• Abstract and Figures
• Public Full-text

Torts Outline: It’s not about you being a bad person and punishment, not about stigma, but about shifting a loss. Who pays for the mess. 17/08/2006 13:24:00 There are three theories of liability:  Intentional liability  Negligence liability  Strict liability. I- Intentional  Prima facie case: four elements must be met and it means that baring any defense you would win the case: o There is INTENT . Definition of intent as per Restitution:  Either purposeful or knowing , with a high degree of certainty, that harm will occur. o There is ACTION o There is HARM (sometimes not needed!) o There is NO CONSENT.  1-Trespass o A- To persons (battery) intentional contact with another person without consent. (Vosburg v. Putney: kick in the knee. Intent to harm not needed. Liable anyway for all damages). If contact is not wanted, even if you find out later, it’s still a battery or trespass. Not so with assault since that requires knowledge so that it can create apprehension. o B- To Property . a- Land (Dougherty v. Stepp: guys who surveys land but doesn’t harm it. Intent to harm not needed. Liable anyway) . b- Personal Property (Chattels) o C- Transferred intent applies to act and to person! Courts are generous to surprise victims in this case. Not so in unintentional torts. That’s still up for grabs!  2- Torts to protect dignitary or emotional interests: o A- Assault: one person is subject to liability for assault if: . He acts intending to cause a harmful or offensive contact with the person of the other or third person, or an apprehension of imminent contact, and . The other is thereby put in such imminent apprehension (I. de S: drunk with the hatchet). So the intent of battery is an assault, hence assault and battery! Apprehension is defined as different from fright. Even if the person thinks he can deflect the threat, or if he thinks bystanders will prevent the harm, as long as the threat is there, there is assault. Mere words don’t count. Person has to be aware of you to feel apprehension. If there is no awareness, there is no assault. Also, it needs to be a reasonable apprehension on the part of the victim. Thin skull doctrine does not apply UNLESS defendant KNOWS that the P has a particular hyper sensitivity. Public policy could be that the behavior of D is in itself outrageous , or the fact that not punishing it would lead to retaliation. Hypo: if you give me $50 I won’t beat you up, IS assault even if it could be argued that it is words alone and there’s no threat of imminent contact, but if it’s not punished, it threatens the very interest the tort of assault is made to protect. So, conditional threats are still considered an assault. Can you transfer intent to a third person? Can D be charged on two counts if it is? Courts don’t like this one because it may have people exagerating or making things up. (nurse and pregnant woman and gas meter reading guy). Restatement says that if the other person being assaulted is a part of your family or if not, if there was actual bodily harm. o B- Offensive Battery: (Alcorn v. Mitchell: guy who spits on another in court) . He acts intending to cause a harmful or offensive contact with the person of the other or third person, or an imminent apprehension of such contact, and . an offensive contact directly or indirectly results. Knowledge at the moment that unpermitted contact has taken place is not necessary to establish the battery (example of the kiss when you sleep). Can be not only on person but on things closely attached to the person( His horse, his cane, his book). o C- False Imprisonment: Restraint within some limits defined by a power or will other than our own. . Cases: (Bird v. Jones: highway closed for event and guy wants to go there!) (Wittaker v. Sandford: wife “imprisoned at the palatial yatch!) (Coblyn v. Kennedy: old coot who’s buying a coat and is detained for suspect shoplift when he’s not, and then had a heart attack) . Elements:  defendant must intend to confine P.  As per restatement, actual knowledge by the victim is necessary  Within limits set by confiner. Four walls, not three.  By force: force, coersion, duress, or reasonable fear. . Considerations:  no liability for negligently caused imprisonment.  Regardless of how big the area of confinement is  If P had reasonable grounds to believe her life is endangered, even if she is allowed to leave, then the false imprisonment claim still arises (My hypo of Bo standing outside with a mallet, even when doors are open)  If they put a restriction on your property or you have a fear that someone who is there will attack you if you leave, then a strong argument can be made that duress overcomes your consent to be there, which will undoubtedly will be claimed by D (she consented!) Is avoidance of moral condemnation enough duress to overcome the consent. . Defenses:  when storekeeper has an honest and strong suspicion that guy was attempting larceny.  or when you are protecting property or life: Sindle v. New york transit Authority.  Parental control and discipline, including deprogramming from cults, drugs, etc. o D- Intentional infliction of emotional distress: . As per restatement:  1- One who by extreme and outrageous conduct (beyond any bounds of decency, atrocious, intolerable)  intentionally or recklessly [we don’t know exactly what it means: less severe than intent (purpose or knowledge) but more than negligence. Don’t use it in this class!!!!]  causes severe emotional distress to another is liable and if bodily harm ( caused by the action or words) occurs he’s also liable for it.  2- Where such conduct is directed at a third person, if he causes severe emotional distress to  a- a member of such person’s immediate family who is present at the time,  b- to any other person present IF it results in bodily harm. . (Wilkinson v. Dowtown: “friend” who tells wife husband is broken up after accident and she starts having significant physical injuries) . It may rise from the actor knowing that person has a physical or mental condition and acting nonetheless . Some examples are:  Strong arm tactics (garbage collectors v. Siliznoff)  Bill collection harassing tactics  Outrageous professional conduct ( Dr. who doesn’t check women from accident and sends them out to the freezing rain to wait for husband)  Racial insults  Sexual harassment  Very ruthless practical jokes (Babe Ruth is dead case)  3- Defenses to Torts: o Consensual defenses: . Implied consent (Mohr v. Williams: operation on wrong ear. No implied consent. Intent to harm not needed, liable anyway) . Consent in fact (Cunnard case of women who put out their arms to be vaccinated) . Emergency rule: Consent is implied in emergencies. . Minors and other incompetencies: parents decide, or guardians and law protects the good faith decisions of guardians. . Consent for contact in the case of sex is overridden if fraudulently induced or if it has nondisclosure of material facts. . In the case of sports: pari delicto (equally at fault), volenti non fit injuria (no harm to the volunteer) and ex turpi causa non oritur action (no action arises of improper or immoral causes) However, if the blows are even out of the sports rule, implied consent doesn’t apply.  Recklessness as per third rest:  An actor causes reckless harm if: o He knows of the risk or harm created by his conduct or knows facts that make that risk obvious to anyone in the actor’s situation. o And o the precaution that would eliminate the risk involves burdens that are so slight relative to the magnitude of the risk as to render highly blameworthy the actor’s failure to adopt the precaution. o Insanity: v. Almy: not a defense. Intent to cause contact controls, not intent to harm. It is done so people who take care of the insane also have responsibility for their behavior. o Privileged defenses: . Self Defense: use of reasonable force is ok, even if you hit an innocent bystander. (courvoiser) Highly regarded. . Defense of third parties: ok too. Even in the case of the hypo of the person who batters the plain clothes police officer who is battering a suspect and you come the rescue of the suspect, unknowingly. . Defense of property: ( bird v. Holbrook: tulip garden) difference is that interference with property cannot be equated with interference with a body, so as defendant you don’t have as much latitude. . Defense of chattels: (Kirby v. Foster: bookeper who takes $50 and manager beats him up before he leaves) even less force is allowed. When someone wrongfully takes possession of chattels, then the use of force may be ok, but not when there is now wrongful taking and no breach of peace. ←  4- Remedies: all these affect all intentional torts EXCEPT Intentional infliction of emotional distress. That has its own remedy because damage is so extreme it cannot be done by compensatory, nominal and especially NOT parasitic damages. o Nominal ( trespass on land case where there was no damage) o Compensatory (Vosburg v. Putnam) (Ploof? Vincent?) o Punitive ( Alcorn case of guy who spits on the other one) o Parasitic damages: those that get added on to compensate for mental distress caused by a tort that otherwise has been already dealt with: a battery, a trespass. Pain and suffering are good examples of this. Damage doesn’t have to be as SEVERE as intentional infliction of emotional distress (That’s its own tort!) PD are only add ons to a tort, so first you have to have a tort cause. ← II- Negligence: Negligence is conduct that creates a reasonably foreseeable unreasonable risk! Especially when burden of care is low. Read below. *Evidence of subsequent repair is not admissible in a court. It will discourage D’s from doing the sensible thing because it may hinder their case.  Damage: first thing to look for. Did P suffer harm? Liability only lies if there is damage. Nominal damages are not available for negligence cases, only compensatory because if there was no damage there is no negligence! So awarding nominal damages (usually reserved for intentional torts where there is no harm) would negate that there is a harm and thus negate the negligence! o Burden of proof: P has burden of proof in every negligence case. If defendant is using contributory negligence as defense, the burden of proof of that is on defendant.  