bargaining regardless of the legal assignment of property rights. Posner-When transaction costs are high, custom should have relatively little weight. (Scenario 1 with car on tracks) When transaction costs are low, custom should be given greater degree of weight. (Scenario 2 with baggage---market would eventually lead to higher degree of care in the industry custom)

Medical Malpractice Cases: -Doctors held to standards of the profession in general. -Issue of locality—should doctors keep up with their local (locality rule of Small v Howard) or with the entire industry nationwide. -Negligence has no affect on activity level. Court’s hard up to answer questions on particular procedures —lack expertise to judge. So courts look to industry wide practice. But what about other industries? Why are doctors different?

34 -Locality Rule—professionals held to custom/standard of due care of those within his particular locality; has generally been abandoned. Has been replaced in some jurisidictions by an amended rule, saying actions violated rule/custom not of the same locality but of a similar locality. -In medical field, custom is a perfect shield and a perfect defense (unlike other areas) Custom In General—Class Notes: -where custom and the hand formula converge, it is cheaper to use custom to determine negligence; both methods bring the identical result

E. Negligence Per Se: Criminal Statutes and Judge Made Rules Class Notes in General: -Negligence per se—allows judge to say some actions are negligence as a matter of law not the jury; Δ violated a statute or a judge made rule -Res Ipsa: opposite—allows some matter to reach the jury where they would otherwise not Negligence: for tort of negligence, you must show: duty, breach, causation and damages (actual harm)

Definitions of Negligence Per Se - 3 rd Restatement: Actor is negligent if w/o excuse the actor breaks a statute that was meant to outlaw the type of conduct actor did (or event that occurred) and the victim was w/in the class of persons the statute was meant to protect. -2nd Restatement—has four pronged approach—complex and almost useless

1. Violations of Criminal Statutes Martin v. Herzog (a buggy comes in the night) NY Supreme Court, 1920 Facts: Buggy driver drives w/o lights at night and is hit when he rounds a corner by a guy in a car who had lights but veered out of his lane during the turned. Buggy driver killed. There was a statute calling for use of lights when on the highway at night. PP: Jury ruled against π and held the Δ (buggy driver) blameless and Appellate court reversed Class Notes: -Would this be a case of negligence per se? Perhaps, statute was broken and statute meant to avoid this particular type of accident and occurrence and was meant to protect people on the road -Torts are an outcome system. You only pay if there is an injury or damage caused. Statutes and criminal liability—doesn’t matter if accident occurred, just that the statute was broken—attempt matters. Torts don’t give damages for near misses.

Tedla v Ellman Facts: Brother and sister walking on side of road with a light, the wrong side of the road according to the statute but the safer side since there was much less traffic. Car hit and killed the brother. PP: Trial court ruled that Ellman was solely negligent. Δ appealed saying Tedla was negligent as a matter of law. Rule: the statute establishes the general duty, but deviation is ok when adherence to the statute would defeat its purpose (i.e. ensuring the safety of pedestrians)—ok to walk on the other side Holding: Reasoning: Breaking statutes w/o cause is wrong but in this case they used good sense and it was safer to not follow the statute. Class Notes: -the point of negligence per se is to avoid discretionary rulings like in this case—doesn’t allow for type of inquiry that would lend to ruling that they were not negligent b/c of using good sense to ensure safety when the law did not make good sense in that instance

35 -Court takes a functionalist view of the law rather than a formalist reading—law meant to protect their safety and in this case would have not done so. Legislature intended for exception (that was always in the common law) that allowed for prudence. Tedla was then not in violation of the intent of the statute. -Case poses problems for negligence per se---court gives an ordinary negligence analysis

Cases Not Required: pg 174 -Tingle v Chicago (no trains on Sunday, cow hit by train on Sunday): Court rules no negligence per se -White v Levarn (no hunting on Sunday, Δ shoots π thinking he’s a squirrel on Sunday): Court rules negligence per se

2. Judge Made Rules

F. Res Ipsa Locquitur General Class Notes: Baye’s Theorem: Probability of Negligence Given Harm (no need to memorize) P(N/H)= {P(N) x P(H/N)} / {P(N) x P(H/N) + ((1-P(N) x P(H~N))} Res Ipsa Falling Pr(H/N) Pr(H/~N) P(N) Pr(N/H) Cases Barrels (Byrne v 1.) .5 .001 .001 .334 Boadle); Chairs; 2.) .5 .001 .01 .835 Mud; Cow; Plane; 3.) .05 .001 .001 .0477 Boat; Water; 4.) .05 .001 .01 .336 Wedge; Cruiseship

-Res Ipsa Loquitur: Main Idea: Event has to be a kind that ordinarily doesn’t occur in the absence of negligence and must occur by an instrumentality in exclusive control of the Δ and must not be caused by any voluntary contribution by the π -Often are cases where π can’t get access to the evidence as it is in the control of the Δ -Res ipsa loquitur says that it is basically always negligence on the face of it -Res Ipsa Loquitur as an Information Forcing Rule: - A major justification by the courts for res ipsa loquitur is to smoke out information the defendant has access to (better than the π ). -There are three information possibilities: both parties are equally ignorant; Δ has better access to the information than the π ; π has no access to the information while the Δ has all of the access. -The burden is on the Δ to prove non-negligence—they are compelled to give up information to save their hides -Res ipsa loquitur seems unfair in the situation where both parties are equally ignorant: ie the Judson v Giant Powder Co. where all of the eye witnesses are dead and others with info are scattered. Absent of evidence contrary to negligence the Δ is guilty. But, a strength is that in such cases, it helps catch Δ who otherwise would go without paying under other negligence standards that depend on proving negligence. But, you could also catch innocent people under this role, so knowing the probability is important. - Res Ipsa is the evil opposite of per se, it allows things to go to the jury that otherwise wouldn’t even be able to make out a prima facie case.

- Res Ipsa Might be allowed where there is: o (1) an accident o (2) cause of accident was under D’s exclusive control o (3) had D used ordinary care, it probably wouldn’t have happened

36 . Bayesean thing, given that the accident did happen, what’s the probability that it happened because of negligence. If this probability is high (>50%), and even if there’s no other evidence of negligence, then it might go to a jury. . To determine these probabilities, you need the probability of negligence, and the probability of harm given negligence . If there’s lots of precaution already required, and a harm occurs, this is a good res ipsa case; less precaution required and a harm, then a less good res ipsa case. - Res Ipsa Might be used, even if the doctrine doesn’t quite fit where o We have repeated misses, Giant Powder o We want to smoke out information, Ybarra

- First case, court thinks accident couldn’t have happened without negligence, but also, maybe information forcing o Byrne v. Boadle Res Ipsa, Pl struck by falling flour barrel, D had hoist for lowering barrels above the spot, witnesses saw barrel fall on Pl, but no other evidence of how accident occurred.

Larson v St. Francis Hotel (chair on head during spontaneous VJ day celebration) compared to Connolly v Nicollet Hotel (mud in eye during crazy club party) -What differentiates these cases? -Negligent Accident Rate (probability of accident w/o due care) versus Unavoidable Accident Rate (probability of accident happening with due care) -In the chair case the court found the hotel not negligent due to inability to exercise enough care in reason to prevent the accident—unreasonable to place a guard outside each room. Dissent in alligator (mud case) said that to stage a guard outside every door would also have been unreasonable. -Both cases had raucous situations. Chair out window—VJ Day, Mud case—Crazy ass party -Perhaps difference in acute versus chronic (built up) danger. Nicollet Hotel (chronic danger) case had a build up of craziness where the hotel could have taken precautions (cut off liquor, security guard outside to warn people etc) where St. Francis had no control—VJ Day was spontaneous celebration outside of hotel. Applying the Hand Formula would produce the same result—cost of precaution low versus cost of liability/damages. -Cases different from negligence per se. In res ipsa loquitur cases, jury does have option to weight the case and they do the work.

-Byrne v Boadle (falling barrel—π knows who but not how) compared to Combustion Engineering Co. v Hunsberger (No Res Ipsa. π, Husberger, a workman, hit by a wedge dropped by one of D’s workmen (Durdella) as he tried to pound it in) -Difference: Byrne case the precaution would have been reasonable to take and was totally within Boadle’s control. In the Combustion case, precaution would have been prohibitive, job had inherent dangers and occurrence was not in the Combustion Co.’s control. -What about our cricket case? What if Betsy made a claim on res ipsa loquitur? The non-negligent accident rate is high in the cricket ball case. So, Betsy would lose.

-Haasman v Pacific Alaska Air Express (plane disappearing act) Class Notes:

Archibeque v Homrich (sleeping hitchhiker) Class Notes: -Family could win res ipsa on idea that falling asleep was most likely the cause of accident rather than a vehicle malfunction. 37 -Could family win under negligence per se for driving on the wrong side of the road? -The court says yes to the res ipsa idea, but the negligence per se (due to breaking of the law) was trickier. The statute was meant to prevent head on collisions; also most likely meant to protect that class of people as well.

General Class Notes on Res Ipsa Loquitur: -Chronic v Acute Danger: -One distinction in hotel cases (mud and chair) is btwn chronic and acute -slowly escalating and predicable---chronic –rapidly escalating—acute -Probability of negligence rises in chronic cases because of falling unavoidable accident levels—is a stronger res ipsa loquitur case than acute cases -Same issue in plane cases. No weather case is chronic while bad weather is acute -Bone v Boadle (barrel case) Hypothetical: What if there were two factories with one barrel falling and hitting Boadle. Is this still a res ipsa case? It is a weaker res ipsa case on the instrumentality issue (res ipsa requires that the instrumentality be in the exclusive control of the defendant). But, res ispsa also requires that the accident be one that was one that was likely to be caused by negligence and also, to a lesser extent, that π has less info than the Δ or none at all. One of the parties has to be liable and res ipsa can be used to force information -Things to keep in mind about res ipsa loquitor: -impact on trial procedure -the requirements for it to be invoked -identification challenges of the party at fault -idea of forcing out information -problems with potential misses (party not caught or innocent ones caught) -Ybarra (medical malpractice case with shoulder injury—multiple doctors and nurses—all held liable to force information): -What if there was only one doctor? Would be a pretty strong case very similar to Boadle barrel case. -In the actual case, the court holds the group liable. Group liability is rare -Similar to Judson (explosives factory—all eye witnesses killed) case where the guilty party would not be caught w/o res ipsa loquitur. An information forcing rule meant to break the “conspiracy of silence” -Court thinks the Δ’s have no incentive to come forward with info other than res ipsa. But what about discovery tools? -Elevator Hypothetical: What if a person is in an elevator with four others and his wallet is stolen. Can he sue them all for conversion? Probably not, in other tort cases the burden of proof is on the π, not the Δ’s. -Samson v Reising (Turkey Salad Problem): end of section--reread -compare to the multiple contractor case (reread)—there was no group liability due to lack of informational asymmetry btwn the π and everyone else and the other contractors.

G. Abnormally Dangerous Activities-Strict Liability

Restatement 2nd of Torts §519 General Principle (1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm. (2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous. 38 §520 Abnormally Dangerous Activities In determining whether an activity is abnormally dangerous, the following factors are to be considered: (a) existence of a high degree of risk of some harm to the person, land or chattels of others; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes.

General Class Notes: -The area of abnormally dangerous activities is an outgrowth of Rylands v Fletcher (reservoir that leaks into mine and causes explosion) is used as basis for cases in this chapter as it covers requirements for strict liability.) Would invoke strict liability rule when victim has no way of mitigating risk, activities that can’t be done safely even when due care is taken, activities done in inappropriate locations -Questions to ask: Is the activity matter of common usage? Is it inappropriate in time or place? Does it have value to community? Is it dangerous even with due care (due care unable to reduce risk)

Indiana Harbor Belt Ry. Co. v American Cyanamid Co. (rail car leaks toxic chemical in Chicago) Facts: Δ ships highly flammable chemical on a railway in a rented car through an interchange in Chicago. The railway company, π, switches the cars and discovers a leak. Π sues Δ for cost of clean up that it was charged by the city. Issue: Is the transport of hazardous chemicals an abnormally dangerous activity? Rules: Restatement §520 6-point test—see above Holding: Reasoning: -Posner feels that holding a party strictly liable has impact on the activity levels and location of activity on the part of the actor that negligence standard does not. Class Notes: -Posner makes a distinction between the chemical itself and the transportation of the chemical. Posner thinks that the transport is the relevant focus and applies Restatement §520 as a test. -Posner does an economic analysis and a practical analysis of the feasibility of changing the location of activity. Π argues you shouldn’t ship toxic chemicals through residential neighborhoods. Posner thinks the problem is that there is a residential neighborhood around the train tracks where a high level of hazardous materials are shipped. But that would be more of a question of what came first -Posner runs through the 6 point restatement test -Looks at if these types of accidents can be prevented by due care. Posner thinks that they can. But, we see no evidence of that. But, evidence aside, we only care about the if negligence did not cause the accident, which is unclear in this case. -Posner thinks the probability of harm is high and the rate of loss could be high from this type of activity and he has issues with the location. But, he thinks that the issue is not that the train runs through the neighborhood but that the neighborhood is near the tracks (like building homes between the runways of O’Hare. But issue of time—Absurd to build runways around houses.) -But, does Posner’s idea above have legal bite? Restatement doesn’t speak to issue of what came first and the black letter law is ambiguous and almost silent. -One issue is who we should sue, the shipper or the manufacturer? But, issue is if shipping the material is dangerous or the stuff in itself is dangerous—but this distinction may not be helpful in determining this. -What is the relevance of the fact that the railway system is a hub and spoke system that Posner points out? Perhaps hubs are always located in high populated areas and that to move these hubs from these places is very difficult—issue of rerouting is not an alternative. So what? In strict liability case we don’t care about this. While place may not change, the activity level could and you should pay when an 39 accident happens and someone gets hurt—can take other steps to mitigate (factories closer to the buyers, more safety measures on railroad, etc) -Does it matter at all that housing prices near the dangerous tracks are lower and more affordable than others? Doesn’t speak to which liability rule we should apply but does mean we should worry about the issue. Perhaps idea in broader remedies—relocation? -Allocative vs Distributive Issues: pg 422 Posner thinks the fact that one party is wealthy enough to bear the loss shouldn’t matter?

Miller v Reiman-Wuerth Co. Wyoming 1979 Facts: Holding: Reasoning:

Siegler v Kuhlman Class Notes: -Why is it different from the Cyanamid case? Locational differences and transportation differences— truck versus railway. Both liquids are highly flammable. -Transporting gas by trucks are highly dangerous activities, more so than flammable liquids by train. Why? Perhaps in frequency and room for human error. High level of magnitude of loss when done on crowded streets. -Maybe the issue btwn this and the previous case is the destruction of evidence. -Res Ipsa Loquitur vs Abnormally Dangerous Activities: What is different? In res ipsa, the defendant can get off if they can prove case. Abnormally dangerous activities is strict liability—causer always pays despite level of care taken. -Hypothetical: What if a car just slid and crashed because of the gasoline and there was no explosion. Would the case turn out the same way? -Hypothetical: What about people carrying gas in a tank in their car? It is not abnormal—very common place with a reciprocal risk.

Giles—Risk Based Negligence and the Regulation of Activity Levels -Thinks that we might get more mileage out of the negligence system when looking to impact activity levels, i.e. driving 100 gas trucks a day through the tunnel is negligent. Argues for operation of activity levels and location as a determinative factor in negligence as an additional way to get the defendant. -Is this a good idea? Maybe not—makes it look more like strict liability. -How would this work with Hand formula? Perhaps in altering the P (probability—activity levels) or L (loss-in change of location).

Klein v Pyrodyne (strict liability fireworks case) Class Notes: - Sullivan v Dunham (blasting tree stumps in air)

Madsen v East Jordan Irrigation Co. (explosion spooks mink kills her young) Class Notes: -Why is ruling different form the stump blasting case? Chain of causation—blast is not a direct cause of the killing of the baby minks—the mother mink broke the chain of causation -What happens, as it does in the case, where we make the mink father’s bear the cost of the accident? Maybe require blaster to give notice so farmers can take precautions.

40 -Perhaps the risk was just unforeseeable—the actor had no clue that minks kill their young when excited or that the blast would spook them. If farmers are liable for their own injury, they have incentive to make deal with the blasters to give notice or alter activities.