Duty: did D owe P a duty to conform to a standard necessary to avoid an unreasonable risk of harm to others? TO whom is the careless person responsible, to the person who was harmed or to all other individuals who could potentially be harmed, even surprise victims. One judge in Palsgraff (Andrews) says that there is a duty to everyone. But there has to be causation as well: but for… The damages must be connected with the negligence and be a proximate cause. So the second question is FOR WHAT? Cardozo’s view is that the duty is only to foreseeable victims. It is a disproportionate burden of responsibility to give them a duty for everyone. o Calculus of Risk: . Learned Hand test was there a duty and has that duty been breached). There can be contributory negligence as a defense and other defenses. the duty of the owner to provide against resulting injuries is a function of three variables: 1- probability that injury will happen 2-gravity of resulting injury and 3- the burden of adequate precautions. If the burden is less than the multiplication of probability by gravity, then he is liable. So, if B< P*G => liability. P*G (or L as Hand puts it for LOSS) is also shorthand for risk. So if risk is greater than burden to prevent, then there is liability. Hypo of the train with fainting woman who gets her face burned on pipes on floor. Demonstrate small B as compared to big L and try to not see P! . Restatement §3: an actor is negligent in engaging in a conduct if the actor does not exercise reasonable care under all the circumstances. Primary factors to consider in ascertaining whether conduct lacks reasonable care are the foreseeable likelihood that it will result in harm, the foreseeable severity of the injury and the burden that would be borne by the actor and others to take precautions to eliminate or reduce the possibility of harm. o Affirmative duties: . Duty to rescue: Actionable negligence is the neglect of a legal duty. Were you under a duty to act? Not a strict liability thing. NO duty to succeed, just a duty to prove that you acted carefully with due ordinary care.  Defendants are not liable unless they owed a legal duty to the P which they neglected to perform.  Moral obligations don’t count. Good Samaritan doctrine says you don’t have a duty to act. Vermont, however, and some countries (France) have statutes to the contrary: you’re criminally liable if you don’t help people in a situation of danger. This is the balancing act between morality and individual freedom and if we use the hand test, even though it looks like the burden is small, it is not because it impinges on your freedom and makes you enter into a forced contract then.  When there is a trespasser, they can only use such force as is necessary for the purpose of ejecting him and must abstain from acts of personal violence.  An infant is liable for his own trespasses.  You have a duty to rescue those you have harmed  You have a duty to aid those whom you had no duty to aid, but which duty you undertook and now have assumed so once you start you’d better follow through because otherwise you’d be dissuading others from helping the person.  You cannot prevent or disable a third person from giving aid to another.  State or fed government have no duty under due process clause to give protective services (?) . Duty owed by owners and occupiers  There are three kinds of categories under which people can be in someone’s property:  Invitees: by invitation express or implied of the owner. Must be on the land for some purpose for which both he and the owner have a mutual interest. Also then, business visitors are deemed invitees. The duty owed by the occupier or owner to these: the highest duty of care: reasonable care that they are safe premises.  Licensee: by leave and license of the owner. Not invited and owner does not have an interest in his being there but has either expressly permitted him to be there or implicit by knowing he’s there and not being worried about taking him out. Also, social guests! The duty owed by the occupier or owner to these: lower duty: no duty to ensure safety but must warn of potential dangers not easy to discover but known to owner.  Trespasser: without invitation of any sort and if the presence is known it is practically objected to. The duty owed by the occupier or owner to these: no duty to act. He enters at his own risk. Why protect them if you don’t even want them there and cts don’t want to go to bat for this kind of D. Owner is only liable when the injury is due to some willfull act involving something more than the absence of reasonable care. There must be some act done with the deliberate will to harm or at least with reckless disregard of the presence of the trespasser. o Willful and wanton exception: you may be liable to tresspassers if you show a reckless disregard for p’s welfare. o Attractive nuisance: allows infant trespassers to recover when lured by some tempting condition created and maintained by D. Some courts reject it on the grounds that almost anything can be attractive to kids.  Section1714 of civil code establishes cause of action for negligence (duty to care) that applies in CA. . Special relations:  General rule is that a person does not have a duty to protect another from the harmful acts of a third person.  Exceptions are special relations: Statement of a conclusion. It’s not an observable fact of nature this is but an artifice created and you cannot see it on an exam, you must reach this conclusion by analysis. ONLY USE SPECIAL RELATIONSHIP for a case that raises the issue of affirmative duty for protection of P from harm of a third person. DO NOT APPLY TO EVERY NEGLIGENCE CASE! Just this kind of action for harm from third person.  Restatement 315: if there is a special relation between EITHER the person and the actor or the person and the victim. So, therapist in Terasoff and landlord in Kline. Even If the therapist should have been able to predict danger but didn’t, he’s still liable for falilure to disclose danger. FORSEEABILITY is key. Lawyer responsibility: excepting client – lawyer privilege if it’s to prevent a potential harm.  Breach: Did D’s conduct, by act or omission, fall below the applicable standard of care? REMEMBER TO MENTION FAILURE TO DISCLOSE IN MEDICAL CASES.

o Standard of care is: Ordinary care which is the same regardless of situation: 2 feet or ten feet, but what the defendant needs to do to meet that standard is different on every case depending on situation. ” Brown v. Kendall (case of the fighting dogs) the standard of care was laid out as “ordinary care, based on the exigencies of the case, not extraordinary care. P has burden of proof in every negligence case was decided in Brown . o Ordinary care as defined by whom? The Reasonable person. Who is the reasonable person? Main premise: The reasonable person does not create unreasonable risks. “Negligence is the omission to do something a reasonable person would do under the circumstances, or not do under the circumstances”. Brown v. Kendall (case of the fighting dogs) the standard of care was laid out as “ordinary care, based on the exigencies of the case, not extraordinary care. . General rule holds beginners to the standard of care expected of those who are reasonable skilled and practiced and practiced in the art. Below average skills are ignored so we don’t have a multiplicity of standards. And if a D has a higher level of skills, he is only required a normal level of skill UNLESS he represents himself as having a higher level of skill. (Vaughn: stack of hay) . minors are held to the same standard as others their age when engaged in activities proper to their age, experience and wisdom, not to activities usually undertaken by adults. Kids under 5 cannot be charged with negligence. (Daniels v. Evans: 19 yr old driving motorcycle) However, if the child is co- negligent (harm is to himself) then the child is held to the standard of a child their age and maturity. . Insanity generally not a defense unless it happens suddenly and without warning not as in Burnig case of Batman woman! . Whether you’re rich or poor you’re held to the same standard (Denver & Rio grande RR v. Peterson) . Common carriers: FORK IN THE LAW: have a heightened duty of utmost care an vigilance of a very cautious person towards its passengers. They are responsible even for the slightest negligence and are required to do all that human care, vigilance and foresight can reasonably do under all circumstances. The degree of care and diligence which they must exercise is only such as can reasonably be exercised consistent with the character and mode of conveyance adopted and practical operation of its business. The passengers have total dependency on the carriers for safety hence why the standard is higher. Hotels and Inn keepers also have this standard. But some courts have rejected this standard and Ken seems to think that ordinary care should be the standard and reasonable care given the circumstances in carriers and hotels, etc., means that what the person needs to do must be more under certain circumstances. Keep to reasonable care, ordinary care, prudent person care, etc. o Custom: Fork in the law: works better as sword for P than as a shield for the D. . Sometimes customary care is the appropriate standard of care under common law. This could be bad because if someone is innovative and tries something better, they can be held liable for negligence because they didn’t use the customary care! Medical cases usually fall within this approach because judges are reluctant to substitute their opinion for the opinion of knowledgeable doctors, so they assume the doctors know best. . Sometimes customary care may not be the appropriate standard of care. (TJ HOOPER case: barge without radios) Also (Helling v. Carey: glaucoma test)Hand came on this side. He advocates his usual formula of economic analysis of how much for the burden of prevention against the cost of the risk (P*L). Hand’s view is overwhelmingly accepted in courts. He says that custom is admissible in court as evidence of care but it is not conclusive of care: if most people are using it all the time, it may show that custom . Restatement: downgrades the position of custom: Compliance with custom of community is not negligent but does not preclude a finding of negligence, while a departure from custom, in a way that increases risks, is evidence of the actor’s negligence but does not require finding of negligence. . Statutory negligence: Negligence per se! implicit notion of legislative supremacy to justify rule that noncompliance with a statute counts as negligence per se. Big boost for P. If he proves this, he has a prima facie case. So can the same conduct that exposes you to criminal liability expose you to civil liability as well? Sometimes! If it is found that you violated the statute, then there is a presumption of negligence .Causation, damages and defenses like contributory negligence are left to the jury to find. If no excuses or rebuttal are shown, then a directed verdict where they need to find negligence no matter what. BUT since excuses can be shown (in this case it was more responsible to violate the statute than to follow it Tedla v ellman: see below), once this is proven, then there is only evidence of negligence. So what it means is that negligence is only proven if all elements are proven, especially causation. As opposed to res ipsa where it is not a presumption of negligence, just evidence of negligence. The difference is that in the case of negligence per se, the legislature has spoken in the statutory requirement and judges does not want to leave it up to the jury to decide whether it is or not negligence, hence the directed verdict if there is no rebuttal to the assumption of negligence. . Restatement: An actor is negligent if without excuse the actor violates a statute that is designed to protect against the type of accident the actor’s conduct caused, and if the accident victim is within the class of persons the statute was designed to protect. Also, the restatement makes a difference between operating without a license because you failed to renew or because you did not pass licensing test.(California’s code is more or less the same.) Violations of the statute may be excused by necessity or emergency, or by reason of incapacity, as is the case with various forms of negligence. (Tedla v ellman: two people walking on wrong side of st. who get ran over by truck) This provides an excuse when the actor exercises reasonable care in attempting to comply with the statute. Cases should be treated as negligence cases and not strict liability by providing an excuse when the actor exercises reasonable care in attempting to comply with the statute. In fact, compliance does not guarantee non-negligence. The standard of care remains reasonable care. So if compliance with statute puts you below that, you’re negligent, nonetheless.(Example of labeling container in 2 mm font as per statutory requirement). If the violation occurs against a statute that protects a particularly vulnerable class of people (kids, workers) then courts generally will find negligence per se EVEN if reasonable care was used (Airlplane glue hypo). . Plaintiff needs to show that she falls within the class of protected people. Easy when statute serves multiple purposes. Sometimes it’s difficult. OSHA’s statutes! . Actions generally have to be of the type the statute was designed to protect against (case of the sheep who drown after being washed away from boat for lack of pens. If statute was to have them penned to protect against disease, then the loss of the sheep was not covered by the statute and liability will not be incurred on the basis of negligence per se. However, simple negligence will do the trick! Sometimes, however, the SCOTUS has not applied this because it may not apply in a particular context and so they have allowed recovery. . Statutory violation may not give rise to a private action for negligence per se. If the statute explicitly permits it, then ye. But when silent, we first need to determine if statute would permit it based on whether persons are of protected class, whether the action would further the legislative purpose (is this what they meant to protect from), and whether the action is consistent with the legislative scheme. (is that what they meant to do?). It allows a directed verdict when proved.  If the statute is Federal, more often than not, they have held that no private actions can arise of the statute (Cort case: no private action for damages against corporate directors because of violations of US code). Alexander . Sandoval no private actions for enforcing disparate-impact regulations under title VI of civil rights act of 1964.  If it’s a breach of an ordinance (local city law) or by a regulation of an administrative office (EPA, etc), what weight should they be given when trying to determine standard of care? Not as much as legislative statutes because state legislatures can actually change the tort laws if the state. Not so the administrative offices or the local legislatures. The evidence of negligence per se presumption is not proven in that case. It is relevant, but it will not be given that strong presumption of negligence. It is just “ some evidence of negligence”. No jury instruction can be given, only to say that this can show “some evidence”. They do not carry the weight that state statutes carry. . RES IPSA LOQUITUR: Governs only negligence cases. If there’s anything else, it cannot be applied. Aids the P in proving negligence by circumstantial evidence v. witnesses observation or direct information; the trier of fact is asked to infer what else happened from the circumstances we do know. Incomplete set of information. Trier of fact draws important inference as to what else happened. Educated guesses are required. (byrne v Boadle: barrel of flour who falls on guy. Court says d is liable). This speaks to two things we need to worry about as lawyers: to what extent do we trust that people will tell the truth even under oath and to what extent do we trust the mechanisms of discovery and cross examination to get to the truth. As a lawyer you counsel your client that perjury is, both legally and morally, a very bad idea. This doctrine is needed where the plaintiff’s access to facts is very much less than the Ds access to facts. Some commentators think this is in fact an element of the doctrine! Others disagree. But what we do know about the facts is that somebody was careless. Fairly intuitive and common sense. Because it creates a presumption of negligence it means that the D now has the “burden of going forward” for NON negligence. It doesn’t mean that there is a directed verdict for P, it means that it allows the P’s case to reach a jury and to consider it. Not as strong as negligence per se because it doesn’t guarantee victory for P. D can rebut. Inference of negligence only.  Threshold issue: a passive plaintiff and something that happens TO him that causes the harm. If you find this, you work with this doctrine.  The three elements for res ipsa loquitur follow. If all three are met, the jury may infer that the D was negligent even though there is no direct evidence to that effect.  The accident must be of a kind which ordinarily ( as stressed by Ken) does not occur in the absence of someone being negligent. (The thing must not happen in the absence of someone’s negligence) The P needs to prove that more often than not this kind of thing only happens when there’s negligence of the kind of person the D is. Expert testimony comes in handy here, especially in medical procedure cases. DON”T ask did this defendant act negligently. You just killed res ipsa. You need to ask was this kind of accident a kind of thing that usually, ordinarily doesn’t happen…  It must be caused by an agency or instrumentality within the exclusive control of the defendant (It must be caused by D or someone in D’s control). ; in medical cases, the element of exclusive control can be stretched because the P will not even know what instrument or person did it. And they control the information so it is modified for this narrow situation of medical negligence, so that the inference of negligence will arise just by the P bringing to court everyone who was there controlling all the instrumentation, then the burden falls on D to explain their actions. First thing you tell them is to get separate lawyers, because all D’s now have a different interest, as they would like to be exonerated by pointing fingers at others. At that point, each D shows how he was exercising ordinary care. Exculpate yourself and inculpate others. And if no one has seen anything out of the ordinary and no one can be found culpable, then they are ALL held liable! DO NOT EXTRAPOLATE THIS CARVING OUT OF THE RULE FOR ELEMENT TWO TO OTHER TYPES OF SETTINGS OR EVEN OTHER MEDICAL INJURIES WHERE THE CIRCUMSTANCES ARE NOT THE SAME.  AND it must not be due to any voluntary actions of the plaintiff (AND it must not have been due to any voluntary action or contribution on the part of the P.) it encompasses contributory negligence of P. (there can be none!) The P has to be totally passive.   Guests: as in cars, assume risk of any defect and hosts assume duty to take reasonable care of guest in operating auto. ←  Causation: Was the D’s failure to meet that standard causally connected to the P’s harm: This is an essential requirement for both intentional and unintentional torts: D’s action must have been the cause of the tort. MUST BE PROVEN EVEN IN CASES OF NEGLIGENCE PER SE OR THE ACTION FAILS!!! o Two steps in analyzing this: You must prove actual cause before you prove legal cause. Otherwise you don’t have a case. Hypo: Columbus being responsible for the fall. There’s actual causation But legal liability is the line drawing problem: where do we draw the line. Too far removed, not proximate enough to impose liability. . 