Insecticide Hypothetical: Luthringer v. Moore (drifting insecticide hurts other) -Strict liability applies: 6 Point Test -time and place was inappropriate -was an unusual risk---abnormally dangerous -preventable by due care—could have given notice

G. Respondeat Superior: Vicarious Liability—reread pg 434-446 and glean notes -The superior responds—The Δ is the employer where the employee commits the tortuous activity. -Area is governed by language of agency. Principle is held liable for acts of the agent. Question is what type of activities can the principle be held liable for? What makes the actor an agent of the principle and how do we distinguish from an independent contractor (where the principle is usually not liable)? -Principle is liable for acts of servant as long as the act is within the scope of their employment. -Why do we have this doctrine? -Economic issue: insolvency of the actor (the employee could be destitute); seems like a deep pockets justification -Incentive for employers to take due care for employees acting on its behalf (have careful hiring and firing (don’t hire a drug addict to fly a plane) and oversight) -But, what is all employees were solvent? Is respondeat superior still a good rule? -Idea seems transferable to parents and children. But, we don’t hold parents liable for torts of the child.

Ira S. Bushey & Sons v United States (drunken sailor messes up drydock) Facts: Sailor for the Coast Guard works at a drydock and the seaman shows up flat drunk and turns a wheel that floods the drydock and messes up property of π . Π sues the Government for the acts of their employee PP: Issue(s): Was this conduct done in the purpose of employment. Rule(s): -Purpose Test-pg 438 1 Restatement, Agency, 2nd §228 (Lower court dismisses this test by the appellate court says they shouldn’t). Even though the purpose test fails, they still hold the Gov’t liable (?) under vicarious liability. But, the requirements of vicarious liability are all or none not one or more. -Court points to the forseeability test. Holding: Reasoning: Class Notes:

Konradi v US (mailman required to supply own car gets in accident on way to work) Facts: PP: Issue(s): Rule(s): Holding: Reasoning: -One issue is that the post office requires the employees to provide their own cars to deliver the mail, thereby increasing the amount of driving that they do and increasing the risk level. -Posner’s Activity Alteration Test: pg 438 bottom. If one objective of vicarious liability doctrine is to give employers an incentive to consider changes in the nature or level of their activities, then “scope of 41 employment” can be functionally defined by reference to the likelihood that liability would induce beneficial changes in activity. So, if applying liability would have beneficial impact on activity levels and type, then application of vicarious liability would be appropriate. Class Notes:

Roth v First National State Bank of New Jersey Facts: PP: Issue(s): Is the bank liable? Rule(s): Holding: Reasoning: Class Notes: Application of the Four Tests: -Purpose Test: Purpose was -Friendly’s Forseeability Test: Employer could not have foreseen the accident. -Increased Risk from Employment Test: This applies, teller gets more information than others through her employment. (If she didn’t have access to this information, it wouldn’t matter) -Posner’s Activity Alteration Test: Bank wouldn’t really be able to alter activity to prevent the accident. -All of these tests point toward whether or not the activity was in relation to employment or not.

Forster v Red Top Sedan Service Class Notes: Application of the 4 Tests:

Reina v Metropolitan Dade County (mean bus driver case B) Class Notes: Application of the 4 Tests:

-In a duel purpose case, vicarious liability applies (one could be in interest of employer and other could be personal vendetta). General Class Notes on Independent Contractors: -Independent contractors are distinct from employees in that employer is not liable in general. They are thought solvent and not under direct supervision or control of the employer. Exceptions: -Nondelegable duties (inherently dangerous activities): you can’t have someone else do something and not pay for it (Yazoo v Mississippi Valley Railroad Co.)pg.443,. An exception to this exception is cases of collateral damage where there is no vicarious liability. -Estoppel—Inherent Authority :you can’t have people rely on the act of agent and then sidestep liability by saying they are an independent contractor -Steer Goring Case deals with issue of independent contractors. Employer held liable as activity is considered inherently dangerous -Wilton v City of Spokane pg 444: Why is there no vicarious liability in this case? General Notes on Respondeat Superior: -Collateral negligence (unexploded dynamite case)—Window washing case. Window washing on skyscrapers is peculiar risk and performed by contractors---Nondelegable duties areas. Employer is vicariously liable if accident occurs (dropping water on people below). But, in a case on an accident unforeseen and not a peculiar risk that makes it a nondelegable dutie (another worker causes a pin to fall out making scaffolding fall), employer is not vicariously liable because of collateral negligence -In peculiar risk activities—employer is vicariously liable 42 -How do we distinguish independent contractor from employee? (paper boy case in book) -Restatement has a 10 point test for distinguishing it. But, the first subsection of the restatement is the most helpful—does the employer have control or right of control over the agent’s performance. If so, the worker is a servant—an employee. If not, the worker is an independent contractor. -IE. Pizza boys: The worker provides their own instrumentality (the car)—one point for an independent contractor. But, employer controls the route, method of delivery etc---making the driver an employee more so than an independent contractor -It is important to work through the factors to get an overall view. -Posner: Should vicarious liability attach for transport of nuclear waste through a neighborhood? Posner says yes because they should take into account safety of transport when considering when to take the risk (?)— email for clarification.

IV. Chapter 4: Duties and Limitations

A. Duties Arising from Affirmative Acts -Section addresses situations of a somewhat exceptional character where a π is injured by a careless Δ but is denied recovery b/c a Δ is said to have owed the π no duty of care. -The precise claim in a negligence case is that the Δ had a duty to the π and that he breached that duty by failing to take due care. -In some situations a careless Δ will be found not liable even though his failure to use due care caused the π a great deal of harm b/c he owed the π no duty. For example: A neighbor is not liable for the damage to a person’s house because they failed to call 911. They may be called unreasonable, but the neighbor did not owe a duty to the person whose house burned down. -Duties must be established. Then we determine if the duty was breached to determine negligence -Law imposes duty of care on people when they engage in affirmative acts—the sort of acts that can create risks for others -Conversely, a Δ who does not act (does nothing) cannot be held liable, as a Δ who does not act does not owe a duty to anyone. This is called nonfeasance, as opposed to affirmative acts known as misfeasance.

General Class Notes on Duties: -Good Samaritans—No Duty to Rescue Rule: -Common law says there is no duty to try to rescue even when there is no or little harm of effort needed on your part. -Morally, it is wrong to intervene—throwing a life preserver to someone in the water, but legally person has no duty to act---or to be a good person. -How does this rule square up with the private necessity rule we discussed earlier where the person in peril can get the benefit of imposing on another to save their life or a great amount of property? Does the doctrine of private necessity jive with the no duty to rescue rule? There is a distinction between acts and omissions. In the rescue case, we would ask for an action while in private necessity, we ask the owner of the property or good not to intervene to allow self-rescue. -What about high risk areas? Would it be good to require rescue in high risk areas? Maybe not—may make people alter their locations but there wouldn’t be people to help those who go to the high risk area and need saving. -Do people have any incentive to rescue in high risk areas? Perhaps, a moral incentive or utilitarian incentive to feel good. But, there is no material incentive. What about potential risk takers—what would they prefer? -Sometimes a rescuer is entitled to compensation or damages for any losses in the attempt of the rescue. Should we have compensation or even a reward system in place as an incentive to rescue? But, this is not 43 what motivates rescues---altruism does. Would a reward system cancel out altruistic rescues? (Similar to issue of blood donors and commodification of the “good”) -Slippery Slope: My view—not a legitimate reason to not impose a duty. Just a matter of creating a definition and a standard of when to judge when intervention is necessary just as we have rules of guidelines concerning what exactly is the due care standard.

Yania v Bigan Pennsylvania 1959 Facts: Δ has mines dug on his land resulting in deep trenches, one of which had a pump to remove water. Π’s husband was on property and while helping to start pump, jumped from the 16 ft embankment into the trench and drowned. Π charges that the Δ 1) induced her husband to jump by cajoling and verbal teasing to the point where he lost his freedom of choice 2) failed to warn him of the danger 3) and failed to rescue him or to attempt a rescue. Δ demurred for dismissal, so the statements in the complaint are taken as true by the court. PP: lower court sustained preliminary objections (the demurrer); π appealed Issue(s): Rule(s): 2nd Restatement of Torts §314 and §322 Holding: Orders affirmed Reasoning: -Yania was an adult of normal intelligence and Δ did not physically compel him—the choice was his own. He was also reasonable enough to know about the harm involved and took the risk upon himself. -Δ owed no duty to Yania to rescue him Class Notes: -

Restatement 2nd of Torts

§ 314: Duty to Act for the Protection of Others The fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action. Illustration: A, a strong swimmer, sees B, against whom he entertains an unreasonable hatred, floundering in deep water and obviously unable to swim. Knowing B's identity, he turns away. A is not liable to B.

(f. Except as stated in §§ 335, 337, and 339, it is immaterial that the other's peril and need of aid or protection is due to the condition of land or chattels owned or in the possession or custody of the actor, unless he stands in some relation to the other which carries with it the duty of preparing a safe place or thing for the other's reception or use, or of warning him of its dangerous condition.)

§321: Duty to Act When Prior Conduct is Found to be Dangerous (1) If the actor does an act, and subsequently realizes or should realize that it has created an unreasonable risk of causing physical harm to another, he is under a duty to exercise reasonable care to prevent the risk from taking effect. (2) The rule stated in Subsection (1) applies even though at the time of the act the actor has no reason to believe that it will involve such a risk.

§322: Duty to Aid Another Harmed by Actor’s Conduct If the actor knows or has reason to know that by his conduct, whether tortious or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent such further harm.

44 Soldano v O’Daniels Class Notes: -What about a telephone rule where you have a duty to call for help when another person is in danger. Low cost, requires little intervention or susceptibility to harm. -Some things to consider: there are different liability rules covering botched rescues and aborted rescues (Hurley, O’Neil and U.S. v Lawter cases pg 227-230)

B. Duties Arising from Undertakings pg 227 (go back and retrieve notes and briefs from book) General Notes: -Hypothetical: What is someone is pulling in a person from the water, gets tired half way through and then quits and walks away. Is the supposed rescuer liable? Issue of reliance differs from medical malfeasance cases where he had no ability to call another rescuer. Could go the other way

Botched Rescue Doctrine v Abandoned Rescue Doctrine: - C. Special Relationships p233 reread over break and brief

Kline v 1500 Massachusetts Ave Facts: π robbed in common hallway of building and sues landlord. When π rented apartment, there was doorman but at time of robbery, no longer had a doorman for the robbery and crime rates were rising in the area. Π sued landlord. PP: Trial court gave judgment as a matter of law to the Δ saying he had no duty. Court of appeals reversed. Reasoning: Landlord was in the best position to take action to prevent the incident from occurring and knew that crime rates in the area were rising. There is a special relationship—Landlord/ tenant that itself imparts certain duties on the part of the landlord. Rule: Class Notes -was a big shift in the normal court rules handling intervention against 3rd parties 2. Duties to Protect Others from Third Parties: read over break

Restatement 2nd of Torts § 315. General Principle There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless: (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection.

Tarasoft v Regents of the University of California pg 239 Facts: PP: Holding: Reasoning: Rule: Class Notes:

Thompson v County of Alamdea 45 Facts: PP: Holding: no liability Reasoning: Rule: Class Notes: -Why no liability?

11/28/05 General Class Notes on Duties and Rescue: -Background Stranger rule is there is no duty to act or rescue on part of stranger unless there is some affirmative act where they caused the harm. -this is being challenged by legal scholars who are calling for a basic moral guideline to the law -No-cause—no rescue rule is the most objectionable, where intervention has no chance of risk on the part of the rescuer. Law is right to be hesitant where rescue imposes risk on the rescuer -No duty rule is an example of the imperfect overlap of morals and the law. Example of the law’s reluctance to sacrifice individual autonomy for another. -Identity issues: where should burden lie when there are many possible rescuers (multiple defendants)? -Tort liability as a stick. Perhaps we should talk about carrots or rewards to encourage rescue. -Once a rescue has started, abandoning rescue opens one to liability if person is left off in a worse state or the person being rescued relied on the rescue. Rescue can be done negligently and also give rise to liability. -Relationships between the parties give rise to different liability claims.

Special Relationships: pg 233 reread -Yania (well case) and TransPacific (fishing boat man overboard test) with failures to attempt rescue in both cases: Why liability in the fishing boat case and not Yana? A shipowner or captain has special relationship with crew and obligation to rescue. Also, -Default term—if they contracted around this issue and also contracted consequences, you have to stand by this. Parties can contract around the rule if they do so clearly. If not, court picks a default: -Majoritarian Default: In a majority of cases, would captains bargain with sailors for having captain attempt rescue? Yes. -Penalty Default: Pick the party who is in the best position to have brought an agreement to govern the situation and make them pay -There is no duty to notify community when releasing a dangerous person but a duty to inform the individual if a threat has been noted. (Tarasoff case) -Duty sometimes depends on existence of special relationship: must carve out plaintiff and defendant from a broader class of people.

3. Public Duty pg 249 -General Public Duty Doctrine: No liability for negligent provision of emergency services—exception subject to special relationships -Diverges from background liability rule. Start of anti-Rylands list. Even if you are a wrongdoer, you don’t pay. Wanzer v District of Columbia (911 call with bad advice)

D. Duties Arising from the Occupation of Land Pg253-70—glean notes from book and fill in, esp definitions and restatements General Notes on Duties arising from Occupation of Land: -States are split on what liability in these cases involve. Some don’t care about distinction btwn invitees and licensees. 46 -Common Law Categories of Class of People: -trespasser—no rights or privilege to be on land -licensee— has privilege to enter or be on land only by virtue of the possessor’s consent See Restatement §330. -invitee— Two classes: business invitee and public invitee. See §332 Invitee Defined

1. Duties to Trespassers Haskins v. Grybko (woodchuck case) Facts: Δ hears rustling in brush and assumes it is a woodchuck and shoots it. Later finds out the π ’s intestate was in the bush and he had killed him. Π sues. PP: Δ was negligent. Issues: Rules: Holding: Supreme Court of Mass reversed. No duty—no liability b/c π was a trespasser. Reasoning: Class Notes: -An exception to the duty rule under affirmative acts—no duty to trespasser when you are on your own land. The person hurt is a wrongdoer in relation to the landowner.

Herrick v Wixom (firecracker injures circus trespasser) Facts: π sneaks into the circus and during the show gets hit in eye w/ firecracker PP: Trial court ruled for Δ. Π appealed. Issues: Rules: You owe duty to trespassers that have been discovered Holding: Circus is liable. Reasoning: The trespasser was known (seated in audience) and the possible danger to him was also known (firecrackers inherently dangerous). Class Notes:

Cleveland Electric Illuminating Co. v Van Benshoten (exploding construction site outhouse) Facts: Construction crew erects outhouse over a hole leading to sewer. Π sees this and sneaks and uses the outhouse and smokes inside. The spark from lighting the cigarette causes an explosion shooting him out into the street. Π sues. PP: Issues: Rules: Holding: Reasoning: Class Notes:

Ehret v Village of Scarsdale (gas leak kills trespasser in model home)

Keffe v Milwaulkee & St. Paul Railroad (attractive nuisance) Facts: Railroad has a turntable that is visible and accessible to all and in a place where it is known kids are present and play. A kid plays on it and gets seriously hurt. Holding:liability Reasoning: Class Notes:

47 -In common law, the true attractive nuisance rule applied only if the attraction to trespass was inherent in the possible danger (a giant lollipop filled with razors—Holmes case—pool filled with acid—no liability as pool not seen from he road) -What about a case with an axe next to a stream where a kid trespasses and chops off foot? Part c of §339 applies—no liability b/c even kids know and realize axes are dangerous. Axes, ponds, swimming pools etc fall under this. -How does Hand Formula apply? Living in a bilateral world—both parties can reduce or prevent the accident. Costs for the kids to prevent the accident could be higher (ie. kid’s parents keeping track vs a high fence) § 339 Artificial Conditions Highly Dangerous to Trespassing Duties (include all the restatements from the book)

2. Duties to Licensees -Owner has to share whatever info he has about the dangers on his property but don’t have to search out for new info.

Davies v McDowell National Bank (carbon monoxide poisoning) Facts: PP: Issues: Rules: Holding: Reasoning: Class Notes: -Why is the decision in this case different from the Ehret case (trespasser dies from gas leak in model home)? The Village of Scarsdale created the risk, it was an external risk not originally on the pr. In Davies,

Lordi v Spiotta Facts: PP: Issues: Rules: Holding: Reasoning: Class Notes: -Why is the holding here different from Davies? Involves a case of active negligence (malfiesance) where Davies wasn’t the result of any act, but an inaction.