1-Were they the cause? Causation in fact or actual causation:  “But for” causation: NY Central RR v. Grimstad: even if you were able to prove negligence per se for violation of a statute, it’s still not clear that there was causation. Yes there is negligence but it didn’t make a difference. P cannot say that “but for” the negligence the guy would still be alive. Generally in medical cases you need to prove more than just the possibility of the harm happening because of D’s conduct: there could be several factors including genetics and other environmental causes that could have contributed to the harm and so you need to prove more than the possibility. If you prove but for cause, you have proven substantial factors. You can also prove But For causation for two defendants. Crash of the a,b, c, boxes on blackboard, if each B or C had not been negligent on their own, the negligence of the other wouldn’t have mattered. The fire hypo. Fire from the east, fire from the west, they both have but for causation because even if the other one had not thrown it , a fire would have started because you threw it! Knee defender case does not fall within it, because either act was not solely responsible on its own for the harm, you needed the confluence of both acts.  Substantial factor: [Only use this nomenclature for the actual cause analysis.] When you have 2 negligent defendants pointing fingers at each other, they sort of cancel each other out as far as But for causation, and it would end in injustice if we allow them to avoid liability. So this approach was created. Hypo of the rental car which was crashed because woman didn’t break in time but the brakes were faulty. So either factor was not the only cause and you cannot use But For causation. So you use this one because both factors were a substantial factor, although not the only one, in causing the accident. Knee defender case.  Miscellaneous burden shifting cases (Ken made this name up): random group of cases united by one thing: burden of proof is shifted to Defendant. Done when the sensible thing to do is to do this. Ybarra v. Spanger medical malpractice case fits here because it’s an exception to res ipsa where it makes sense to do it. Also the case of the missing lifeguard where the burden is shifted to D. These cases tell you that the cts are not just mechanically applying rules of causation but trying to be just. Sommers v. Tice hunting accident that causes injury to the eye. Negligence is proved, but not causation because there were two defendants involved! So can we use the substantial factor theory? No, because only one piece of metal hit him in the eye, but P doesn’t know which one! So it’s different from the “merger” of liability in the case of the faulty breaks.  Market share liability: DES case of Sindell v. Abbott laboratories. Too many labs were making these pills and we don’t know which one! So the Ps are out of luck, and thus cts. Determine this approach to determine amount of liability. So all the companies that produced and marketed the defective products are deemed defendants and are liable for its market share of the pills. . 2- Where do we draw the line? Yes, they were the cause, but where do we stop their liability? House A or House Z? Proximate causation or legal cause: [NOTE: It limits only what recovery can happen in a negligence tort, but never in an intentional tort. (if 26 houses burn down because you intentionally set the fire, then you are liable for it.)] This is only used to establish where the cutoff for liability is in negligence cases. ONLY IF P CAN ESTABLISH ACTUAL CAUSATION: BUT FOR CAUSATION and then you do the line drawing. So we need to find if the D’s conduct set off the chain of events and then do the rest of the analysis. [In exam, only if there is clearly no cause, then you don’t do this analysis. BUT even if you have no causation, go ahead an discuss the alternative: IF we had causation in fact, then this is what the analysis would be like for the proximate causation analysis…] Case of Ryan v NYCentral RR: but for the sparks from the RR, the fire would not have happened, so we have the actual causation. But how far removed do we want the liability? Houses a through z? The court decides that some factors affect the analysis:  What was foreseeable: natural and expected consequences.  Accidental circumstances beyond control of D: wind blowing beyond control of D.  Necessary and usual result This case is full of words and not very clear and confirms that really you cannot lay down a rule for determining what criteria to use for establishing where to draw the line. Court decides to cut off liability and P’s loses because ct considers that you have to insure your own house against fire. Policy argument. The hyperbole of destruction of civilized society! TWO APPROACHES: you would find out what that particular Jx uses.  Direct Causation: a DIRECT RESULT of the negligence. No remoteness in time, little in space (palssgraff). Resulted quickly and about in the same place. UNBROKEN SEQUENCE!. remoteness in time and space or lack thereof. If there is an intervening cause (mondavi’s fans spread the fire down to other houses!) then you may not find direct causation. The negligence had come to rest in a safe place and someone else kicked it alive. Polemis case: ship that burns down because the plank set off the sparks in the gasoline, etc. First question is are there foreseeable risks? And careful on how you describe the foreseeable risk? Method of the foreseeable damage or result of the foreseeable risk? The house burning or the house exploding are different things. But the house being destroyed, encompasses both of these. In Polemis the foreseeable risk was that something was going to get hurt with the falling of the plank (some damage of the ship), but not that it would cause a spark that would cause a fire and total destruction of the ship. BUT, in this case, the ct says foreseeability is not the limit in determining liability: since there was a foreseeable risk of damage, even if not that one, BUT it was a DIRECT RESULT of the negligence which was found because there was foreseeability of something happening. Cardozo likes this approach in Palsgraff: D IS LIABLE FOR ANY AND ALL CONSEQUENCES HOWEVER NOVEL OR EXTRAORDINARY! Ken doesn’t like this! He thinks it’s ridiculous. And it doesn’t make sense because Cardozo uses foreseeability to determine duty but not for determining causation! You would have reached a different result if you used the next approach. Some commentators say this is the majority rule in most courts. Others claim is reasonable foreseeability. Andrews, of course, favors this also in Palsgraff: remoteness in time and space (he says there was no remoteness in time and little in space) but that works because he also says that duty is owed to everyone, not just to the reasonable foreseeable victim. PP of Andrews is that what matters here is to compensate the victim if the D is at fault in any way. Very much like strict liability, although there is nothing intrinsically dangerous in the activity. So this approach would lead to more liability in the ship case, but less liability in a dram shop case.  Reasonable Foreseeability: damages are such as are the ordinary and natural results of the negligence charged and those that are usual and may therefore be expected. (back to foreseeability!). Forward looking: what was foreseeable from D’s point of view. It goes to Holmes’ ideas of only being responsible for what you chose to do, for what you can reasonable foresee. It also tells you how far down to go depending on how far down the defendant could see. California follows reasonable foreseeability approach. Makes sense because it holds you fairly accountable to the extent of the anticipated risks. So this approach would lead to less liability in the ship case, but more liability in a dram shop case.  Intervening Causes: (in both direct causation or reasonable foreseeability) Some additional input coming from a source other than defendant supersedes the input from defendant if it has sufficient significance.  If there is an intervening cause (mondavi’s fans spread the fire down to other houses!) then you may not find direct causation. The negligence had come to rest in a safe place and someone else kicked it alive.  Juries will probably decide this, especially in cases like intervening cause being a natural thing: rain, wind, especially cold winters, etc.  Intervening cause doesn’t break the chain when the intervening cause was for a good social cause (burning a field of corn to prevent the burning of a city.)  Intervening Criminal conduct, unless foreseen, breaks the chain.  Intervening negligence by third persons never breaks the link, because negligence is always foreseen.  Also, rescue doctrine: you’re liable to the rescuer for your negligence in the same way that you’re liable to the original victim.  Medical cases: What about the hypo of the car that runs over person and person is treated by negligent doctor? Policy is that you are indeed liable for negligence of doctor! Even though it goes against foreseeability and direct causation! Cts have been unusually generous to P’s in this case on both the surgeon being negligent and the ambulance being negligent. It sort of relates to the thin skull rule, where if you ran over a famous rock star, you end up paying more because of his earning ability, and who knew!? In this case, you were equally as unlucky for having a negligent doctor! But if the doctor-occasioned harm is divisible from the original harm, then it is apportioned, if not, D is responsible for 100% and doctor for whatever percentage but that’s for them to duke out at the end.  Car left with keys and then someone takes it for a ride and kills someone: goes both ways, depending on Jx.  IN statutory cases: Negligence per se? Defendant can defeat recovery in some cases when the wrong of a third person severs causal connection between D’s negligence and P’s injury. (DRAM SHOP STATUTES: giving alcohol to drunks and kids. If they use statute, they nail D. if not, the D’s argument often becomes that the link of causation is just too far removed. California follows reasonable foreseeability approach. And probably would look at statute, of course.