3. Duties to Invitees (business vs public)

-The categories are fluid. You can move from invitee to licensee to trespasser General Notes: Hypotheticals -Grocery store employees chasing a rat with a knife. Customer steps in and steps on rat and gets stabbed. Customer sues for negligence. What is the result? -When he enters he is an invitee (business) and turns into a licensee (volunteer) when he steps on the rat. He would be invitee if they shouted “stop rat” -Rockwell is eating Whataburger! and sees some youths in the store. They go to the parking lot. Gets in staring match, then a shouting match and a fight. He gets his ass whooped but calls out for help and the Whataburger! manager doesn’t help. Is the store owner liable? No, owner had no duty because he had no idea

48 of the risks inherent on the property that he would have prevented. As the fight began, they shifted from licensees to invitees and owner had only a duty to protect from hidden risks.

Jacobsma v Goldberg’s Fashion Forum (husband catches thief in store and gets hurt) Holding: Store liable Reasoning: π was an invitee as the manager shouted “stop thief” to him asking for help. So store had duty to him for his safety. Class Notes:

Rhodes v Illinois Central Gulf Railroad pg 268 (train rescue case—dude lying in warming area) Facts: Dude seen by many employees lying in warming area. All assumed he was sleeping or loitering. One person called in to have someone check on him. Mulitple calls, no one acted. Man really had a medical emergency. Holding: No Liability—No Duty to REscue Reasoning: Class Notes: -If Rhodes is a trespasser, what duty did the railroad have to him? If there was a danger on the property and trespassers were known to frequent the land, they had a duty to warn. But a duty to rescue? No duty. But, Illinois has a place of danger exception to the no duty rule—if your condition hurt them or are about to get hurt by your condition, then you have an affirmative duty to rescue. -If Rhodes was a passenger, there would have been a special relationship meaning train co had a duty to rescue. -If he was in a place of danger (on the track) the railroad would have a duty to rescue. Also in cases of recurrent danger. -Just because a trespasser is injured on the land, that doesn’t necessarily place him in a place of danger. -A duty can arise from an affirmative action---there were attempts to help Rhodes. But, Rhodes didn’t rely on the rescue and wasn’t worse off because of the attempts themselves.

Boyd v Racine Currency Exchange: pg 269; brief this case

General Notes on Duties about Occupation of Land: -Trespasser in the bear trap case: If a licensee comes on and gets caught, there is a duty to rescue. If, however, he warned him of the danger, there is a lower likelihood of duty to rescue. Trespasser case is sort of similar to situation w/ licensee. Hypothetical—Hairbrush Salesman: What if a woman invites a hairbrush salesman into her home to show her the brushes. He gets hurt in her home. Is he an invitee, licensee or trespasser? He is a licensee. Why not an invitee? (Win-win situation—class of Δ and class of π want the same thing.) Both parties would prefer licensee option: homeowner doesn’t have to look out for dangers and the salesman knows in the future he won’t be unwelcome.

Rowland v Christian famous case to remember Facts: Guest in home cuts hand on a faucet. PP: Issues: Trial court gives summary judgment for Δ saying π was a licensee Rules: Holding: California Supreme court reversed Reasoning: -reasonable people don’t alter their conduct depending on if a person who is injured was a trespasser, licensee or invitee n order to determine the landowner’s duty of care. To do so is contrary to social mores and humanitarian values. 49 -a person’s life or safety doesn’t become less worthy of protection or compensation b/c he is on land w/o permission or w/o a business purpose -Court argues if the set of precautions to protect one set of people are the same to protect another set of people, then the distinction between them is irrelevant. Same precautions to protect invitees also protects licensees. -they look to forseeability of harm, availability of insurance Class Notes: -California Supreme Court says the categories are obsolete -What is the best practice? The Rowland court or the common law distinctions? What system benefits entrants and landowners? What about decision and error costs? How often does Rowland present different results from the common law distinctions? -Common law categories are just short cuts to the balancing system of tort law.

Fireman Hypothetical: What if you negligently set a fire and a fireman comes to rescue you and gets hurt, can he recover? No. The Fireman Rule forbids policeman and fireman from recovering from people who negligently put themselves in danger or from recovering for injuries suffered from the inherent dangers of the job. The Fireman Rule doesn’t apply to intentional acts (i.e. arsonists) Public Official Hypothetical: Public official comes to read your gas meter. Is he an invitee, trespasser or licensee? They are an invitee according to rules, regardless if he is going to a home or to a business.

Anti-Rylands List: Background rule is negligence (wrongdoer pays). The Rylands rule is a causer pays— strict liability—exception to background rule.

G. Negligent Infliction of Emotional Distress

General Notes: -NIED marks an evolution in the law—departure from impact rule of torts—no impact, no tort -Basic setup: the Δ’s actions have caused the person’s grief or fear indirectly. Actual injury doesn’t have to occur. -Court’s hated this rule for years. Now issue is how much we apply this. -Three Categories of NIED -Near Misses -By-Stander Cases: Person watches another get hurt and is affected; related to near miss cases -Exposure: Person exposed to something, not hurt but freaked out

Robb v PA Railroad CO (car stuck in rut and lady almost hit) Facts: Lady’s car gets stuck in a rut on the railroad when the railroad fails to maintain the area. She jumps out of car and is nearly hit by the train. She sues for NIED. PP: Issues: Rules: Zone of Physical Danger Test. Holding: Reasoning: -Does away with impact rule, but still requires a p -uses zone of physical danger test: π was in the immediate range of physical danger where contact could have occurred (but contact not required), but there has to be a physical manifestation of the fear (ulcers etc) Class Notes: -Old rule was the impact rule: no impact, no tort. Grew in disfavor. 50 -Objections to NIED include: Fright alone doesn’t give rise to cause of action, so consequences of fright do not give rise to cause of action; hard to prove emotional distress—leaves open to fraud and error; will flood courts with cases -People got around impact law by making parasitic claims—tacking on emotional distress to minimal contacts -Some courts substitute zone of danger test for foreseeability test -What if she had been able to move her car at the last minute? No difference in the law. She is still in the zone of danger

Lawson v Management Activities Inc. (plane scares car salesmen) Facts: Car salesman hear a plane falling and see it and think that it will hit them. The plane barely misses them. They sue for emotional loss for fright. PP: Issues: Rules: Foreseeability Test Holding: No recovery. Reasoning: Court implements 7 factor test for NEID: forseeability, degree of closeness, etc. etc. Class Notes: -Don’t concern self with the 7 point test in the book -court relies on rule of foreseeability. The pilot did not forsee that a possible risk of his activities was that people below would be freaked out.

Brief note cases in btwn

Quill v Trans World Airlines (passenger freaked out from near plane crash) Facts: Plane enters nose dive and everyone thinks they will die. Plane pulls up at last moment and everyone is saved. Quill sues for NIED. PP: Issues: Rules: Zone of Danger Rule Holding: Reasoning: Class Notes: -Court says the man was in the plane and would have been hurt (or killed) by the accident -Also, Foreseeability Test applies here. It is a foreseeable that this sort of risk was involved in operating the plane.

General Notes on Bystander Cases: --brief pages 296-303 -Like the contact rule that restricted recovery, common law says no recover for bystanders. The zone of danger analysis ate away at this rule. -Two approaches to problem: -π put in fear of injury can sue for recovery as a bystander -Dillon v Legg Case (pg 301) -Early bystander cases all seem to involve women. Thought that fright of the mother was more legitimate. Also concern for businessmen, saying that women’s fragile psyches shouldn’t be their burden. Very gendered evolution of the law. -Children can recover for emotional distress if their parent is hurt -You can’t recover for emotional distress when there is mistaken identity

51 Dillon v Legg (Mother watches kid get run over) pg 301 Rule: California Rule: Rule in the majority of states now. Agree with impact rule, but can recover when no impact when π is closely related to the injured party or at the scene at the time of the impact and as a result suffers serious emotional distress—a reaction beyond that which would be anticipated in a disinterested witness and which is not abnormal in response to the circumstances. General Notes: -California Rule: Three factor Test: -Relational Proximity: closely related to victim -Spatial Proximity: near but outside zone of danger -Temporal Proximity: must have witnessed actual accident -Case poses a standard that response must be extraordinary -The Three Factor Test has stood test of time in CA but have been whittled in other cases -There was a history of miscarriage cases leading up to this, where doctors advised pregnant women under stress (son or hubby in war etc.) to have bed rest to avoid a miscarriage. One justice advocated extending the reasonable man test to the reasonable woman test as well and applied to fright cases to enable women to recover. It was eventually thought a wee bit sexist—the whole weaker woman idea.

Marzolf v Stone (father sees son die after motorcycle accident) Facts: Father sees son die painfully on the scene and sues of emotional distress Holding: Liability

Gain v Carroll Mill Co. (father sees son’s accident on tv) Facts: Father sees son die on the evening news and sues of emotional distress Rules: California Rule (Dillon)—Was not there at the scene of the accident. Holding: No liability. Reasoning: Class Notes: -Court concerned with flood of litigation

Hypothetical: Gersen walking with baby and dog. Prof. Baird zooms around corner killing the dog but missing Gersen and Gersen Jr. Can Gersen recover for emotional distress? On the Dillon Test, it would fail on the relational prong (can’t recover for destruction of property). Would not fail on a near miss basis if the fright caused harm, citing Robb, since he was in the zone of danger. -What about the conversion claim? Could emotional distress be parasitic on the conversion claim (loss of dog)? Probably not. Gersen will find out.

Hypothetical: A pleasure driver gets into an accident. Should he be liable on a but for causation and Hand formula idea? Ie. But for your pleasure drive that was not cost/benefit justified, I wouldn’t have been hurt or nearly hurt but freaked out. No liability on that idea alone

***Did this out of order: Chapter 7: Strict Liability A. Liability for Animals -used as a precursor to the study of strict liability -Distinction btwn domestic and wild animals

Beherns v Bertram Mills Circus LTD (elephant tramples dog) Facts: Little Pomeranian dog is killed after Δ’s elephant chases it at the circus and Mrs. Beherns is injured. PP: Issues: Wild animals vs animals with vicious propensities 52 Rule: Strict liability for wild animals. Court has defined elephants as wild animals as a matter of law—the cost of making exceptions is too high. -Scienter retinuit—A person who keeps an animal with knowledge (scienter retinuit) of its tendency to harm is strictly liable for the damage it does if it escapes -All animals ferae naturae (all animals that are not by their nature harmless or domesticated) are presumed to the have the propensity to harm—be vicious. Holding:Δ strictly liable Reasoning: -court views elephants as inherently wild—cites previous court decision. Court rejects the π ’s claim that Burmese Elephants are domestic and not wild—In Burma, elephants are used everyday—in Burma the social activity with animals is different. -Court does say the elephant is similar to a cow in nature and propensity but that it is still a wild animal Class Notes: -Perhaps court has reason for strict liability provision to impact the level of activity and the place of activity as well as the level of due care for wild animals -Δ’s make several arguments: 1-elephants aren’t wild (they lose); 2-this elephant is not wild (they lose); 3-Argument in the Alternative (you can take 2 mutually inconsistent positions): even if it is wild and thus we are strictly liable, the rule doesn’t make us strictly liable for all types of damages—only for the harms associated with its vicious tendency. Elephants bump into stuff—it is what they do. The elephant wasn’t attacking. The court argues: what makes elephants harmful is their size and strength. -Hypothetical: What if a sleepy lion falls on someone and suffocates them. Is the owner strictly liable? Person could act to move lion—depends if terror caused the person to stay be suffocated. -Dogs: No strict liability unless there has been a known propensity for viciousness

Earl v. Van Alstine (bee keeping case) Facts: Bees get loose and sting people on a highways Reasoning: Court says that bees are domesticated animals. They are kept and are “necessary for the existence of man.” They are useful, common and not dangerous---sort of a test to differentiate btwn wild and domestic animals Class Notes: -What about baboons in applying the court’s three part test? Baboons—no utility. Commonality—not common. Danger—are dangerous and thus are wild. -Hypothetical: What about fire ants in a privately owned park that attack and kill someone. Is the owner strictly liable? The ants are wild and vicious, but unsure if the owner knew about them. ?? -Hypothetical: What about a camel kept by someone who bites another? The camel is domestic as it is kept and has a utility. There is no such thing as a wild camel—all are domestic. No strict liability. But, what about the danger test? Not very dangerous.

General Class Notes: -Remember Bolton v Stone (cricket case): no difference in the level of precaution taken in a negligence world and a strict liability world. Only difference in a strict liability world is that there is an impact on activity levels and location. -Reciprocal Risk: Regarding pets, the reciprocal risk is not that everyone had a pet –only 50% of households do. But, it is as likely that someone has a pet as you do, so the risk is reciprocal. -IS the subsidization of pet owners by non pet owners fair in having negligence rather than strict liability for pet owners.

Banks v. Maxwell (Goring case that uses Biblical law as precedent—sort of cool) Rule: One bite rule: basically, free pass if you did not know animal was vicious, but next time you pay.

53 Reasoning: Court quotes the negligence rule in Exodus regarding ox that gores someone. If owner did not know of the propensity, then he gets off. If he does know about this propensity and did not take precaution, he is put to death. ---Basically the one bite rule of tort law. Class Notes: -In case where an animal injures another and kills it—the owner of the vicious ox gives his live ox to the owner of the dead ox and gets the dead one in return. Sort of compensation (yet new owner must take precautions with the new ox). Also, the owner of the vicious ox does get some compensation in the dead ox.

Wild Domestic Lions Bees Elephants camels Steer and oxen

Smith v Pelah Rule: Owner of land is not strictly liable for harm done to someone who trespasses on the property by a non- vicious domestic animal. Class Notes: If there is a sign that says beware of guard dog and person trespasses and is bitten, no strict liability attaches even if the person has limited rights to be on land.

Vaughn v Miller Facts: PP: Issues: Rules: Holding: Reasoning: Says unrestrained tiger similar to fire or water. Class Notes: -court rule is against Rylands v Fletcher and is a minority view not followed by other courts.

Bostock-Ferrari v Brocksmith (muzzled-chained bear causes frightened horse to hurt self) -No negligence: bear was on leash Facts: PP: Issues: Rules: Holding: Reasoning: Class Notes:

Opelt v Al G. Barnes (boy steps over rope and is scratched by leopard) Facts: PP: Issues: Rules: Holding: Reasoning: Class Notes:

54 V. Cause in Fact

A. But-For Causation

NY Central RR v Grimstad 2d Circuit Court of Appeals, 1920 Facts: Grimstad was capt of a barge and fell overboard. Wife went to get a line to help him but he had disappeared when she returned. Wife sued barge owner for failing to provide life saving equipment on the vessel. PP: Jury found for Grimstad. NY Central RR appealed Issues: Rules: Holding: Judgment reversed Reasoning: Too many factors could have contributed to the death. Could have died b/c of lack of skill of swimming and no way of knowing that if equipment was there if he would have been saved---many factors that could have impeded this. Class Notes:

Gardner v National Bulk Carriers Inc 4th Circuit, 1962 Facts: π was seaman on a ship and went overboard btwn 6:30 and 11:40pm on a moonless night. He was missing for 6mi before anyone noticed and the ship had gone over 100mi. The ship didn’t turn around to search and Gardner was never seen again. Gardner’s estate sued ship owner for negligence saying they should have turned around to search for him PP: Trial court found for National Bulk Carriers citing Grimstad . They were not negligent b/c many factors could have caused death and the likelihood of rescue was very very low. No causal relationship btwn negligence and the death. Gardner estate appealed. Issues: Rules: Holding: Reversed for the π as a matter of law. Reasoning: While many factors were uncertain, it is certain that many seaman have fallen overboard in the past and have survived for hours. Attempting rescue would have entailed little risk save a delay in the voyage and Δ had a duty to rescue which he breached. Also, the neglect of the duty to rescue was a contributing cause of the death Class Notes: -Instance of shadow law. Most likely a public policy reason behind ruling in such a fashion. Wants to encourage future rescue attempts.