 Negligent infliction of emotional distress: is there a duty of care to avoid emotional distress of a P? separate from the duty to avoid physical harm or injury since negligence by default requires a harm. Is emotional harm enough harm? How do we prove it? Courts have had some problems extending liability to these kinds of cases for fear of “floods of litigation and/or exaggeration”. More validity for those arguments against this type of case when the behavior is negligent than when the behavior is intentional, because when there is intention you can clearly see the outrageous behavior on the other side. But in negligence you don’t have that! As with Intentional Infliction , it has its own damages. NOT parasitic damages ever. o Six categories appear: not all jurisdictions will go for all of these. . 1-Physical impact but no physical injury: many courts have said that negligent physical impact is enough for P to recover. The impact with P’s body is confirmation that something really happened that affected the P. Even slight. Many courts still insist on physical symptoms of the emotional distress. California insists on physical symptoms stemming from the emotional distress. . 2-No impact: Zone of danger. Near miss! More generous to the P. You need to be in close enough to being suceptible of physical harm. Must fear for her own safety. Dillon case of mom whose daughter is ran over by car and cannot recover. . 3-At Risk behavior: Toxic Torts. Applies principally to two kinds of exposures: products or environmental. Either ingredients in product or release of chemicals in environment. People are put at risk and they fear they will get a disease or die from it even if no symptoms have developed. DES on pregnant women and now the daughters are more likely to get adenocarcinoma and sue for NIED. Sometimes the damages given are that D needs to pay for the medical monitoring scheme or create a clinic or team to peform the medical monitoring of these people (so an injuction remedy, besides the financial remedy) . 4-Direct victim cases: no physical impact but information. Distress is brought about upon receipt of false information, usually regarding the status of someone else (he died, he’s sick, etc). Information conveyed to the intended recipient or at least a foresseable recipient. . 5- Corpse mishandling: causes great emotional distress to family members. . 6- Bystander recovery: Dillon case of mom whose daughter is ran over by car and cannot recover because she was not in zone of danger. Most important factor Foreseeability as for any other negligence standard. 3 factors to see whether D owed duty of care to her emotional well being.  Location near the scene (How is this different from the kind of upset suffered by a parent who comes in and learns of it even if he wasn’t there? This is the dissent’s opinion)  Whether it was sensory and contemporaneous observance and that’s what caused the emotional distress.  Whether victim was closely related. (but what kind of relationship would be “closely related”, is a question posed by dissent opinion.) In Thing v La Chusa, the court draws a line and says who is included (parents, grandparents, siblings and people who live in the same house). It adds another factor: as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness. So this assumes that it would be upsetting to everyone to see this accident, yet we have a higher standard if we’re to recover. What if there was contributory negligence from the kid and if it were a case from the child against D the child would lose? The ct. says the mother should not recover. This is called IMPUTED CONTRIBUTORY NEGLIGENCE and it is rarely used. ← ←  Vicarious liability: COULD APPLY TO INTENTIONAL TORTS AS WELL AND TO LIBEL, ETC. Respondeat superior. Agency doctrine. There must be an agency relationship: employer-employee. Whether the party for whom the work is being performed had the rights to dictate and control the manner, means and details of performing the service. Indpendent contractors are discussed in pages 391-392. Read 390-392. You have not read this! When can we hold the employer liable BESIDES holding the employee liable. It adds a defendant. Courts usually just use this when there is a commercial interest between the partners, not between husband and wife or friends, etc. Also can be had when there are partners in a joint venture. Many times the employer had told the employee NOT to do something and the employee does it anyway, the employer is liable, nonetheless: strict liability even when there is no culpability on the part of the employer. Comes up Not necessarily because the enterprise D can bear the loss better, but because they should not be allowed to disclaim responsibilities for accidents which are characteristic of its activities. Ira Bushey and sons v US. Liability found when sailor caused damage and in an occasion when it was remotely related to his job. o Motive test: was the action done in the scope of employment, was it done for the benefit of the employer, on behalf of the interests of the employer. o Location: where was activity undertaken. Detours are ok if within scope of employment. BUT if the guy was on a frolic (going to movies) and commits a tort, the employer is not liable. o Foreseeability; how likely is it that an accident happens by virtue of the kind of people you hire (sailors) or how intrinsically dangerous your activity is. So, it is a question of strict liability, because the ct. has to spread the loss, deep pockets help, it incentivates employers to monitor better and to hire carefully, and effectively holds liable someone who was not at fault at all! ← ←  The question of Transferred intent: Courts are generous to surprise victims in the case of intentional torts. Transferred intent assures that. Not so in unintentional torts. That’s still up for grabs!

 Defenses: o Plaintiff’s conduct: What significance is to be given to the P’s conduct that in conjunction with the D’s plaintiff has contributed to the accident and how do we allocate the money if there is harm but the P had some carelessness on his own part. . Contributory negligence. Not in res ipsa cases. One person being in fault will not dispense with another using ordinary care for himself used to be the law, historically, so P’s could not collect if they were conegligent, because we could not determine how much was caused by each. So, contributory negligence was a complete bar to recovery. Complete defense. Some states and Jxs STILL use this position! NOTE: RESCUERS WILL WIN THIS ONE! If you jumped on the train tracks to rescue kid, the D will probably not be able to defend by saying you were contributorily negligent, because of PP encouraging rescue and good Samaritan behavior.  Last clear chance doctrine: The party who last has a clear opportunity of avoiding the accident, notwithstanding the negligence of his opponent, is considered solely responsible for it. Alleged by p against the contributory negligence defense. You had it last, you had a second opportunity to prevent the injury and didn’t do it. Fuller v. Ill. Central RR. This is a transitional doctrine to get to comparative negligence.  Rest 479: helpless plaintiff o A P who had negligently placed himself at risk from d, may recover from harm if , immediately preceeding the harm . The p is unable to avoid it by being careful . The D is negligent in faling to utilize with reasonable care and competence his then existence opportunity to avoid the harm when he . Knows the p’s situation and realizes or should realize o The inantentive p can only recover IF: . The D knows the P situation . Realizes P is inattentive . Is negligent in avoiding the harm  Imputed contributory negligence: widely disfavored. You impute contributory negligence to the passenger in the car who crashed against you, if the passenger is related to the driver in a way that would create vicarous liability in the passenger, in order to defend against the passenger suing you for damages! (Joint enterprise rule) (hypo in class of the two crashing boxes when the employer and the employee are driving and crash into X and the employer [who was the passenger] and employer is barred from suing x because there is imputed contributory negligence against the employer) Also, british case of the omnibus passenger who gets off the bus not at the curb and gets ran over and cannot sue the omnibus that ran him over because his own omnibus was negligent in dropping him off the curb and by “chosing this conveyance” he identified himself with it and the same negligence should be imputed to him thus barring recovery because of contributory negligence. Generally not used. Also applicable but seldom used when harm is to a child and he was conegligent and liability is imputed to parents for lack of supervision. . Comparative negligence : it’s what applies now in the majority of Jxs.. . Assumption of risk: Very similar to consent in intentional torts. Knowingly and voluntarily exposed himself to a known risk. Not whether the p’s conduct has fallen below standard of care but whether he has deliberately and voluntarily encountered a known risk created by d’s negligence. One issue is whether this assumption trumps the expansion of the duty to warn. One who has knowingly and voluntarily confronted a hazard cannot recover for injuries sustained thereby. Volenti non fit injuria. Hinges on the Plaintiff understanding the risk he is being exposed to. Has now evolved into two: (try both at once):  Primary assumption of risk: Either D is not guilty of breach because there was no duty to act or if there was a duty, D has not breached it. Not an affirmative defense. It’s just a defendant’s rebuttal of a P’s prima facie case. Being hit with baseball in the game. P has burden of proof after this rebuttal. If D succeeds in this rebuttal, then he wins. Again Hypo of guy stranded in hwy: see below. He was under no duty to make the situation any safer “than it appeared to be” and, even if you think I was negligent, the passenger assumed the risk and was contributorily negligent in riding with me. I assume we can always sue him for negligence per se because he was violating a statute. PLEADING IN THE ALTERNATIVE: “Even if” arguments. You can plead both. Even if I was negligent, he assumed the risk. So you can plead both primary and secondary assumption of risk.  Secondary assumption of risk: Affirmative defense. D is guilty but P assumed the risk and thus liberates D from guilt. Being hit with baseball in game where there is a screen but screen was broken and ball got through; so by seeing the hole, the P is assuming risk. So we breached duty of care, but you assumed risk. The reasonable person would not have sat there, would have complained and taken some action to protect himself. P’s recovery would be reduced because he was contributorily negligent and with new rules of doing away with the all or nothing doctrine, he can recover something, even if not all. D has burden of proof. Hypo of guy who’s stuck on highway and gets a ride with a drunk driver. He assumes the risk and is contributorily negligent but it was probably the smartest thing to do.

 Assumption of risk can be done by contract, usually a clause of adhesion. Depending on who uses it, courts will uphold or not. Ayso, etc will probably be exculpated because they are good and volunteer ran. Gyms, will probably be upheld because they serve no social service and people go at their own risk. Hospitals and such will not have their exculpatory clauses upheld because they have so much more bargaining power than normal people. . Comparative contributory negligence : it’s what applies now in the majority of Jxs..not compatible with strict liability cases because there the D is liable regardless of fault.  Between P and one defendant:  Li v. Yellow Cab co. of CA. turned the state into a comparative negligence state. What effect should be given to the P’s contributory conduct. (just between P and One defendant, not several defendants). Court admits that the complete bar for contributory negligence is just not fair. The D could have been responsible for 90% of the accident and the p cannot recover! So the courts change that to make the allocation of liability possible. ALL Li tells you is to deduct the P’s portion of the negligence from his total recovery.  Pure comparative contributory negligence approach: you can recover as a P even if you’re more negligent than the D’s. Liability according to fault.  Modified partial comparative contributory negligence approach: you can only recover if your negligence is less than the D’s negligence. So in fact, it sort of keeps the bar to recovery for some cases and if you’re 49% negligent you recover but if you’re 51% negligent you don’t recover and that’s hard to identify and it’s, again, not fair because it hinges on a very small difference in fact finding.  How does this apply to assumption of risk and last clear chance: secondary meaning of assumption of risk is now one form of contributory negligence that will be treated under comparative approach. As far as last clear chance, the effect is that if the D had the last chance it gets factored in the equation of how big of an allocation he gets. So, in effect, it is not needed anymore since it was originally conceived as a way to eliminate the harshness of all or nothing liability.  What about wanton and willful conduct: read it.  Insurance concerns: instead of using set off rule (how much I owe you-how much you owe me, ) insurance companies have to pay all, lest they end up paying nothing!

← Multiple defendants:  Several or proportionate liability: each D is only liable for their proportion of the harm and they cannot be made to pay for any portion they were not liable for. Agrees with liability as per fault. BUT it increases risk that the P will not get the full amount in case of insolvency, flight of D, or any other collecting problems. Good for divisible harms.  Joint and several liability: P gets money from the defendants altogether: they are jointly and severally liable. The $9000 will be given to P from the D’s regardless of who gives what. P will get his money anyhow. As opposed to each party being liable ONLY from the D who owes it. So, each one of them is liable for 100% of the damage award (who’s available, who’s got the money). Puts the P in the drivers seat in how to get the money and how to execute it but he can use the courts processes to do that. Odd because it is at odds with the notion of liability as per fault. JSL is especially good for when the injury is indivisible: the same harm (the two D caused the broken leg and you can’t determine who caused more of the broken leg). If you have a broken leg and a broken arm, then you can have each defendant be responsible for their own harm caused. P will chose who pays and how much in Joint and several. Benefit is that P is compensated sooner and then the D’s are left to duke it out in the reimbursement fight. Procedural issue: do we bring in the other defendants into the original lawsuit, or do we sue them separately? Supreme ct of Ca said cross-complaints are allowed and you can bring them in, but we can leave the sorting out of the co- defendant’s claims on each other to the end after the P was taken care of. Another issue is settlement: what’s the impact of that on P’s remaining claim against the other D’s? if you settle for 2000$ with C, should B pay $7000 (the rest of the amount of the damage)? Or just $1000 which B was responsible for? Some courts have decided to dock the award by the amount of liability of C (80%) and some others have decided to dock it by the amount of the liability, thus leaving B stuck with a debt bigger than he really owes. Should the non-settling defendant collect from the settling defendant either through a contributory statute or an equitable indemnization claim? NO, because then what’s the incentive for settling in good faith? ON the contrary you’d be a fool to settle because it takes you out of court where you have a codefendant trying hard to ascribe liability to you when you cannot defend, and you will be required to pay anyway! So by PP once a good faith settlement is reached, you are exempted from any further liability from anyone. o Partial jurisdiction: P only recovers if his negligence was lower than the d’s negligence. o Pure jx: P recovers regardless of whether his fault was bigger or not than the D’s fault. But how much can P recover when you have a D who we cannot get into court? Do we compare his liability to the group or just to the group we have in court. In Li, ct says you compare to all the people involved. The court a month later revised the language to say “the parties” so we assume that means all the parties who are being sued. It confused things, so in American Motorcycle, the court clarified that it should be ALL TORTFEASORS whether or not joined as parties. o In California: we have joint several liability for economic losses. BUT for non- economic losses (pain and suffering) we have proportionate liability. So the money has to come from whomever caused the pain and suffering portion of it in the right proportions not in joint several liability. Proposition 51 made this possible in 1986 and the car manufacturers and city govmnts paid for the ads for this proposition so they wouldn’t be added to lawsuit’s big ticket items like pain and suffering, to fund the negligence of smaller people. o D can recuperate from other d’s by contribution or indemnization, but P needs to be able to get his money ASAP. It used to be that the law did not assist a tortfeasor in recuperating the other defendant’s portion of the payment to P. THERE WERE NO CONTRIBUTION rights. . But later, as legislators didn’t like the approach, they passed contribution statutes that ruled the rights of one D to collect from other d’s. The Ca statute divides the total amount of judgment equally between defendants, which is a rough justice statute because it may be unfair to the D who had the least amount of responsibility in the case! . Equitable indemnity: the employer who pays in vicarious liability for the whole thing, can get reimbursed by the employee who was at fault in the accident. Applied in very narrow circumstances as when the d was passive and the other was active, so the passive can get completely reimbursed by the active d. This was traditional equitable indemnity, IT WAS ALL OR NOTHING. In American Motorcycle the ct decides to modify the doctrine to permit indemnization from one party to the other in proportion of their liability. CA did it in the AMA case and a few states have done it. This sort of defeats the purpose of having a contribution statute on the books since no one would use that anymore. California, thus, makes it a partial equitable indemnity. o Unit Rule or aggregation rule: when P’s negligence is compared to the aggregate of D’s rather than to each defendant because the more defendants you have the lower the percentage of fault from each and the more the risk that P will end up receiving nothing if you compare his liability to the individual negligence of each defendant. So the incentive is created for each d to go out and get more co-defendants to eventually kill any award.

← III- Strict Liability: NOTE: you must also find causation here. Liability without fault, but not without causation. Otherwise you turn the manufacturer into an insurer if you don’t require a connection between the harm and the specific defect they were strictly liable for. So if we find cause, then usually we’re home free if we have the six factors in the restatement below. Traditional strict liability is what we now term liability for ultrahazardous or abnormally dangerous activities. It’s all about the shift of loss. I’ts more efficient to do this than figuring out who was at fault. We studied two areas:  Negligence per se: statutory, whether harm is caused by innocent, negligent or reckless conduct of a third person or action of an animal or a force of nature.  Assumption of risk: when P assumes risk of harm from this kind of activity, it totally bars recovery  Contributory negligence is no a defense as sated above, but contributory negligence in subjecting himself to the harm from the activity is a defense.  No thin skull: no strict liability if the harm would not have been caused by the ultrahazardous activity were it not for the abnormally sensitive character of the plaintiff’s activity.  Vicarious liability: where the employer is held liable for the employee’s action. Not applicable to wife-husband relationship. Has to do with foreseeable risks the D has brought into community (dry dock case of drunken sailor). Notion is if you bring the risks, you have to assume the costs if harm is done.  Dangerous activities: in Rylands v. Fletcher (landmark case in which new doctrine was adopted: so you need to use this more) (reservoir that ends up flooding neighboring lessee’s coal mines shafts) court decides that indeed you can be held liable even if you did everything reasonably. o Ryland v. Fletcher: before case, it was deemed that trespass had to be immediate and we don’t have direct and immediate harm in this case. It’s also not a nuisance because it was nothing offensive to the senses. So why not vicarious liability since the contractors were aware? Because they were not employees of the D! They were independent contractors, but it could have been solved by non-delegable duty doctrine vicarious liability (case of escalator in Puerto rico). But ct. takes case because there were several cases like this at the time in England. Rule of law: someone who brings on his land something that can do mischief if it escapes you keep it a your peril, because if it escapes you’re liable regardless of why. That’s from Blackburn, but then Cairns adds that it has to be non-natural, [artificial (man made) this would be too big an attack because it would paralyze any economy; inappropriate location, more than likely this is it. It was agricultural land and they were bringing reservoir to run a textile mill ]. So the activity itself is not dangerous, and there is no negligence, the activity has to pay its way. You need only strict liability in cases where the risk cannot be eliminated by the exercise of care. o Restatement : Stick to this restatement in your analysis in exams! Although the last one is very debatable. . existence of a high degree of risk to people or chattels of others . likelihood that harm resulting will be great . inability to eliminate the risk by exercise of reasonable care . extent to which activity is not a matter of common usage . inappropiateness of the activity to the place where it is carried . extent to which its value to the community is outweighwed by dangerous attributes o New restatement: Gets rid of the last two. . an activity is abnormally dangerous and subjects D to strict liability if:  The activity creates a foreseeable and highly significant risk of harm even when reasonable care is being exercised AND  The activity is not a matter of common usage. There’s some degree of impredictabilty so that makes it very frustrating. AREAS IN WHICH WE USE THE THREE THEORIES OF LIABILITY ← I-Product liability: Like Nuissance below, we can use intention, negligence or strict liability to prosecute product liability. Also a bit of warranty in the merging of contract and torts. Mostly, intention will not be used since people don’t make products to intentionally hurt the buyers (cigarettes notwithstanding). ← Factual Problems with products:  Manufacturing problem: the pepsodent hypo. Flaw case. There was a glitch in the process. Manufacturing defect. This product that harmed me was not manufactured the way D wanted it to be manufactured. Usually batches of products. There was a deviation from the plan.  Design: the plan itself seems to have caused the harm. Could be the contents, or the package.  