Stacy v Knickerbocker Ice Co. Facts: Δ had a business of removing ice from lake to ice houses and used π’s horses to remove snow from the ice. The horses became spooked and were uncontrollable and ran to a previously harvested patch that was covered in snow and broke through the ice drowning. Π sues for negligence to recover $ of the horses citing negligence in (I) failing to build fence around ice as mandated by state (II) failing to notify employees of location of the ice (III) failing to keep ropes and other equipment nearby which could have been used to save the horses. PP: Trial court found for Δ Issues: Rules: 55 Holding: affirmed Reasoning: None of the precautions would have prevented the horses from drowning. They were wild and uncontrollable and wouldn’t have headed fence and maybe would have broken through. Notification of employees would not have helped as the employee dragged by the horses knew and couldn’t control horses and it is too speculative to say if presence of ropes would have saved them once they fell through and they were not required. Horses went under the ice in deep water unlike the employee who was saved. Class Notes:

Haft v Lone Palm Hotel Facts: π ’s family who could not swim drowned in a hotel pool despite her warning not to go into it. Π sued for negligence saying the hotel broke a state law requiring them to post a sign saying no lifeguard present to provide a lifeguard. Π asked for instructions for jury to find for them as a matter of law. Judge refused. PP: Trial court found for Δ. Issues: Rules: Holding: Reversed. Judge erred in not instructing jury as requested. Reasoning: Public policy concern---law meant for just this sort of situation and Δ cannot escape liability for pointing to his failure to comply with signage because lack of a lifeguard was obvious. Statute meant to make pool owners of this class provide lifeguarding services to protect the very class the π s belonged to. There is a causal link btwn the failure of them to provide a lifeguard and the death of the π ’s family. Sign also gives notice of general hazards present. Even if it is uncertain or the π to prove that a sign would have prevented the accident, the burden of proof lies with the Δ to prove that their noncompliance was not the proximate cause of death. W/o evidence of this, π wins as a matter of law. Class Notes:

Bernard v Char Go back and brief rest of Chapter 5 Facts: PP: Issues: Rules: Holding: Reasoning: Class Notes:

1/10/06—General Class notes -Preponderance of the Evidence Rule (POE)—If it is 51% or more likely that harm was caused by the Δ, then π collects 100% of the evidence. Probabilistic rule. Could be described as error minimizing rule. -Rodeo Promoter Hypothetical: POE thrown out and made her issue tickets—information forcing rule. Causes her to take action to provide more solid evidence than required by POE which can cause errors in the case. POE in this case causes more errors than a information forcing rule and doesn’t require the π to come up with any evidence. -Smith v Rapid Transit (look up)—dude hit by blue bus (all he remembers). He sues company b/c 90% of the blue buses in town belong to them (like Firestone tire case in Civ Pro). Does the dude win? Should we use POE rule? The court found no liability. Statistical evidence alone is not enough. What could the dude do to better establish his case? Search for eye witnesses. (Comisky v Hertz—82% of trucks owned by Hertz. Hits dude during a snow storm. POE used in this case because of lack of avenues for discovering more evidence) -

Herskovits v. Group Health Cooperative of Puget Sound (lung cancer diagnosis and death case)

56 Facts: Δ failed to diagnose π ’s lung cancer in a timely fashion and π died. Π ’s estate (family) sues Δ on a loss of chance strategy—reduced his chances of survival due to early detection from 39% to 25%. PP: Issues: Does a patient with less than a 50% chance of survival have a claim against hospital for negligence in detecting cancer? Is a 36% reduction in the chance of survival sufficient evidence of causation for doctor’s delay to be linked as proximate cause of death? Rules: Loss of Chance Rule of recovery Holding: Reasoning: Class Notes: -If the rule is no liability for delay in treatment when chance of survival is below 50%, then doctors have no incentive (beyond morals and Socratic method) to give proper care. The Problem of Recurring Risk: Δ knows that if system follows POE rule, he is never liable for his negligence. (Same as boat case with dude overboard at night). Law meant to bring about justice, compensate and deter. -What could the law due to overcome the Problem of Recurring Risk and POE? (1) Have people pay value of life based on % of survival. (2) Weight amount of recovery on the increased amount of risk—only pay in issues where there is a recurring risk (lost chance recovery)—pay for taking away chance of survival. (3) Split the difference--pay somewhere in btwn lost chance and harm caused (?)—ask to compare these notes with someone -General Rule: Courts are more likely to impose probabilistic recovery in medical cases because of good data (mortality tables etc) than in other cases such a man-overboard-cases. -What about unjust enrichment claims against a doctor who goes golfing instead of attending to a dying patient? On a POE causation claim through contracts, but doesn’t really compensate well (get pennies). It works well in other areas of law like insider trading. Idea is you can look to other possible claims or methods when POE doesn’t do it for you.

Frye v United States Evidence: Frye Rule: judge only admits evidence that is mainstream science. Court later moved from Frye Rule to a more liberal rule that admitted that there isn’t often just one valid theory behind an occurrence. Judge can determine if theory of expert witness of evidence is sound or just plain crazy when determining what to admit.

Daubert v Merrell Dow Pharmaceuticals p 330 -Replaced Frye Rule with Fed Rules of Evidence.

B. Alternative Liability

Summers v Tice (hunting accident with 2 shooters) California, 1948 Facts: Three dudes where hunting, put themselves in triangle formation and shot bird shot during the hunt. The π was hit in the face with bird shot by one or both of the other hunters. Π sued both. PP: Trial court found Δs negligent for shooting in π ’s direction. Δ’s appealed saying π had to prove which one them shot him. Issues: Rules: Alternative Liability and Res Ipsa Loquitur; cites Ybarra. If a party cannot show which of 2 or more parties caused injury, burden of proof can shift to Δ to prove their non-negligence. Holding: Affirmed for π . Reasoning: Court shifts burden of proof to the Δ’s due to the circumstances (information forcing). They were both negligent in their actions and they each are responsible for absolving themselves. They are in

57 better position to offer evidence. Cited Ybarra v Spangard (case with patient who sued all doctors and nurses for injuries to him when he was unconscious) Class Notes: -counter POE ruling. Imposes new sort of liability. -Summers’ Rule—50% probability that Δ caused harm is enough. Not error minimizing—more of a tie. It splits the difference where using POE would be against the interests of justice, esp. in cases where it is either one is responsible or the other—each with a equal probability of guilt. Joint/ several liability. -Expected error rate for use of POE and Joint Several Liability rule comes out to the same.

Kingston v Chicago (2 fires one caused by Δ destroy property, liability) Wisconsin, 1927 Facts: Δ’s train started a fire on the NE side f π ’s lumber yard and a fire of unknown origin started in NW corner. Fires merged and destroyed property. Π sues for damages PP: Ruling for π Issues: Does the π who is responsible for one fire escape liability because of the second fire’s (of unknown and likely human origin) role in destroying the lumber yard? Rules: Where one who has suffered damage by fire proves the origin of a fire and the course of that fire up to the point of the destruction of his property, one has established liability on the part of the originator of the fire. Holding: Affirmed Reasoning: (Rylands v Fletcher) Δ was cause of one of the fires and has the burden of proof to show that by reason of the joining of the 2nd fire to his, he was not the proximate causes of the π ’s injury. Class Notes and Handout (see chalk for blank one): -differs from Summers v Tice in that one fire had an unknown cause and could have been natural or caused by another unknown person. Alternative (joint) liability rule of Summers doesn’t quite work in this case -What if one of the fires was natural? Then there would be zero damage incrementally. General rule is that you pay for the harm you caused. You count the increments of the harm you caused. Takes into account circumstances of the victim and also other things that may have impacted the accident/act that caused the harm. -What if, as in the case, the 2nd fire is caused by an unknown person? -What rule would be better for deterring people from smoking in bed—negligence or strict liability? Both deter equally. -Old English law dealt with all fires as a matter of strict liability. Lacked forensic skills to determine origins. -Criminal law analogue of arson Arzon case?

General Class Notes 1/13/06: -Joint and Several Liability (JSL)—Summers v Tice—can sue both people who are most likely (either or) cause of harm—they are jointly liable. -JSL rule applies either where the parties acted in concert (ie same hunting party) or either one alone could have caused the entire harm, even if they weren’t working together or knew each other. Doesn’t apply when parties are not equally likely to have caused the harm or were not working in concert. -Imagine a comparative negligence case where you are 14% responsible and doctor is 86% responsible. What happens if either of you have no moola—are judgment proof? Could the π go to you the pay all of it if you are the one with the moola? -What if in above hypo the π was 33% responsible and you and the doc were each 33% responsible? The doc is broke poor. Who pays? (1)You and the victim both pay—π collects 50% from you, (2)Victim gets 2/3 from you (you cover slack of the broke doc) (3) tough cookies for the victim—only gets 33% from you. The general rule is option 2—the other Δ has to pay share of judgment of the judgment proof party. One impact of this rule is that business don’t like to do business with others on the brink of insolvency should they be left holding the bag in a law suit. 58 General Notes on Handout 2—Contribution, ASL and Apportionment: -

Restatement 2nd of Torts §433. Apportionment of Harm to Causes

§433B. Burden of Proof

Litzman v Humboldt County (firework/bomb blows off little boy’s hand) California Court of Appeals, 1954 Facts: Boy found what he thought was a flare at the County Fair. Was an aerial bomb and blew off his hand. There were 2 companies with such devices at the fair, each unrelated to the other. Π sues both for negligence. Π also made case of strict liability PP: Trial court instructed jury that if it couldn’t determine which one was guilty, to exonerate both. Π appealed citing jury instructions and Ybarra’s Res Ipsa Loquitur and Summers’ Alternative Liability doctrines. Issues: Rules: Holding: Reasoning: Court thought that matter of guilt was not just one of probability. Discusses Ybarra and Summers Class Notes:

Sindell v Abbott Labs (birth defects and drug manufacturers) California, 1980 Facts: Woman injured due to drug taken by mother during pregnancy later known to cause cancer in daughters of women. Many cases of birth defects as millions took drug. Π can’t id particular manufacturer and relies on Ybarra to sue many manufacturers. A class action suit. Drug Companies argue she must prove who made it. PP: Trial court for drug companies. Π appeals. Δ says Ybarra-Summers allows burden shifting only when π can prove Δ’s have better access to info. Π argues opposite Issues: Rules: Modified alternative liability—Market share liability rule. People pay according to % or marketshare that they had for product that caused injury. In other words—pay according to % of risk they contributed Holding: Reversed for π . Reasoning: Ybarra-Summers. Court thinks π is correct in that you don’t have to prove Δ’s have better access to info in order to shift the burden. Summers says that ordinarily Δ’s have better access, but facts of Summers preclude this—ie not a necessary element of res ipsa loquitor or alternative liability. It was impossible to know but court in Summers still allows burden shifting. Court thinks it is impossible to prove who made the particular medication she took and who didn’t, only that all Δ used same formula. Court says a modified Summers rule is needed in the interest of justice and to keep pace with modern times. Dissent: Troubled by “deep pocket” logic of the court. Feel that it favors the rich over the poor and deciding cases based on ability to pay is dangerous and unjust. Class Notes: -Rule makes sure that Δ’s pay what they owe but takes out the face-to-face matched up retribution side of justice. A novel idea for law.

59 -Sindell not clear if Δ who had 75% of the market pays 75% of the judgment or 100%. This gets cleared up later. -Sindell’s market-share liability rule is an error minimizing rule. POE no-recovery rule has a higher error rate than market-share liability rule. -Sindell not accepted by all jurisdictions as a good rule.

General Class Notes—1/12/06 -Probabilistic Recovery—pay according to % of harm likely. (Similar to market share liability—Snidell) -POE Recovery—all if 51% or more probability of harm or none if 50% or less of harm -Court chooses btwn rules based on circumstances of the case -Predictive or shadow law rule on choosing btwn them—more likely law would switch to probabilistic rule when the evidence is sound (mortality tables in hospital suits) rather than speculative evidence (lawyer malpractice suits) -Create list of information forcing cases -The Ybarra decision itself is generally regarded as bad law. But the rule it sets and its application as an information forcing rule is considered good law—but the court never posed it as information forcing.

Sanderson v International Flavors and Fragrances, Inc. (perfume co. Sindell follow up) Facts: PP: Issues: Rules: Holding: Reasoning: Class Notes

Skipworth (lead poisoning case as famous Sindell followup)—not in book Smith v Cutter Biological, Inc. (blood products Sindell followup) Facts: Man receives blood from hospital and contracts HIV from the blood. He can’t identify which blood lot it was taken from, but hospital at the time used 4 blood manufacturers. PP: Issues: Rules: Holding: Reasoning: Class Notes

Tomorrow—in auditorium again. Do new handout; look at first few proximate cause cases—pg 150-2 Next week—work on the handout—he’ll call on you!! Read the chapter—Polimuss—351(or 41) read first two or three cases. No class on Thursday.

General Class Notes: -Joint and Several Liability (JSL): Problems arise if one of the Δ’s is poor or judgment proof, issues of settling, missing Δ’s, if Δ’s acted in concert or separately. - Comparative Negligence Can sue multiple Δ’s who did not act in concert but that the π connects in a chain of occurrences where each party’s action or inaction could have contributed. Jury decides apportionment of blame (culpability). In many jurisdictions, there is majority rule where when one party is judgment proof, other party has to pick of the slack, even if their portion of the blame is substantially smaller than the insolvent party. 60 -whipsaw: to be forced into a bad bargain -States can have both contribution rule and the good faith rule. (see handout); you can still settle in the shadow of a contribution rule. -Fancy rules only kick in with a trial. Parties can settle for whatever they want, even if the π over-recovers. -we take victim as we find them, but do we take the circumstances as we find them as well? -Re-read last few pages of chapter 5 and take notes on contributions and apportionment

VI. Chapter 6: Proximate Causation General Class Notes on Proximate Causation: -Law has the sense that one action does have outward impacts that seem distant from that act (like throwing a stone in a pond); general attitude is that we can’t connect pebble in pond to every ripple or nearly disconnected act. Law draws a line to limit what the pebble can be said to have caused—everything within the limits is proximate cause, all outside of it may be considered but-for causation or approximate. - A. Remoteness and Foreseeability

Polemis (1921) (Boat destroyed when gas fumes ignited by falling boards) Facts: Gasoline is being transported by ship and there is a slight leak. Crew sets up boards over gap above hull for loading, boards fall, igniting fumes and destroying the ship. Δ argues that the causing of the spark couldn’t reasonably be expected from the falling boards and they aren’t liable. PP: Arbitrators found that spark was caused by the falling board which was caused by negligence. Issues: Rules: -Consequences that may be reasonably expected from an act are material only in relation to the question of if the act is negligent or not. Holding: Reasoning: Reasonable expectation from the act was immaterial as act was result of negligence and the damage a direct result of that negligence. Class Notes: -Negligence case would be easy if plank fell killing dude below deck. Even if plank fell causing harm to something off of the ship—issue of direct/ indirect and foreseeability issues. Case deals with whether we should use direct cause as the standard or foreseeability as the standard. -

Overseas Tankship LTD v Mort’s Dock & Engineering Co. (oil spill causes huge fire) 1961 Facts: Δ spilt some oil on the water at a dock causing some initial minimal damage. They sailed off leaving oil. Later, π, who saw oil on the water and the dock, working at the dock dropped molten metal on a rag on the water that lit the oil, causing great damage to the dock and neighboring boats. PP: Issues: Rules: Polemis ruled as bad law—unjust. Reasonable man foresseability set as rule for negligence liability over Polemis rule of damage as direct result of act. Holding: Dismissed. Reasoning: Δ’s couldn’t have known that oil could be set afire on water. Class Notes -π had motive not to press forseeability as they could be held contributorily negligent for continuing to weld and work near the oil and would have collected nada. -case more remote than Polemis. -Court rules differently in proximate cause rule in Mort’s dock than in Miller Steamship. Court a=nd turn on adverse possession like a spigot. 61 Overseas Tankship v The Miller Steamship Co. (Round II w/ Different Foresseability Rule) 1967 Facts: Neighboring ship owner near Mort’s dock sued for same action. PP: Trial court for Δ. Issues: foreseeabilty and negligence; reasonable man Rules: Holding: Reversed for the π Reasoning: It was foreseeable by the reasonable man that oil on water can catch fire, even if it is not likely to, as it has done in the past and that it would take a great amt of time for that amt of oil to leak and the ship engineer should have seen or noticed and taken action. Class Notes: -Who else could have The Miller Steamship Co sued? Parties responsible for clean up, wharf designer, Mort’s Dock worker for welding. But, they didn’t have comparative negligence at that time.

For Friday Read—Price and Hinds (pg 361-2, notes on 364-5, Brauer on 368 and Watson on 369, 371- 377); To Read Ahead: Economic Loss—pg 277-288, Emotional Loss next Go back and brief C. Limitations of Duty

Palsfragt v Long Island RR (railcar pushers) p377 brief this case--important New York, 1928 Facts: PP: Issues: Rules: Holding: Reasoning: Class Notes: --see pg 379 line 10 “The wrongdoer to them is the one who carries the bomb and not the one who explodes it without suspicion of danger.”

Facts: PP: Issues: Rules: Holding: Reasoning: Class Notes:

General Notes: 1/24/06 -Price (assault)/ Hinds (hotel kerosene lamp fire) Distinction: Two cases with trains who drop people off at the wrong stop. Liability when the person who got off was assaulted walking at night back to his stop; no liability when the woman was burned due to a hotel fire—too remote, easily could have happened anywhere even w/o railroad company’s interference -Brauer Case (train cross grade collision) g 368: Increased/ Incremental risk, multiple wrongdoers—don’t get hung up on that; think about opinion as courts in political context where they leave room for the courts to act.

E. The Privity Limitation 62 H.R. Moch Co. v Rensselaer Water Co. (sues water co. for failure to provide enough water to stop fire) New York, 1928 Facts: City contracts with water company to provide water for the fire hydrants and public buildings and to contract individually with residents to provide water based on a fee time table. A fire breaks out in π ’s factory and the firedepartment has trouble putting out the fire in a timely fashion due to lack of water and water pressure. Π sues the water company to recover damages under theory that their loss was amplified due to the water company’s negligence in providing adequate water and pressure. PP: Issues: Rules: Holding: No liability. Reasoning: Class Notes: -The city could have been sued under idea of respondeat superior (vicarious liability) if they advanced idea that water company was acting as agent of the city (however, would the water company be an independent contractor or not?) -Cardozo stretches privity to closeness not just to idea of duty

Glanzer v Shepard (bean weigher dispute) New York, 1922 Facts: Bean seller hires Δ to weigh 905 bags of bands. Π , buys beans according to price based on weight certified by the Δ. On resell, π found the beans weighed less. Π sues Δ to recover difference based on amt certified by Δ. PP: Directed verdict for π . Rules: Holding: Affirmed for the π . Reasoning: π ’s use of the certificates (proving weight) was not an indirect or collateral consequence of the actions of the weighers, but was the end aim of the transaction and of the weigher’s knowledge. Class Notes: -Privity kicks in. The buyer is closest to the transaction who would require accuracy.

Food Pageant v Consolidated Edison (store looted during blackout and sues power company) New York, 1981 Facts: PP: Issues: Rules: Holding: Reasoning: Class Notes:

Conboy v Mogeloff (patient blacksout while driving sues doctor) New York Court of Appeals, 1991 Facts: Woman goes to doctor for migrane and other ailments and is prescribed medicine that has side effect of causing blackouts. Doc tells her it is ok to drive. Π drives, has a blackout and crashes car. She sues doctor to recover for injury to her kids. PP: Issues: 63 Rules: Holding: For the Δ Reasoning: Doctor had no duty to the woman’s children, only to her. To establish a duty to a 3rd party, the court requires actual privity or something approaching it “such as conduct on the part of the Δ linking the Δ to π that envinces Δ’s understanding of the π ’s reliance.” Class Notes:

Biakanja v Irving (notary public makes error costing woman her inheritance) California, 1958 Facts: π ’s brother dies and bequeathed his entire estate to his sister in a will. The will, prepared by the Δ who was a notorary public, was not signed in the presence of a witness, was later declared invalid when challenged by the deceased’s stepson. Δ told lawyer stepson that no witness was required b/c it was notorized. Π only received 8th of estate and sues Δ for the difference. PP: For the π . Δ appealed Issues: Was the Δ under a duty to exercise due care to protect π from injury and he is liable for damage due to his negligence even though they were not in privity of contract? Rules: Court cites many factors that impact decision: extent that transaction was intended for π , foreseeability of harm, degree of certainty that π suffered harm, closeness of connection btwn π ’s injury and Δ’s actions, moral blame attached to Δ’s conduct and policy of preventing future harm. Holding: For the π . Reasoning: Court cites Glanzer saying the aim of the transaction was to provide he passing of the estate to π . Δ was aware of the terms of the will and knew hat should she will be invalid, π would suffer loss. But for Δ’s negligence, π would have received all of the estate. Π ’s loss was direct cause of Δ’s actions. Class Notes: -Primary deterrence drives the court—applying liability here is only way to prevent future harm

Ultramares Corp v. Touche (client lies and fools accountants during audit to get loan when he is insolvent) New York, 1931 Facts: A company hired the Δ’s to conduct an audit to certify the state of his business. The company used there product to get a loan, when they were really insolvent. The π , relying on the certification of the Δ, fives a loan to the company only to later discover that the company was insolvent. PP: Issues: Rules: Holding: Reasoning: Class Notes:

Einhorn v Seeley (locksmith case) review New York Court of Appeals, 1988 Facts: PP: Issues: Rules: Holding: Reasoning: Class Notes:

64 F. Economic Loss—Brief cases—notes in book General Class Notes -Began with Robins Drydock case; general/ doctrinal rule is that no recovery for economic loss. Ie: If only harm caused is of an economic and later an emotional nature, then no recovery—must be physical or property harm to connect to economic or emotional recovery—ie. missed work. But, even then recovery has limits—employer can’t recover for hiring a replacement for you while you were out with a broken leg. -Similar to contracts. -Robins Drydock: Set general rule of no recovery for economic loss. One economics argument about this (Goldberg—Robins Drydock law review article)—whatever loss is caused by the dropped propeller, there is a whole market out there for π to turn to to mitigate cost. The best estimate of the damage is the cost of replacing the propeller—this economic argument is debated; some say it doesn’t take the entire market into account and the market is sort of crude—have to know all possible people who could replace propeller (Like contracts case involving contract dispute with supplier of part needed to fulfill Navy contract—look up) -People’s Express: If the court had decided no liability, would the Δ still be deterred from acting negligently? Perhaps. In this particular instance no, in the grand scheme of things yes—they’d take care in future situations realizing they were pretty lucky this time. Perhaps way to explain different application of the economic loss ground rule than in the Finlandia case is that the court in People’s is looking at getting justice for the π . -Fisherman cases—turn on the fact that the primary thing that goes wrong doesn’t lead to recovery. The real loss comes from the loss in wages to the fisherman (not repair of the nets or boats). -Economic loss is actually recoverable in many cases when the argument that there is no offset in likelihood of deterrence of economic gain in another.

General Class Notes 1/25-26/06: -primary deterrence—as in the telephone case. Perhaps court rules for liability as a method of deterrence. Unlikely that their negligent installation of the pole would injure a person, so hold liable whenever falling pole causes injury in order to deter. It’s one way of looking at it. -Emotional Loss—Father Cases: Perhaps what constrains them is not the matter of nearness or foreseeability but the court’s concern about flooding the courts or creating a flood of possible π ’s (ie. TV case could produce multiple claims, some possibly false, no way to prove it)

-Primary Deterrence—sometimes lack of primary deterrence if no recovery leads court to find for liability. -Of there is primary deterrence, then perhaps the Neptune (social cost offset idea) kicks in. Other social gains may off set the π ’s loss. -If there is no primary deterrence, court likely to give recovery for emotional loss. I.e. no other way to deter negligent behavior (telephone pole case for example) -

Next Class: Thursday 11am in Room II, doing Privity cases and prepare for product liability read note case on pg 409 the bottom and review Rylands v Fletcher; Friday—Focus on Rylands and case note on pg 409. Read first case in Products Liability section. Ahead—Product Liability section

H. Privity (Fill in these briefs!!!!!)

Chapter 8: Products Liability pg 447

A. Historical Development

Rylands v Fletcher Revisited: 65 Class Notes: -build up to products liability. Laid the foundation for products liability suits and strict liability system -Category of rules from Rylands v Fletchers:  Strict liability for use of another’s property—ie. using a dock in the storm, you may have privilege due to circumstances but you pay for use of another’s property  Information Forcing Rules—case of the mink rancher where the mother minks ate the young when frightened by nearby blasts. Eventhough blaster lost, he did not have to pay. Forced mink rancher to work with blasters  General Class Notes on Historical Development—1/31/06: -Origins of privity. - MacPherson v Buick Motor Co. Facts: PP: Issue: Rule: Holding: Reasoning: Class Notes: - Old privity rule rested on the idea that most of what went wrong with food or the product came from the store or restaurant that dealt with you. In principle, if the problem originated with the manufacturer or farmer, you’d sue the restaurant and the restaurant would sue his vendor. Possible chain of suits. So, you’d sue the dealer who’d sue Buick, who may sue the vendor if he knew he wasn’t liable, who may sue their vendor and possibly the shipper etc. So, Cardozo thought that rather then making the dealer the center of the lawsuit, you make the manufacturer/ assembler, Buick, the center of the lawsuit as they have more direct contracts with the parties who could have been responsible and they had primary duty to inspect the product. -Cardozo: Got rid of the privity rule. Sue manufacturer b/c they are best party for suit. But, doesn’t get rid of the dealer as a possible Δ. Is a step up from rule that only let you sue K-mart for poison peanuts and no Planters. Less likely to be insolvent—one bid defendant who is easy to id—biggest contribution of this case. - Would have been cool if rule was made where you couldn’t sue the dealer but could only sue the manufacturer at the exclusion of all others for strict liability. -Major advantage of focusing on one party: Not sure where the wrong is coming from, so 2 approaches. Find all possible parties and hold them partly liable or pick one party that has the contractual connections and hold them liable (will bring other parties in). Picking one central party (special relationship/ or who is in privity with others) avoids over (duplicate) precaution or no one taking precautions (everyone passes the buck thinking other dude has it under control). -Privity may have been a good idea in that it finds a single best problem solver (the one most likely liable of who can find the ones liable). But, in a mass production society, only being able to sue the dealer/ seller, who is more divorced from the product, is not the best system.

Tomorrow—Read Escola and cases afterward --defect cases up through Welge pg 464 General Class Notes 2/1/06: -Privity doctrine served function of finding one single best problem solver. Was called “the least cost avoider” by some. Don’t call it this. Really about the best party organized to solve the collective organizing problem—the focal point or hub. -Ie. In MacPhearson v Buick, Buick is the focal point 66 -2 general approaches to law: 1)Sprinkled (Alternative) liability (Summers v Tice on steroids) or 2) Single best problem solver approach –if they aren’t really the source, they bring suit against responsible party (most likely to know who the responsible party is) -MacPhearson—throws out concept of duty as specifically defined in scope and substitutes for a general sense of duty.

Escola v Coca Cola Bottling Company (exploding coke bottle) Facts: Waitress handling bottle of coke is injured when bottle explodes in her hand. Sues Coke for negligence citing excessive pressure and/or faulty bottle as source of her injury. PP: Issue: Rule: Holding: For the π . Reasoning: Res ipsa loquitor applied. Strict liability. Class Notes:

Greeman v. Yuba Power Products Inc. (defective drill gizmo: prod. liability as tort not contract issue) Facts: PP: Issue: Rule: Holding: Reasoning: Class Notes: -Case really about distinctions btwn contracts and torts. Torts dominate over the contract.

Welge v Planters Lifesavers Co. (exploding peanut jar) Facts: PP: Issue: Rule: Holding: Reasoning: Class Notes: -sues three parties—K-Mart who sold the nuts, Planters who made the nuts and the bottling company who made the bottle -One way out of strict liability for Planters—Maybe preponderance of the evidence rule saying that K- Mart’s mishandling/ negligence is the cause of the exploding bottle. Basically shifts the burden—Planters has burden to show that they weren’t negligent---strict liability gives them this incentive to show this - Winter v GP Putnam (poison mushrooms) Facts: PP: Issue: Rule: Holding: Reasoning: Class Notes:

67 Saloomey v Jeppesen (defective map book) Facts: PP: Issue: Rule: Holding: Reasoning: Class Notes: -good law -what makes the map book case different from the mushroom case? The court sees that map book as a product and the mushroom as a book—not a product product. -imposing liability on the mushroom book may squelch the mushroom book market while imposing liability on the map book won’t stomp the map book market. -Why not a first amendment argument? Maps aren’t free speech but mushroom books are. Courts can make constitution, that applied to gov’t actions, apply to private citizens as well. Ie. anti-slavery.

For tomorrow—read rest of the chapter (design defects 477-493) General Class Notes 2/2/06: -Product liability as build up to informational laws—disclosures and warnings

Read—pages 471-476 Magrine v Krasnica (defective dental needle) Facts: Dentist uses hypodermic needle. It breaks off in the patient’s gum (ewwwww) Holding: Not liable Reasoning: Class Notes: -Dentist is just using the needle—not holding for resale -lead up to prosthetic cases with hospital -Keep this case and doctrine in mind

Newmark v Gimbels (perm mishap) Facts: Holding: Not liable Reasoning: Class Notes: -Saloon owner is like a retailer—is reselling the perm solution

Keen v. Dominick’s Finer Food Facts: Shopper is shopping when cart inexplicably tips over. She washurt when she tried to stop it from falling and sued the store on the theory of strict products liability, claiming the cart was defective. Class Notes: She could have sued the store saying they should have bought a better cart or the manufacturer saying he built a defective cart. -No liability—Dominick’s wasn’t selling shopping carts.

Peterson v. Lou Bachrodt Chevrolet Co. Facts: π’ decedant was killed when run over by a used car purchased form Δ. Sued under products liability saying car was defective due to brakes. Class Notes: -No liability—Unclear when brakes became defective.

68 Nutting v. Ford Motor Co. Facts: π bought a used car from Hewlett Packer. Car stalled on highway and she sued HP on products liability. Class Notes: -HP had duty to inspect. Were taking place of a car dealer and were in position to inspect. Were single best problem solver.

Mexacali Rose v Superior Court (defective enchilada) Facts: PP: Issue: Rule: Holding: Reasoning: Class Notes:

B. Design Defects General Class Notes: -Read pg 460 §402a (2nd Restatement), §1 and §2 (3rd Restatement)—on Product Liability -design defect is a negligence rule.

Dawson v. Chrysler Corp. 3rd Circuit 1980 Facts: π gets into an accident where he runs into a pole. Car wraps around pole and pole enters car pinning him to the dashboard making him a quadriplegic. He sues saying that Chrysler designed a defective car b/c they should have had a rigid steel frame bar to prevent the car from crumpling as it did. Δ says that it wasn’t a design defect and they meet federal guidelines—was designed to crumple based on another case where they were sued b/c the car was too rigid. PP: Jury finds for the π to the tune of $2million. Δ appeals—says other states say car needs to crumple to absorb impact and that is why they built it that way. Issue: Can the jury be allowed to find that the patrol car was defective under NJ law? Rule: Risk/ Utility Test; Factor Balancing Test Holding: Reasoning: π had an expert witness and evidence was sufficient enough for them to come to the conclusion that they did. Class Notes: -design defects cases can be inconsistent and sometimes manufacturers are made to be insurers, especially since they are jury cases.

General Class Notes 2/3/06: -On inconsistent rulings in crashworthy car tests -Why don’t we find laws that set the standard for manufacturing of cars or regulating cigarettes that acts as both a sword (damned if you don’t—liable) and a shield (great if you do—not liable)?  Statute may stifle innovation and improvement—but statute could make room for this or defenses based on improvements and innovation  Concern over interest groups having too much input in the statute

Blakenship v. General Motors Corp. (WVa. Crashworthy explanation) Facts: 69 PP: Issue: Rule: Holding: Reasoning: WVa is a very small state and all the other states have held car manufacturers liable making them insurers of their customers. Why shouldn’t WVa residents have to subsidize injured rather than taking advantage of the fact that the car manufacturers already insure. Class Notes:

Bruce v. Martin-Marietta, Corp (1952 Plane Crash and π wants 1970 airplane seats)--Retroactivity Facts: airplane crashes and seats come loose injuring and killing several people. Plane built in 1952. π ’s sued on behalf of dead relatives saying the plane was defective because plains built in 1970 now have improved seats and if the seats in the plane were built to those standards they would not have been injured. PP: Summary judgment to Δ Issue: Retroactivity—Should we have retroactive liability? Rule: Holding: Affirmed—No liabilty Reasoning: No one would expect a Model T to have same standards as a modern car. Dissent: Class Notes: -Why would you want retroactive liability?  Perhaps to encourage manufacturers to upgrade to keep pace with standards—but would you sue the manufacturer or the owner of the plane? Should the manufacturer really be held responsible for upgrades of planes they have previously sold? One impact would be increase in price of the good to cover future upgrades. People would be locked into having to upgrade car and keeping that car  Perhaps lock manufacturers into offering upgrades at an additional cost—they would be optional. Usually this would be a case of no liability. One exception is the case of glass shower doors. But liability was not against the manufacturer for injuries sustained by broken shower doors but against the landlord—landlord is best problem solver.  Hypo—smoke alarms and housing insurance. Does homeowner pay or old owner? The homeowner. He can even be compensated by lower insurance rates. What about suing for compensation? Nope.  Retroactive liability is not so uncommon—it happens all the time.  What about reparations and making a notorious past discriminator pay now towards a fund for actions they did in the past? o Perhaps to encourage them to do better than the minimum—look towards the future o Act on what they think future norms or standards will be. o Perhaps it is valid—think about car makers—know that air bags are safer and can predict they will be the norm, would be an incentive to accelerate the new safety technology. See Legal Transitions literature. o Logic encourages progressivism—to be right more quickly. But, perhaps they would also be encouraged to stall progress or introduce grandfathering legislation—not liable for past acts. o For application of hypo to manufacturers—it assumes that manufacturers have control of the technology o But, business always looks ahead to what future norms and wants will be. Otherwise, they wouldn’t build factories or businesses. Why not also look ahead to future social norms as

70 well even in order to cut down their own costs—ie upgrading drastically to meet legislation requiring more accessible workplaces.