Informational: warnings. Instructions for use were inadequate. Who can be plaintiffs? Who can be defendants? What type of harm? What aspect of the defendant’s conduct or of the product was involved in causing the harm and warrants relief? Theory of liability needs to be spelled out (negligence, strict liability, warranty) ← First area of liability for product liability:  Negligence: Winterbottom v. Wright: D contractor for postmaster general. He supplies and maintains coaches. P is driver for Atkinson who is a contractor for postmaster general and he supplies horses and drivers. Driver is injured and sues the contractor who supplies the coaches and is told he cannot because he doesn’t have privity of contract! This is ridiculous because the foreseeable victim was the driver and not the postmaster general. Hypo of who else can sue besides driver: recipients, senders of mail, passengers, bystanders, city, other merchants who cannot deliver their goods because rds. Are blocked. Where do we stop liability? Santa Barbara oil spill case. Should we ever allow recovery for someone who doesn’t have a physical loss in a case where there is loss to them due to economic dependency? The answer is usually no. Sometimes they have allowed recovery to the “water’s edge”. But mostly it has been denied to someone who has no physical harm. Cardozo in landmark Mc Phearson v.Buick: rules out that liability applies only to people with whom you have privity of contract. But he does it elegantly, but saying he’s still within the rule’s exception (inherently dangerous products by either manufacturer or seller or by owner who invites another to use it). So he says automobiles are inherently dangerous, puts them within the exception to the rule and proceeds to extend the exception so much that he swallows the rule! Lays out factors:  Knowledge of danger, not merely possible but probable: the more probable the danger, the more the need for caution.(hand’s test)  Knowledge that in course of events danger will be shared by more than just the original buyer of the product (dealer)  Proximity or remoteness of the relation needs to be considered: foreseeability of consequences creates a duty! So product liability is “created” by extending liability to products if there was negligence, it was foreseeable to the foreseeable victim. ← Then Traynor dramatically shifts the playing field as well with his concurring opinion in Escola v. Coca Cola Bottling where he lays out grounds for finding product liability( and later in Greenman he says the same thing and launches product strict liability). The majority resolve issue under res ipsa. Traynor says sure, but why even do a res ipsa if we can circumvent by finding strict liability and lays out his reasons to do so:  Loss minimization: company is in a better position to bear loses. They have more money and can insure. Also best position to make sure product is actually safe.  loss spreading: by raising prices so everyone pays, companies are better suited to bear losses.  Elimination of proof complications: why bother with res ipsa loquitur or suing the dealer who sues the manufacturer, if we can just hold the manufacturer liable for his products.  Foodstuff analogy: statutorially food producers are held strictly liable. ← Greenman v. Yuba Power A manufacturer is strictly liable in tort (not warranty or contract) when a product he places on the market knowing that it is to be used without inspection turns to cause a harm. Traynor’s opinion in Greenman is now the law in California. Plaintiff has to prove that product has a Defect in design or manufacture. Under this and restatement as well, you need to show causation: the defect caused the harm. Liability without fault, but not without causation. ← Restatment second: most influential path for strict product’s liability. Not universally accepted, but very accepted. Indicates not where the law is but where the law should be. ← ← In 402(A) ← Strictly liable to final user if there was damage to consumer or property:  Seller is engaged in the selling of product (manufacturer, distributor, etc) but not an occasional seller.  It is expected to and does reach the consumer without substantial change in the condition it was sold Even if seller has been careful in preparing the product and even if consumer did not buy the product from seller.

← Imposing strict liability on retailer makes the retailer an agent for the consumer and incentivates them to pursue the safest products from the safest manufacturer so that’s the rationale. He is also in the best position to extract from manufacturer an indemnity commitment (if retailer is sued, manufacturer pays retailer the cost of the lawsuit), so in effect it becomes liability by agency! (my comment). Strict liability as per 402 is imposed on retailer regardless of care.

← Defect is unreasonably dangerous condition which can cause unreasonable harm. Consumer expectations: product has to be more dangerous than the ordinary consumer would expect it to be. A product that is unreasonably dangerous because it is more dangerous than the consumer reasonably expected it to be then the product is defective, strict liability follows, provided we have the right type of P and D and causation. nd ← Bystanders: restatement 2 doesn’t address it but case law has allowed recovery to innocent bystanders who get hurt from product defects. Causation still has to be shown. The same policy reasons explained in Escola apply. ← rd ← Restatememt 3 . has gotten a very mixed reaction and confusing. Sets out the three types of defects: manufacturing, design and instructions but then talk about forseeability for the last two and that sure doesn’t sound as strict liability. ← ← Economic loss doctrine: set out in Seely and further in Casa Clara. Damage is to the product itself. Concrete was defective. The doctrine prohibits tort recovery when a product damages itself causing economic loss, BUT NOT personal injury or damage to other property. You can only recover in contract or something like that. ← ← Who can be a defendant? Who is a seller? Cafazzo case for defective mandibular prosthesis. Courts differentiate sellers of products from sellers of services. For some reason dispensing drugs, shampooing a hair and other things that seem more like a service than a case, are considered on a different basis. Most prominent are sales of blood products for transfusion. So when there is a provision of a service, strict liability doesn’t apply. Lessor, however, like hertz are strictly liable, sellers of used goods are taken out of strict liability categories, unless there is a reconditioning of goods. ← ← Product defects: Sears case of refrigerator that burned. Something in the manufacturing did not go according to design and plan. rd ← Restatement 3 §3 says something very close to res ipsa: ← May be inferred that a harm sustained by P was caused by a product defect existing at time of distribution if harm is the kind that ordinarily occurs as result of product defect AND was not the result of any other cause. ← ← P needs to show that the product was different form others of the same kind. Goes back to consumer expectations, which is a cousin of implied warranty of merchantability and specific use. All you need to prove is that this product was different from others like it. ← ← Design defects: when things go according to the plan but the plan is bad and created dangerous products. Some courts have struggled with what kind of liability to impose? Negligence or strict liability. In VW . ← To what extent should the law respect the market place and respect that some cars will be more inherently dangerous than others? Is it a job for the market, for the legislature or for torts? ← Two dominant approaches to determining whether there is a design defect: ← Consumer expectation approach. ← Risk-utility approach. ← ← Warranties: NOT FAULT BASED. MOSTLY LIKE STRICT LIABILITY. IMPLIED WARRANTY OF SAFETY. NOT LOOKING AT CONDUCT. JUST AT THE IMPLIED WARRANTY OF MERCHANTABILITY. mostly under K’s. Having to do with the express or implied assurances that a product will perform in a particular way. Implied warranty of merchantability or for a particular use. Usually the warranties also tell you how to make a claim for breach of the warranty. An overlapping issue with torts. It is a hybrid. The warranty means that the product will perform as any such product should perform. Shifts attention from conduct of defendant to quality of the product so D is liable. Henningsen: Guy who buys car from dealer for wife and she gets insured and sues dealer and manufacturer. But she didn’t have privity, her husband did. But clause that limits liability was unconscionable because it was not fairly bargained for or obtained. And because it had an implied warranty, she can collect. So now it goes to who put the product in the stream. This case eliminates as well the privity requirement for warranties. After McPhearson in rejecting privity in negligence, this case rejects privity in warranty. Mc Cabe: coffe maker that explodes case and he sues the dealer. It will not go on exam, so don’t talk too much about warranty if it’s in there. ← FOR EXAM: WHEN WOULD YOU NOT USE NEGLIGENCE ANALYSIS FOR A PRODUCT LIABILITY CASE? ONLY WHEN THERE IS NO EVIDENCE OF NEGLIGENCE (NEGLIGENT CHOICES ON PART OF DEFENDANT) TRESPASSER WHO GETS HURT BY USING A PRODUCT HE WAS NOT SUPPOSED TO USE AND THERE IS CLEARLY NO EVIDENCE. BUT STILL SAY YOU ARE NOT DISCUSSING IT BECAUSE YOU DON’T SEE ANY EVIDENCE OF NEGLIGENCE. ← ← Volkswagen: ← Crashworthiness: can a product be found defective because it cannot withstand a crash. ← ← An automobile manufacturer is laible for a defect in desgn which the manufacturer could have reasonably foreseen would cause or enhance injuries on impact, which is not patent or obvious to the user, and which in fact leads to or enhances injuries in the collsion. ← ← Rejection of the open and obvious test? ← ← Can the design cases be anything other than negligence, they are always matters of a choice. Everything went according to plan (no flaw)… your plan is bad, or your paln is dangerous. Your design for this product is making it more dangerous than the ordinary consumer would expect it to be. ← Strict liability is harsh because D made a choice, and it is difficult to assign liability when it was planned carefully. ← ← Larsen and Young sat that crashworthiness is good in any state. ← ← The Ds are arguing that this would cause that all cars be built with the utmost safety and there could be no tradeoff between safety and price (no convertibles, no cheaper cars). The policy argument is that the market would crumble here and who should be in charge of setting the safety standard. This is in the context of negligence. D could say we are not negligent for designing this van with this construction. Using the hand formula, the burden would be to take this car off of the market, and should the courts be able to force such a product off of the market. D could also use the assumption of risk case ← ← Can there be laibnility in negligence for a design defect if the danger is open and obvious: ← A manufacturer is obligated to exercise the degree of care in his plan or design so as to avoid any unreasonable risk of harm to anyone who is likely to be exposed to danger when the product is used in a manner for which the product was intended AS WELL AS and UNINTENDED yet, reasonably FORESEEABLE use. ← ← ← How to prove a manufacturing defect is dicta because this is not a manf. defect case, it’s a design defect case. ← ← ← Barker: ← Offers both of these theories as ways the plaintiff can prove ← Consumer expectations approach ← Risk Utility approach ← ← Linegar: nd ← Tries to apply the strict liability approach of the 2 restatement. ← We use consumer expectations test ← ← VW v. Young – refused to apply strict liability to design defect cases.  