Lewis v. Coffing Hoist Division, Duff-Norton Co. (hoist machinery mishap) Facts: PP: Issue: Rule: Holding: Reasoning: Class Notes:

Dreisonstok v. Volkwagenwerk AG (VW crushmobile va) Facts: PP: Issue: Rule: Open and Obvious Test Holding: Reasoning: Class Notes:

McCarthy v Olin Corp (vicious bullet case) Facts: A man opens fire in a crowded subway using black talon bullets that were manufactured to explode on impact and have jagged edges to cause maximum damage to internal organs and tissues increasing the rate of mortality. Several people are seriously injured and killed. Black Talon bullets had been pulled from the public years ago, but the crazed man had stockpiled him. Relatives of the deaceased argued that the product was defective and overly dangerous. PP: Issue: Rule: Holding: Reasoning: Issue of inherently dangerous products that by the nature of their intended use are dangerous (like knives). Such items aren’t defective. (harvest notes) Dissent:

Price v Blaine Kern Arista, Inc. (Bush mask brings stiff neck) Facts: Man has oversized Bush mask at a casino. Someone gets mad and pushes him from behind. The weight of the mask injures his neck. Price sues the manufacturer saying the mask was defective as it was too heavy. PP: Issue: Rule: Forseeability of Risk Test Holding: Reasoning: court thought it should have been foreseeable that political satire masks may cause people to be angry and that wearers of the masks would be jostled from time to time.

Rodriguez v Glock, Inc. (fight for gun causes accident) Facts: Rodriguez gets in a tussle with a man and they struggle for a gun in his pocket. The gun goes off killing Rodriguez. His estates sues Glock saying the gun was defective as it did not have a safety. 71 PP: Issue: Rule: Forseeability of Risk Test Holding: Reasoning:

C. Failure to Warn—fill in briefs

General Class Notes 2/7/06: -If you don’t allow seller to conceal knowledge about oil or the mechanic to control knowledge, then you discourage sellers and mechanics. -Net loss theory—viewing failure to warn cases from the theory of less to parties and society. Disclosure necessary in cases where loss could be mitigated by such disclosure

American Tobacco Co. v Grinnel (tobacco lung cancer case) Facts: Grinnel, π , smoked since he was young and developed cancer. He sued saying that the Δ failed to warn him of the harmful effects of cigarettes. Δ claimed that he had to prove the cigarettes were so dangerous one would not buy if he was warned and the products was defective. PP: Issue: Rule: Holding: L Reasoning: -Courts would have made Grinnel make a negligence claim: ie. cigarettes were so dangerous to be defective, that they were negligently designed or that there needed to be a warning and if such existed he would not buy and would have avoided it. -What would the net loss be in the Grinnel case? The number of lives saved if the warning had existed (or the number lost if there was no warning). -One drawback of disclosure is disincentive for manufacturers to discover harmful affects of its products.

Hypotheticals: -What about a person with peanut allergies. The lowest cost avoider is the person with the allergy who has the duty to inquire about contents of food and avoid peanuts. Are warnings on candy bars that they may contain peanuts over disclosure or overly careful, especially when the chance that peanut was in the candy bar a minimal? Yes, they are overly cautious and overly pessimistic. Driven by chance of litigation. They are overly risk averse as there is no way to recoup the value of the information given. -Disclosure rule encourages overly risk averse action -There is no restitution claim available—compensation for giving out extra information.

Brown v McDonald’s Corp (hamburger with seaweed in it) Facts: Brown eats a hamburger and has allergies to seafood products. Unbeknownst to him, the hamburger has a seaweed byproduct in it. He became really ill and required hospital treatment. He sues McDonald’s under failure to warn. Δ argued that they have flyers with ingredients on it as they don’t rely on their workers to be accurate also the sandwich was not harmful to ordinary customer and thus they had no duty to warn. PP: Trial court gave summary judgment to McDonalds Holding: Reversed for the π —no summary judgment Reasoning: state statute only asks if the manufacturer exercising reasonable care would warn of the risk in light of the likelihood and the seriousness of the potential harm. If the π ’s harm was unusual or not would be one factor---for a jury to decide. 72 Class notes:

Brooks v Medtronic Inc. (risky pace maker and who is best party to disclose to) Facts: PP: Issue: Rule: Reasoning: Holding: Class Notes: -Rule has become that when pharmaceuticals and medical manufacturers begin to directly market to the customer, they have a duty to disclose directly to the consumer.

McMahon v Bunn-o-matic Corp (coffee is much too hot) Facts: Woman gets hot coffee and spills it over her lap when pouring it into another container, suffering bad burns. She sues the Δ saying that the coffee was too hot and they should have warned her to take care. PP: Issue: What makes the product defective? Rule: Reasoning: Holding: Class Notes: -It is not obvious that coffee being really hot means it is defective

IX. Chapter 9: Damages

A. Compensatory Damages

General Notes: -Damages is the 2nd half of the trial—ok, there is liability. Now, how much to you get? -Economic and emotional losses are a part of damages -sometimes punitive damages are seen as pain and suffering damages. Punitive damages aren’t a good method of deterrence. -We expect punitive damages in cases of in-your-face outrageous torts, like someone climbing over two rows of people to punch you in the face in front of hundreds of people. Almost makes the tort like a crime. -Off set rule of interest—Alaskan rule to offset inflation -Old ancient rule—no prejudgment interest in damages suits -Now there is a movement toward pre-judgment interest. But, the rule now is for post-judgment interest. -States are moving toward prejudgment interest—pay interest on damages from the time of the accident -What about taxes calculated into judgment. Congress says that money you get from damages for lost wages is tax free. Now juries are instructed that awards are tax free so they can compensate and lower award---this sort of subverts Congresses’ subsidy to parties receive damages. -What about settlements?—have to demonstrate what portion is for lost wages and which one isn’t. -Payments made by companies are tax deductible unless they are for statutory violations—done to encourage fair bargaining -Caps on damages—

Reading: 73 Punitive damages; do worksheet No class Friday!! The Peasants Rejoice!!!! Next week---defenses—contributory negligence and primary assumption of risk—read up to p602

General Notes: -most insurers have clause where you can’t get double recovery (from them and the insurer) but courts say you can’t take that insurance into account when determining compensation -After WTC events, many people could have filed law suits. Against who? Airline, WTC owners, originating airports etc. -Uninsured motorists and those w/o license often more reckless in driving. Large numbers of uninsured drivers sometimes frustrate the insurance system. -What about an at the pump systems of insurance payment where you pay a little bit toward insurance each time you fill up?

Legal Fee Rules and Settlements Worksheet: -there is a rule against purchasing the tort claim—ie. Deal with lawyer to take your case for 80% contingency -arbitration could overcome the American rule’s no high settlement as parties could agree to share costs or have cost shifting under the British rule, where the possible cost to parties would be less (?) -Every country that has the British feature bans contingency fees. Perhaps the two are connected, if you have fee shifting and contingency fees, then it is much riskier to be the lawyer—they would demand higher cuts which would amount to selling the lawsuit.

B. Punitive Damages (Harvest from Book this weekend) Tomorrow reading—go into express assumption of risk, Next read chapter on nuisance.—pg741, read article mentioned at end of reading

General Class Notes 2/14/06: -The cases were punitive damages will be most likely awarded is where the Δ is seen as acting with unusual malice. It becomes close to criminal law. -Procedural due process—protected under the constitution. Judges often looked to this clause to make substantive claims (ie, right to privacy means etc). -Occasionally courts and citizens would be outraged by enormous settlements (see BMW on p561 case). -Hypothetical:  Bus and train collide. Π suffers $100 in injuries. Who is the lowest cost avoider, the bus or the train? o Bus—$40, Train—$70 to avoid accident o Bus _+ Train= 11 + 4 (joint care) o What ratio of payment? 4:11—train: bus; 11:4; 70:40 ??; 1:1 (even split) o Murphy v Hobbs Facts: PP: Issue: Rule: Holding: Reasoning: 74 Class Notes:

Kemezy v Peters Facts: PP: Issue: Rule: Holding: Reasoning: π doesn’t have to bring in evidence of wealth or income of the Δ. Class Notes: -Re-read this opinion as it is important.

McIntyre v Balentine (the speeder and the drunk) Facts: PP: Issue: Rule: Holding: Reasoning: Class Notes:

In re Exxon Valdez pg560

Facts: PP: Issue: Rule: Holding: Reasoning: Class Notes:

X. Chapter 10: Defenses

A. Contributory and Comparative Negligence (Harvest from Book)

General Class Notes—2/15/06: -Contributory negligence—began to loose favor in 1930-80’s—people moved to comparative negligence (your contribution to injury is not a complete bar to recovery—divvy up damages based on % of contribution). Sometimes this was done by the courts and sometimes from statute. -Comparative Negligence—has a few distinct forms of calculation:  50% or more contributory—no recovery  49% rule  Receive damages less your % of contribution -Hypothetical: -UVA frat prank—tie a kid to the train track and then wave down the train to make them stop. Occcasionally a kid would get killed as train wouldn’t stop in time. Happens every Saturday night. Train goes 5 miles per hour and possibly train conductors tired of stopping—also really dangerous. What result? 75  - § 479 Last Clear Chance rule (Helpless π ): pg 569. “A plaintiff who has negligently subjected himselt to a risk of harm from the Δ’s subsequent negligence may recover for harm caused thereby if, immediately preceding the harm, (a) the π is unable to avoid it by the exercise of reasonable vigilance and care, and (b) the Δ is negligent in failing to utilize w/ reasonable care and competence his then existing opportunity to avoid the harm when he knows the π’s situation and realizes or has reason to realize the peril involved in it or would discover the situation and thus have reason to realize the peril, if he were to exercise the vigilance which it is then his duty to the π to exercise. ”  §480. Last Clear Chance (Inattentive π ): A plaintiff who, by the exercise of reasonable vigilance, could discover the danger created by the defendant's negligence in time to avoid the harm to him, can recover if, but only if, the defendant (a) knows of the plaintiff's situation, and (b) realizes or has reason to realize that the plaintiff is inattentive and therefore unlikely to discover his peril in time to avoid the harm, and (c) thereafter is negligent in failing to utilize with reasonable care and competence his then existing opportunity to avoid the harm.  Helps incentivize the train to take care and make sure that they just don’t run over kids on the tracks. Works as the opposite of the contributory negligence rule, where the railroad or train company wouldn’t have to pay at all  In cases like this, comparative negligence became attractive to the courts. Helps the deal with situations were the other party knows in advance that the other party pays and then he takes no precautions. Both parties are incentivized to take care.  -MacPherson is an example of an all or nothing rule. Find one person and make them responsible— single best problem solver. Comparative Negligence, on the other hand, spreads around liability. -Hypothetical: Case of bank robbers in a getaway car. Driver crashes and passenger, fellow bank robber sues for recovery. Result—no recovery—robbery was a serious violation and was a joint enterprise.

Harris v Meadows (bad left turn) Facts: Δdriving and goes to make a left turn that brought her car into path of π . Π blew horn ad applied breaks (slowing down but not stopping) and moved a little to the right but still hit the Δ and π was hurt. Π sues for recovery. Δ admitted negligence but argued that π was contributorily negligent. PP: Jury found for Δ Rule: Contributory negligence Holding: affirmed Reasoning: Evidence was sufficient for jury to conclude that π was guilty of contributory negligence in failing to act reasonably to avoid the collision. Class Notes:

Alibrandi v Helmsley (truck driver falls down ramp) Facts: π was a truck driver making delivery. Instead of waiting for a loading dock to become available, he went and got a boxes himself using a cart and walked down a ramp backwards pulling it. Ramp has loose board and he tripped injuring himself. Π sues for recovery PP: Was tried by a judge rather than a jury. Judge denied recovery as π was contributorily negligent as a matter of law. Rule: Contributory Negligence Reasoning: Jury being sympathetic would have ignored rule of contributory negligence for a comparative negligence rule

Davies v. Mann (donkey by the highway) Facts: π left his donkey tied up to graze by the highway, his legs fettered so it couldn’t move. Δ’s wagon pulled by a team of horses ran over the donkey killing it. Π sues for recovery. 76 Rule: Last Clear Chance Rule: π can recover despite committing contributory negligence if the Δ had a sufficiently good opportunity to avoid the accident at a point where the π did not. Holding: Davies entitled to recover despite negligence in leaving donkey tied so near the road. Reasoning: Even though the donkey shouldn’t have been in the road, Δ had a duty to go along the road at a reasonable speed. Wouldn’t be excused if he ran orver a person or purposefully ran into a carriage that traveled on the wrong side of the road.

McIntyre v Balentine (drunk trucker hits speeding pickup truck) Facts: Δ’s tractor trailor crashed into McIntyre’s (π ) pcku up causing π injury. Π sued for recovery. Δ was drunk but π was also speeding. PP: Jury found them equally at fault and gave judgment to Δ under contributory negligence. Appeals court affirmed. Issue: Rule: So long as π ’s negligence remained less than the Δ’s negligence, the π may recover. In such a case the π ’s damages should be reduced in proportion to % of the total negligence attributable to the π . Holding: Reasoning: Court thinks all-or-nothing rule of contributory negligence is out moded and unjust --needs to be replaced. So they provide an alternative comparative negligence rule. Class Notes:

Comparative Negligence: Various Means of Calculating Damages Due  Recovery if π ’s negligence was less that 49% or less of the cause of injury. Then subtract the amt of harm from the damaged amt (ie. if 20% liable, reduce award by 20%)—McIntyre rile  Recovery—but reduce damages awarded by amt of harm contributed (ie. if 80% liable, reduce award by 80%)—NY law  Recovery if π negligence was not greater than Δ’s negligence and reduce damage award accordingly—Oregon law—50% rule  Recovery if negligence was not as great as Δ’s negligence—CO law—49% rule  Sandford v General Motors Corp: % of fault assigned to each party should depend on the circumstances of the case such as closeness of causal relationship btwn Δ’s conduct and π ’s injury; reasonableness in parties’ conduct in confronting risk, etc

Manning v Brown (joy ride gone wrong) Facts: Amidon and Manning steal a car that had keys in it and go for joy ride. Amidon crashes car and both are injured. Manning sued Amidon and Brown, the owner of the car. PP: Issue: Rule: Holding: Reasoning: Accident was a joint enterprise btwn Manning and Amidon and Manning shouldn’t recover from her crime. Π ’s conduct was a serious violation of law and her recovery is precluded as a matter of public policy. Class Notes:

Fritts v McKinne (malpractice or the drunk guys fault?) Facts: π sent to emergency room after getting in an accident where he was a drunk driver. During surgery, doctor makes mistake and Fritts dies. Wife sues doctor for malpractice and doctor claims defense of comparative negligence PP: 77 Issue: Rule: Holding: Reasoning: Class Notes:

Alami v Volkswagen of America Facts: π drove his car into a utility pole suffering fatal injuries. He was drunt. Widow brought suit against Volkswagen saying that the car was defective because injuries were result of defective design PP: Issue: Rule: Holding: Comparative negligence Reasoning: Class Notes:

Facts: PP: Issue: Rule: Holding: Reasoning: Class Notes:

B. Express Assumption of Risk

Van Tuyn v. Zurich American Ins. Co. (mechanical bull and ineffective release) FL Court of Appeals, 1984 Facts: π went to a club that had mechanical bull and rode the bull after signing a release she did not read that contained an exculpatory cause. The clause in the release form stated that signing it immunized club and its affiliates from any and all causes of action based on injuries from attempting to ride the bull. Π was hurt and sued for damages claiming negligence in the operator’s handling of the speed device. PP: Trial court for the Δ Holding: Reversed for the π. Reasoning: Exculpatory clause must clearly state that it released the party from liability for its OWN negligence. The release in this case did not state this and so the release doesn’t bar the π ’s cause of action. Class Notes: Shows that waivers don’t mean much—hostility to waivers. (Therefore, we pay more for products, b/c forced to buy “insurance.”)

Manning v. Brannon Oklahoma Court of Appeals, 1997 Facts: π took sky diving lessons from the Δ. He signed a release that explicitly stated that the Δ was not liable for any injury or death due to their negligence in training him, the equipment or any other such thing. Π was greatly injured while diving when parachutes malfunctioned and sued Δ. 78 PP: Trial court found parties 50% negligent and denied the Δ’s motion for judgment notwithstanding the verdict. Δ appealed Issue: Rule: Holding: Reversed for the Δ. Reasoning: Court focuses on bargaining power of the parties in judging if the release was valid. They say no disparities in bargaining power and that π was offered other options and a refund if he changed mind. Dissent: Felt that the holding subverted public policy. Felt Δ would have no incentive to avoid such a situation in the future. Class Notes:

Anderson v Erie Ry. Co. Facts: π , a clergyman, bought a ticket to ride the Δ’s train at a reduced fare. Ticket contained a clause stating acceptance of ticket meant purchaser waived railroad from any liability for injury or death caused by their negligence. Train derailed, clergyman died and his estate sued the railroad. PP: Trial court for the π Issue: Did the clause on the ticket bar suit for recovery? Rule: Holding: Suit bared---the clause is effective. Reversed for the Δ. Reasoning: Train is otherwise deterred from being negligent despite the clause on the clergyman’s ticket with the waiver. Other passengers on the train have no such waiver, so the train still has an incentive to take care—public policy not affronted. Court considers equal bargaining power of parties and ability of clergyman to have refused the offer. Class Notes:

Tunkl v. Regents of the University of California California Supreme Court, 1963 Facts: π admitted to hospital and signed a release that released the hospital from wrongdoing for negligence or wrongful acts by its employees if the hospital exercised due care in admitting the employees. Π was injured and sued for negligence. PP: trial court ruled for the Δ saying π understood the release when he signed it Issue: Rule: Court admits that it is hard to pinpoint when an exculpatory provision involves the public interest and is thus unenforceable, but suggests it applies in situations of:  Unequal bargaining power  Involves a business of the sort thought suitable for public regulation  Party seeking exculpation is engaged in a services of great public importance  Party holds services available for any member of the public who seeks it or meets certain standard  As a result of the transaction, the purchaser or his property is placed under the control of the seller and is subject to risk of carelessness by the seller Holding: Reversed. Reasoning: Exculpatory provisions are unenforceable if they negate public policy or involved the “public interest.” Court focuses on unequal bargaining power—hospital patient is the weaker party—any member of public may be in situation where the hospital services are essential and would have to assume the risk even though they might not be financially able to bear it. Usually when shift of risk is done, public policy is not in favor of risk shifting to weaker party. Patient has no choice but to sign the release (contract of adhesion). Notes: -public policy is antagonistic to a carte blanche exculpation from liability

79 -when disparity in public policy arises out of economic necessity for certain goods or services or from a monopolistic position of the seller, courts are against exculpatory agreements as anti-public interest

§469B. Express Assumption of Risk—Restaments 2nd of Torts A π who by contract or otherwise expressly agrees to accept a risk of harm arising from the Δ’s negligent or reckless conduct can’t recover for such harm, unless the agreement is invalid as contrary to public policy.

C. Primary Assumption of Risk-- NL when π freely undertakes a dangerous activity

Murphy v Steeplechase Amusement Co. NY 1929—Cardozo opinion Facts: π falls and fractures patella on an amusement park ride called “the Flopper” where people try to stay upright on inclined belt, but generally fall—as anyone planning to attempt the ride could see. Claims the belt was unsafely operated—too fast and jerky PP: Issue: Rule: Violenti non fit injura—One who takes part in such a sport accepts the dangers that inhere in it s far as they are obvious and necessary. Holding: For the Δ. Reasoning: -A fall was forseen and invited as one of the risks of the adventure—name of ride was warning as was experience of others on ride ahead of them. -Would be different is the risks and dangers were obscure or unobservable or so serious to warrant the belief that precautions were needed, but Cardozo doesn’t see that as the case here. Class Notes:

Woodall v Wayne Steffner Productions (The Human Kite) California Court of Appeals, 1962 Facts: Daredevil signed up with production co to do a stunt where he was attached to kite which would be attached to a speeding car. They promised him a skilled stunt driver and the driver promised to not go over 30 mph. Driver went 45 mph and π was injured. Π sued for recovery PP: Trial jury for π . Issue: Rule: “Assumption of risk must be free and voluntary.” If π ’s words or conduct shoes that he did not consent to relieve the Δ of the obligation to protect him the risk will not be assumed. If he consents but does so upon an assurance of safety or a promise of protection, he doesn’t assume the risk, unless the danger is so obvious and so extreme that there can be no reasonable reliance upon the assurance. Holding: Affirmed for the π . Reasoning: The speed of the car was not in π ’s control unlike the other aspects of the stunt, the risk of malfunction of injury from which he assumed. He relied upon promise of a skilled stunt driver which Δ did not provide and upon driver’s promise that he’d not exceed 30mph which he did not do. The risk of the unskilled driver speeding was not assumed by the π Class Notes:

Cohen v McIntyre (neutered dog attacks vet) Cal, 1993

80 Facts: Δ had her dog neutered by π so that it would stop biting people. Dog snapped at π and was muzzled. After operation, dog turned and attacked the vet. Π sued for damages alleging he did not know of history of dog being a biter. PP: Summary judgment to the Δ Issue: Rule: Holding: Affirmed for the Δ Reasoning: Δ owed no duty of care, did not conceal or misrepresent situation and conduct wasn’t so reckless to be outside of those who normally go to a vet. Class Notes:

Neighbarger v Irwin Industries (petrol leak) California Supreme Court, 1994 Facts: Δ’s employees working at a refinery and negligently opened a valve causing a leak or petroleum. Π’s, safety inspectors at the plant, went to shut off valve but petroleum ignited and burned them. Sued for damages. PP: Summary judgment for Δ on assumption of risk Holding: Reversed. Reasoning: Examines firefighters rule (no liability for injuries caused in line of duty). Compares π in that they also are called to handle dangerous situations. But, rule meant to bar recovery for foreseeable risks in employment context only. Public purchases exoneration from duty to care for firefighters (liability would make them pay 2x)—not the case for private safety inspectors. In this case 3rd party has no contractural relationsjhip or otherwise and so wouldn’t be unfair to charge with duty to care. Class Notes:

Hendricks v Broderick (turkey hunter shoots fellow hunter) Iowa, 1979 Facts: Parties are turkey hunters who both were hunting in camouflage and had no relationship. Used turkey calls to locate prey. Δ heard rustling and responsive calls and shot in that direction hitting π . Π sued for negligence. Δ argued contributory negligence and express assumption of risk. Π knew to not interfere with hunters imitating female turkeys to lure males. PP: Instructed jury to find for Δ if they felt π was negligent in assuming risk in turkey hunting and if that negligence was the proximate cause of his injuries. Jury found for Δ. Π appealed on claim of incorrect jury instructions. Issue: Rule: Holding: For the π . Jury instructions misquoted law. New trial Reasoning: Contributory negligence is not a separate defense from assumption of risk. Issue of due care and reasonableness applied to contributory negligence issue. For assumption of risk, “a hunter does not assume whatever risk there would be by voluntarily hunting.” Hendrick had a right to assume that other hunters would exercise due care under the circumstances. Tho hunting is inherently dangerous, that doesn’t absolve other parties from taking due care. Class Notes:

Lowe v. California League of Professional Baseball (Cal. App. 1997) pg. 597-problem (ball in face) Facts: Man at baseball game hit in the face by a ball. Sues team for injuries saying he was distracted by the mascot that was bothering him. Team countered saying he assumed the risk. What result? PP: Trial court gave summary judgment to team—assumption of risk. Holding: Reversed

81 Reasoning: (1) under the doctrine of "primary assumption of risk," the baseball team owners owed no duty to a spectator to protect him from foul balls, but owed a duty not to increase the inherent risks to which the spectator was regularly exposed and which the spectator would assume, and (2) the antics of the baseball team's mascot were not an essential or integral part of the playing of a baseball game and, thus, triable fact issues existed on whether those antics increased the inherent risk to the spectator or whether the spectator assumed the risk of being struck by a foul ball after he was distracted by the mascot.

Hackbart v Cincinnati Bengals (10th Cir., 1979) pg 597--problem Facts: π performed blocking move in football game. After the play, an angry player from opposite team hit him in the back of the head knocking him to the ground and fracturing his neck. He sued for his injuries. PP: Bench trial—judge ruled for Δ. Said that football players are trained and coached to have a controlled rage and game substitutes values of battlefield for those of civilized society. Π could forsee that such an event would occur and so can be said to also have assumed the risk of such an injury. My thoughts—I think on appeal that π wins. He assumed such risk during the game, but like in Vosburg v Putney, this action took place outside of prescribed time when such actions would have been permissible—but even in those instances, only controlled movements are ok—he would have been penalized for such a move. Holding: Reversed and remanded. Reasoning: (1) tort law principles were not inapplicable merely because injury took place during the game; (2) jurisdiction was not to be declined merely because incident arose out of a professional football game; (3) Colorado law did not preclude relief merely because injury occurred in course of the game; (4) recklessness, rather than assault and battery, was the proper standard for measuring liability; (5) acts of violence which occurred in other games and between other teams and players were without relevance; (6) proof of character of plaintiff by production of prior acts would be admissible only if his character was an issue, and (7) evidence of prior unrelated acts was not to be received merely for purpose of showing that defendant himself had violated rules in times past.

D. Secondary Assumptopn of the Risk and the Rise of Comparitive Fault

Overview: Arises when the Δ does have a duty to the π and may have breached it. Is an affirmative defense. The Δ argues that the π recognized whatever danger resulted from the Δ’s alleged negligence and voluntarily chose to encounter it—sometimes merged w/ comparative negligence (just compare reasonableness of π’s and Δ’s behavior).

Kennedy v Providence Hockey Club Facts: Woman seated in 4th row at hockey game hit with puck. Had been to several games and seen pucks fly into audience. There was a barrier to protect first 3 rows. She sued to recover for her injuries. Hockey club argued assumption of risk as a defense. PP: Summary judgment for the Δ on assumption of risk grounds. Π appeals saying assumption of risk is similar to a contributory negligence claim (they should split the difference—compare her assumption of risk with negligence of the club) Issue: Rule: Holding: Affirmed for the Δ.

82 Reasoning: Assumption of risk distinct from contributory negligence. When one acts knowingly, it is immaterial if one acted reasonably.

Hennessey v Pyne ((RI 1977) (golf ball to the head) Facts: Woman who lived next to golf course struck in head when tarrying in her garden. Sued Pyne for not calling out a warning (negligence). Pyne argued assumption of risk as a defense—π ’s house is often hit by balls—10x a day and she even has plexiglass up to protect windows. PP: Trial court gave summary judgment for Δ. Issue: Rule: Holding: Reversed—assumption of risk question is for the court. My thoughts: -A liability ruling would impact the activity levels of the golf course.

Fagan v. Atnalta (gallant knights and maidens in distress) Facts: Bar partron sees two female waitresses trying to break up fight. He intervenes to rescue them and gets his ass kicked. Sue the bar for his injuries. Claims chivalry for his defense. PP: Summary judgment for the Δ: Holding:Affirmed Reasoning: Assumption of risk—he observed the situation and knew the risks of getting involved in the fight.

Marshall v Ranne (attacking boar) Facts: Δ’s boar got loose onto π ’s property attacking and charging π and his wife. Boar charged π and bit hand on one occasion after several previous charges. Π sues for recovery for injuries. Δ claims assumption of risk as Δ and that π should have shot the boar. PP: For the Δ Issue: Rule: Holding: Reversed for the π . Reasoning: π entitled to judgment as a matter of law. Π was enjoying the use of his own private property —surrendering his rights to use his own property was not a voluntary choice.

Restatment of Torts §496(e)—Volunteers 1) A π does not assume a risk of harm unless he voluntarily accepts the risk. 2) The π ’s acceptance of a risk is not voluntary if the Δ’s tortious conduct has left him no reasonable alternative course of conduct in order to a. Avert harm to himself or another, or b. Exercise or protect a right or privilege of which the Δ has no right to deprive him. Comment: π ’s acceptance or risk is regarded as voluntary even if he is acting under compulsion of circumstances (not created by the tortious act of the Δ) which left him w/no reasonable alternative.

Chapter 13. Nuisance

A. Definitions and Standards

Bamford v. Turnley (England 1862) Facts: P complained of neighbor making bricks on his land. 83 PP: trial court thought the spot was proper for the purpose, and a reasonable use of land. Rule(s): Holding:Affirmed Reasoning: Pollock: Reasonableness is a question of context, facts, and should always be left to the jury. Nuisance a matter of circumstances and surrounding the situation.

Jost v. Dairyland Power Cooperative (1970) Facts: Coal burning power plant near farmers. PP: Issue: Rule(s): Holding: Reasoning: Strict liability once substantial damage is found. Question of social utility of conduct only comes into damages stage. It is irrelevant that D was conforming to industry standards or if he was using due care if his work created a nuisance. Just because the work has high utility doesn’t mean they don’t have to compensate small neighbors

Carpenter v Double R Facts: PP: Jury instructions about weight of equities/utilities, verdict for Δs. Issue: Residents near feedlot Rule(s): Reasonableness/Negligence standard: Value of the Δ conduct can excuse costs imposed on π Holding: Affirmed Reasoning: In a claim seeking damages the interests of the community which would include the utility of the conduct, should be considered in determining existence of a nuisance. Dissent: Costs should not be borne by unfortunate few, costs should be passed on to consumers, they are a negative externality but party of the calculus of utility.

Andreae v Selfridge Facts: D built store next to hotel, excavated using drills, lost business. Hotel sold to store owners, then sellers sued. Reasoning: Ds should be liable only for the costs imposed when they failed to use reasonable efforts to keep damage to a minimum, not damages for all costs imposed on Ps. Used the due care standard.

Bryant v Lefever Facts: D built wall next to Ps hous that blocked smoke from smoke stack, backed up into Ps house. Holding: Reasoning: Both caused the nuisance, neither one alone. So causation is irrelevant to coase. Bargaining btwn parties will be hard but courts should try to get to result they would get to if they bargained.

Rochhenbach v. Apostle (Mich. 1951) (753) injunction Facts: π seek to prevent a funeral home in a residential neighborhood—despite a zoning approval (alleging traffic, disease and depressing effect). PP: Issue: Rule(s): A nuisance will not be upheld simply on the ground that it has been permitted by municipal ordinance. Holding: Injunction affirmed due to possible mental effects on neighbors.

Adkins v Thomas Solvent 84 Facts: Chemical spill, fear had reached π’s property, though hadn’t, decreased property values. PP: Summary judgment in favor of Δ Issue: Rule(s): Holding: SJ to D affirmed. Negative publicity resulting in unfounded fear does not constitute a significant interference with the use and enjoyment of land.

General Notes:

Strict liability v Negligence: Jost: Strict liability once nuisance established Carpenter: reasonableness standard/utility can excuse liability

Strict liability is against the hand formula. P wins, impairs D’s use of land. If we use negligence, then it stops the price of the negative externality being passed on in the price of the product because where we find utility, there is no negligence.

Epstein’s theory: Stringent requirement to compensate for invasions of property enjoyment interests can be relaxed as these conditions become more prominent in the case: 1. High administrative costs for claim resolution 2. High transaction costs for voluntary reassignment of rights 3. Low value to the interested parties of the ownership rights whose rearrangement is mandated by the public rule 4. Presence of implicit in kind compensation from all to all that precludes any systematic redistribution of wealth among interested parties.

Sees Bramwell’s rule in Brmford v Turnley for necessary domestic purposes being allowed without compensation meets the standard set out above.

Decision departing from his approach is Andreae v Selfridge D built hotel next to dept store, excavated. Held liable only under due care standard. Epstien thinks construction far exceeded the low level harms to which live and let live should be applied. Allowing D a partial justification worked a redistribution of wealth between strangers, impermissible.

Coase’s theory: Goal of legal system should be to see that most valuable use prevails, and this is inevitable anyway if parties can bargain after court. Court’s decision is irrelevant from efficiency’s standpoint. Causation and Bryant v Lefever But study shows there is no bargaining after injunctions. Acrimony between parties, endowment effects, attituted toward right that make bargaining hard.

Restatement §826 “gravity” of harm and “utility” of conduct An intentional invasion of another’s interest in the use and enjoyment of land is unreasonable under the rules state in §822, unless the utility of the actor’s conduct outweighs the gravity of the harm. §826 Unreasonableness of intentional invasion An intentional invasion of another’s interest in the use and enjoyment of land is unreasonable if a. the gravity of the harm outweighs the utility of the actor’s conduct, or

85 b. the harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible. Comments to §822

B. Coming to the Nuisance

Oehler v Levy Apt building next Should pioneers in a city be entitled to hold someone to stable, which liable under changing conditions of the area? was there first. As the city extends, the nuisance businesses should keep moving to the outskirts. Higher use is always that which is economically the more profitable. Change in land values works automatically to change characteristics of neighborhood. Injunction granted. US v Luce Coming to the nuisance as a way to deny recovery rejected on grounds that a nuisance can make uninhabitable a much larger area than the land actually owned (should buy a buffer zone). Powell v Superior P lived cement Tr ct finding of damages reversed by sup ct because P Portland Cement factory town, ½ purchased property with knowledge about the town, a residents of town few can not hurt the whole town, burdens of depeneded on prosperity must be taken with its benefits. Because factory for factory employs workers, his property value is livelihood. probably higher with the nuisance. St Helens Smelting v 1865 UK P bought estate It is actionable if it produces discomfort. Everyman is Tipping 1.5 miles from bound to use his land in way to not injure the copper smelting property of his neighbor. P verdict because works not works, gases carried on in a proper place. Affirmed in HOL. killed everything. Material injury vs sensible discomfort, winning for later depends on location. Cranworth Dissent: The town was smokey anyway, so a little more smoke didn’t make any difference. Wensleydale: People cannot stand on their extreme rights and get in the way of industrialization. It would cripple all businesses and the economy. Erbrich Products v Chlorine gas No liability because when factory opened there was Wills escaped from no neighborhood around it. (First in time rule) factory injured neighbors. Sensitivity and Spite

Rogers v Elliott P was sick, Judged on standard of average person’s sensitivity, church bell gave so P knowing he is sensitive cannot put himself in him convulsions place of exposure and demand legal right of bell stopped.

86 Ampitheatres v Portland Drive in next to Directed verdict for D based on reasonable man Meadows race track with standard, doing something not normally noxious night races, lights does not become so by the delicate nature of the distort picture, neighbor. drive in sues Page county appliance v Tv store sues for Problem: I think no recovery, too sensitive, Honeywell radiation leaking wouldn’t bother most people. form computers down street, distorting pictures Poole v Lowell Dunn FL rejects House near Court used balancing utility test and ordinary hyper- quarry, blasting sensitivity test; resulted in verdict for D, appeal on sensitive caused house to hypersensitivity instruction. defense crack, child In general tortfeasor takes P as he finds him, should disturbed and be applied here too problems in marriage resulting in divorce Christie v Davey Adjoining Decision for music teacher because her noise was houses, one legitimate and not deliberately malicious, while his music teacher, was, but music has to stop in music makers house by one woodworker, 11pm. music went late and was loud, wouldn’t stop so woodworker started making “music” in his flat. Claim and counterclaim. Mayor of Bradford v Waterworks has The water works should have to buy out the Pickles water neighbor, why should he refrain from using his land contaminated by as he wants to so that the water arrives there clear? digging on neighboring land to force water works to buy him out. Barger v Barringer 8 foot tall spite Verdict for D reversed, because people can do what fence in response they want on their land only so long as for to complaint legitimate purposes, common welfare of all forbids forcing removal that this should be needlessly permitted to be of stables spiteful. No one ought to have the legal right to to make malicious use of his property for no benefit to himself, but merely to injure his fellow man. Dissent: Best to confine civil litigation to enforcement of rights, not allow causes of action based on motive 87 alone. Otherwise take away rights of landowners, making them only occupants, held hostage by sensitive neighbors. Fontainbleau hotel v Hotel built 160 ft P argued easement of light, motivated by spite. forty five twenty five tall tower A landowner has no legal right to the free flow of blocking other light and air across adjoining land of his neighbor. hotels sunlight on Where a structure serves a useful and beneficial pool and beach. purpose, it does not give rise to a cause of action, even if erected partly out of spite. Blackstone: first in time, if the nuisance is there first, and I move near him, the nuisance is of my own seeking and may continue.

St. Helens v Tipping people in industrial towns had shorter life expectancies, and law of nuisance was not being applied in those towns.

Statutes now cover coming to the nuisance, it is one consideration among many. If it has been in operation for a while before compliant, will help excuse it from liability.

D. Remedies

Madison v Ducktown Tenn Δ copper mines burned Injunction reversed: can’t we just grant them their Sulphur 1904 piles to get ore, made damages and think that’s enough or do we stop smoke, damaged crops the actions of the Δ, confiscate the factory for and health, factory had benefit of π. That would be appropriation without spent $200k to reduce compensation. There is not a more remote place noxious vapors, no the Δ can go. other way to do it, π In a case of conflicting rights, where neither party farm worth $900 can enjoy his property fully if the other does, must make the best arrangement it can between the parties, with a view to preserving for each the largest measure of liberty it can, so in this case only damages, no injunction. Whalen v Union Bag and NY Pulp mill Award of one year’s damages $100 reversed and Paper 1913 contaminated stream injunction granted. Balancing the equities always hurts the party that is already poor. Denying injunction puts even further hardship on him. Weight of authority is against using balancing of equities as means of determining injunction. If a factory goes to a domestic stream, it can only use it for domestic purposes. Boomer v Atlantic Cement Cement factory shook Holding: Award of injunction unless payment of houses, but employed permanent damages. 300 people and had Reasoning: can’t expect factory to make technical 45m invested in it. advancement to stop nuisance, depends on whole Values of homes industry. dropped by 50% Haggling over property value, since the factory HAD to buy it, shouldn’t they have to pay more since they have no choice? Court says no and follows Ds valuation of houses.

88 Spur v Del Webb Development grows COMPENSATED INJUNCTION. Calabresi rule toward cattle lot, IV, injunction should be granted against feedlot which also grows a bit but del Webb has to pay Spurs cost of relocating toward development because developer could foresee the problem when bought cheap land outside the city. Having brought people to the nuisance to the detriment of the enterprise that is the nuisance, Webb has to indemnify the feedlot.

D. Remedies—Class Notes

Significance of bargaining after judgment: injunction doesn’t stop the actions, can make the D bargain with the P to continue. A finding of no liability can be seen as forcing the same sort of negotiation, P can pay to have D stop. Even damages can just be a starting point for negotiations? How is that true?

Courts should favor injunctions when transactions between parties are feasible. Damages are a second best remedy for usin in cases where bargaining after judgment will be difficult. High transaction costs include: - large numbers of parties, where last one to negotiate can demand unreasonable sum - bilateral monopolies, where party has no other options of someone to deal with - three reasons why bargaining might not succeed o too much enmity o party who prevails attached too much value to right o strategic behavior

Madison case could be seen as forcing Ps to sell their home to Ds at a price determined by the court.

2/28/06--Class Notes—Logistics: -No more class for the rest of the week. Review session Friday in Rm II at 11am and also at 1:30 for Gersen.

Old Exam Question Reviews: 1. Sophie and her smoke detectors. What sort of claims could she make?  Possible defective design claim—has to show negligence in the design of the smoke detectors (Volkswagon v Young)  Idiosyncratic person is problematic (Rodgers v Elliot)—Sophie is a heavy sleeper. But, if they put a warning on the alarm, Sophie would have had notices. Also, could have had settings placed on it or volume monitor or something.  Defective product manufacturing claim—sampling issue—probably not a good claim here.  Causation is a more interesting claim here. Even if she woke up for the alarm, the fire would have still damaged her home. (Lone Palm Hotel)  Retroactive Liability—alarm should have had such volume settings—looking ahead to better safety techniques. Not a very good claim (similar to the airplane case Bruce v Martin-Marietta) 89  Sovereign Immunity (can’t sue the government)—Hard for her to sue the city for not having a professional fire department  Recurring Miss Claim (w/o the suit, the manufacturer wouldn’t be caught or deterred— overlook preponderance of the evidence rule): Even if causation is low, Sophie could argue that they pay for % of damage equal to their % liability (causation). (See Lost Chance Cases— breast cancer/ diagnosis cases). Full recovery given in cases with outraged judges (diagnosis cases) 2. Blasting to expand Midway  Strict liability—blaster pays for all damages. Blaster can reduce his payout by asking homeowners to take precautions  If a court restricts the blasting, there is no strict liability as homeowners are expected to take precautions.  If homeowners got a partial injunction restricting Blaster to certain hours, there is no strict liability—homeowners have to take precautions  Cite Indiana Harbor Belt Ry. Co. v American Cyanamid Co. (chemical spill from train cars)— Levemore thinks this is a great case to remember and cite.

Review Session Class Notes: -Exam format—Levemore—3 short questions, Gersen’s section is first -Levemore—all questions are equally weighted—spend more time on the first of the 3 questions; covers most of the topics -Net Loss, Innovations and Warnings:  Think of the termite case and peanut hypotheticals  Warnings—failure to warn is one of three roots for liability in product cases  Connected to contract law. Manufacturer is the single best problem solver—can warn at least cost  There is a net loss –people who are warned or scared away  In innovation cases (think mechanic hypo) we do not impose duties to disclose information because of fear of stifling innovation  Manufactures can sell information -POE, Probablistic vs No Recovery Probability Rule: -A= underpayment by Δ B= underpayment by π C=overpayment by Δ 60% chance barrel fell from x’s warehouse and 40% chance it fell from y’s warehouse. Π isn’ t sure. Possible Rules we could employ: (look at handout) -no recovery on statistical evidence alone—naked probability rule—have to pick a Δ -Preponderance of the Evidence Rule—make X pay, b/c he is over 50% linked to the harm and he pays 100% of the injury. This leads to errors: Error= .6(0) + .4(100 + 100)= 80 -Probabilistic rule—X pays 60% and Y pays 40%. There is always an error in this rule. Error= .6(40 + 40) + .4(60 + 60)=96 Probabilistic rule—citation: Sindell: Market share liability in the pharmaceutical liability case. When you have thousands of π , the error rate approaches 0 and probabilistic rule becomes more workable. No recovery probability rule incentivizes the π to find out more information (information forcing) -Kiminsky v Hurst (yellow truck in snow storm), Smith v Woodhopper (bad riveting job): Both cases use probabilistic rule. Similar to cheese case in the practice exam questions. Hard to determine what a normal person should have done in such a case.

-If negligence is hard to prove because evidence is destroyed by the blast of the fire, strict liability makes sense in such cases.

90 -Last clear chance citations: best is the hypo of the fraternity tying people on the railroad tracks—train engineer has the last clear chance to avoid the harm. Assumption of risk on part of frat is trumped by last clear chance.

-negligence is base line rule but there are other cases where strict liability is standard (Ryland’s v Fletcher, blasters, wild animals in backyard etc.)

-Intervening Wrongdoers: (joy rider case—girl steals car that has keys in it; black out case with looters) -Generally speaking, if dude is negligent and causes harm than there is recovery. Old school rule would say that world with car thieves would negate recovery. But, in a world were thievery is a constant, esp opportunistic thievery, there is a shift of the burden and it turns to a case of incremental causation rather than just a case of intervening wrongdoers. Sometimes statutes trump this rule—ie there would be no payment according to law in the joy rider case for the car owner who left keys in ignition. -Brauer—court seems to just be annoyed with security guards who sit by the wayside

-proximate cause may be a way of talking abt things like comparative negligence, intervening causes etc. -Balfour –blow torch case in the house. Usually strict liability. Levemore—thought that going with a disclosure rule is a good idea—would have probably avoided the harm. Levemore concerned about overwarning in such a case—like the boy who cried wolf—overwarn to point where warnings mean nothing.

Gersen Review Session Notes: -Exam: 3.5 hours but written for 3 hours. -case citing—should do some but is not the most important thing -don’t worry abt blending 2nd quarter stuff with 1st quarter stuff -exam written with an eye toward the class—weave in discussion and concerns discussed in class Negligence/ Precaution/ Activity Levels: Is test for battery subjective or objective (Idaho): It is objective—reasonable man. Win-Win Principle vs Uniform Owner Principle: Ex ante class of π and Δ would have agreed on the same rule (win-win principle); uniform owner principle—consider what a reasonable person would do if they owned both the property protected and sacrificed (won’t sacrifice really expensive article to save inexpensive stuff, but would do the opposite.) Difference btwn Complete and Incomplete Privilege: Complete privilege—don’t have to compensate for use but do have to compensate in incomplete privilege. Private necessity (incomplete privilege) Public necessity (complete privilege) Private necessity mistake: Ploof v Putnam (was no actual necessity—storm didn’t come)—you have to pay for the privilege anyway When must a person retreat from a confrontation with a person in their own home?: If there is a threat of serious bodily harm and the person is not a member of the household, you don’t have to retreat. If you are not in your dwelling, and it is not deadly force, you don’t have to retreat. Battery and the Intent Requirement: Does the person have to intend harm? Just have to intend to make contact. Lubin Iowa City—rusty pipe case; Lubin v. Iowa City (Iowa 1964) (Bursting Pipes) (412) Strict L D (city) had policy of leaving buried water mains in place until they broke (even as they reached the end of their estimated life). Court rules for strict liability rule here ala Rylands. Why isn’t negligence sufficient here? Court says here that when such a policy is put in place, water mains become inherently dangerous. Strict liability may result in a change in activity levels on the point of abandoning the policy of waiting until an accident occurs to take care.

What about reciprocal risk cases, ie. two factories next to each other, one with a giant gas tank on roof and other with equally nasty stuff in the building. What rule, negligence or strict liability? Strict liability for 91 other 3rd parties (neighbors) and negligence as to one another---but this is an uncomfortable stance for a court to take. It would be silly for court to apply negligence as to one party but strict liability with others. Court would go with strict liability.

Rylands list. Why is blasting on the list?: Rylands list is just definitional way to structure strict liability cases that diverge from background rule of negligence standard. Many have uniform theme of inherently dangerous items that escape. Anti-Rylands List:--think abt cases where wrongdoer doesn’t pay.

Spring gun case: Restatement says spring gun ok if you would be privileged to use the gun if you were actually there—to protect life. Recall burglary case with spring gun case aimed at knees to thwart thieves. How do we reconcile? In that case, the people were not on the property and the person who trespassed was just a thief and not a murderer. SO, setting up a spring gun for Jeffrey Daumer may be different. Law has anti-spring gun trend. Look at contractor cases and no liability issues. Bond v Otis and Res Ipsa: Bond v Otis pg 212. TJ Hooper—how to reconcile with Ellis case: look at pg 158—re read them. Custom cases. - Both courts agree that custom helps us see what due care requires but is not the end all and be all. (Adherence to custom is not a complete bar to liability, it is merely probative, you can still apply the hand formula and determine negligence.) One cannot give consent to illegal acts in order to bar recovery. Restatement 892

When negligent rate and unavoidable accident rate are close, then the res ipsa loquitor case is weak—ie it isn’t obvious that negligence caused the harm.. Compliance error relates the probability of negligence for very dangerous things (power plants). Level of care required is expensive. The right level of unavoidable accident rates is 0. All of these precautions create room for errors—compliance error. Probability of harm given no negligence in nuclear power cases falls to 0. So if harm occurs, the probability that there was negligence to cause the harm is very high. So, is a strong res ipsa locquitor case.

Chart: look on the Chalk site

92

Load more

  92

Copy Link