Sometime later the court determined that it could apply the strict liability approach to design cases. The point is that the court says that to look at the question of the design of a product is always to evaluate choices that have been made by manf. that we are not dealing with flaws or mishaps, we are dealing with choices. The Maryland court says that if that choice is made carefully then there should nt be l;iability. Design wuestions should always be negligence cases…courts are still grappling with this problem…is there are proper role of strict liability in design defect cases. The courts seem to be heading back to the fact that courts should view design defects as negligence cases. Explore the application of the two dominate ways aof thinking about strict liability in design cases   Consumer expectations approach to defining liability (402a)   Risk/Utility approach.   When they apply, what are the differences.   After looking at these, then remember that the courts are rejecting application of strict liability in design cases.   Bullet-proof vest case:  The court applies Missouri law saying we are going to used the consumer expectations approach and look at it from consumer expectations approach.  Court says that it is obvious of the limitations of the bullet-proof vest, obvious to the ordinary use of the vest. Obvious lack of protection so the consumer expectations are low and in this cases satisified because this provided the expected protection the consumer expected and that is enough.  The court said to respect consumer expectations is to respect the marketplace, it is not the place of courts or juries to set the specifications of design. The personal safety choices involve choices in design (strict liability to products designs raises the policy of to what extent should the court be telling the marketplace that the products they are using are not safe enough). There are several versions of the vest, and the comsumer makes the choice (more safe, more expensive, more imflexible)  If the limitations of safety of the product are obvious then the consumer expectations will be low and the manf. needs to satisfy those low expectations and nothing more.   The risk/utility approach might allow the court to say, that even though expectations are low, the court may still be able to apply strict liability because the risks that the product creates outweighs the benefit that the design allows. But there is a question of who sets the safety standard (the legislature or a govt body), or should there be a possibility of more demanding requirements coming from the judicial system.   Other cases in this chapter indicate, that some courts that address application of liability without fault, some courts have stayed with CE, others have used the RU test. Cali uses   Final, if you see product liability and you see defect of design, discuss both, recognizing that they may or may not lead to different outcomes. If you are in CA under Barker, then you get to talk about both of them. Either way you look at them, you have to consider both. ← ← Barker case: ← (UC Santa Cruz ← Answers the question that was not even touched upon in Greenman (first cases that adopted strict liability and it takes about defect, but there is no definition). Court attempts to give you definition of defect. Mainly about defects in design in loader ←  What is the approach to be taken to ascertain when there is a mnf. Defect. What does P have to prove to establish manf. defect (dictum in Barker). o A manf defect can be seen by comparing it to the other products that do not have that defect. o “Deviation from the norm test” – a manf. defect is readily identifiable because a defective product is one that differs from the manf. intended result or from other ostensibly identical units of the same product line. . Generally conceptually a piece of cake, but the difficulty comes in actually figuring out what happened. (the frige fire). ←  We could use consumer expectations approach, but we don’t like it. This comes back to the restatement 402.. ← ← Risk/utility: product embodies “excessive preventable danger”, if the risk inherent in the danger of the design outweighs the benefit of the design. ← ← 3 things wrong with the construction ←  jury could have construed that the defect have to be unresoably dangerous o If you put this to the jury, they are going to think that it is a tougher burden for P to overcome. The court is concerned that it is dangerous language. No language of unreasonable danger  Looking at defectiveness only in relation to intended use o Reasonably foreseeable use should be the standard. o This product was not to be used on sloping terrain, but it was. The guy who was using it was not the operator, this was a sub driver. This is a MISUSE (other than the intended use) of the product. The defectiveness needs to be looked at from the view of reasonably foreseeable use. o The design of a product should be undertaken with an eye towards foreseeable use of a product, rather than just intended (like the Young crashworthiness case). Not going to restrict recovery only to those who were injured in intended use  Court says we don’t like the consumer expectations test, it is not an adequate o People often do not know what to expect; or there may be very low expectations, but there are reasons why there should be liability. The court says there is some logic to CE approach, so they accept it as a floor. If the court finds that if the product meets the ordinary expectations, then there may be no defect. But the plaintiff may not be done yet. P can enter proof to enable the jury to evaluate the risk utility balance. o Not trying the case in two segments. P enters all evidence pertaining to both inqiuires and then the jury will be asked both questions. First is CE test, then the fallback is risk utility. ←  P has burden to show Consumer Expectation, but when it goes to R- U, P has to prove that the injury was caused proximately by the products DESIGN…that the design of the product proximately caused the harm…if that is proved, then burden is on D to show that utility outweighs risk. ← ← What goes into risk-utility: ← Utility - ← Feasible alternative:  Technically (there is no other way to design it to make it work for its intended use) ← Economically (too expensive to create ← Risks: ← I would have paid more? ←  Sounds like the hand-formula…looking at considerations that we look at in negligence to tell if something is unreasonably dangerous.  What is the difference between neg. approach and the strict liability approach. The issues are similar, but the court says that this is not negligence! Two things that suggest a difference: the burden of proof (we are not going to put all the burden on P, all they have to prove is causation- casual link is between the DESIGN and the injury, not the defect in the injury because there is no defect yet, that is what you are trying to figure out…focus on the casual significicance of the design…we are trying to figure out if there is a defect.  Other arguably difference “if through hindsight, the jury determines that the product’s design embodies excessive preventable .   Under negligence the focus would be on manf designs choices from its perspective at the time making the choices of the design (was this a reasonable choice to make). Arguably, the risk-utility is asking to look from different time and different view, the point is now. Knowing what we know now, from society’s perpective is it worth it to let these products go out with these designs. Is it worth it to society to let this product be in the market, knowing that we know what we know now without the manf. paving its way. ← ← Two dominate (look at pg 714) ← I. Consumer Expectiations (Warranty Heritage) ← Straight application to 402(A) unreaoanbly dangerous? ← Linegar & Halliday (straight out applications) ← ← There are some variations on this approach that have developed. ← I.A. State of the art defense  Only P to proceed on CE approach but to allow D to presnt a state of the art approach. P can prove liability through the product being more dangerous than expected, but D can claim that it was designed as well as that product could be designed at the time, and I did as well as anyone could and I ought not to be liable. Not only that D wasn’t negligent, but he was super careful in design (quite advanced). But it changes the case from strict liability, to negligence (its cutting back). Its like negligence but burden of proof on D. o I.B. CE for simple products, but R-U for complex products (Consumer ignorance beacue it is soo complex) (Potter). ← II. Risk-Utility approach (Neglgience Heritage) ← Wilson (burden of proof is on P) ← Barker (burden of proof on D, after P shows casual link) ← ← III. Risk-Utility is really just negligence (Third Restatment)  Has not been adopted and the question is who has the burden of proof? ← ← Courts still struggling with keeping going with strict liability. This is all about design defects ← ← In Linegar, would the risk-utility argument give you a different outcome? (Bullet-proof vest defective)? What is the first thing that you would do? ← Show that the there was an alternative design that was available that would have kept the product as it was. The utility of the design is diminished if there was an alternative design available, you could have kept it the same product. If there is some tweaking of the design that would have made a difference. Then maybe P could show that risks did outweigh the utility. ← ← ← Neglgience: ← If D could have designed safer, but would have lost 10% profit, jury could decide that’s not negligent. But in risk-utility, you are not going to give any weight to the profit because it is looking at it from a broader societal policy. ← ← ← Warnings: ← ← Hood v. Ryobi – ← Comment j case: the duty to warn arises when a useful product needs warnings in order to be safely used and it can be safely used if the warnings are followed. There are inherent dangers in the product and they are avoidable dangerous. Enables you to use the product safely. ← Mac Donald case: the product cannot be used in way that will eliminate all of the dangers. Comment k talks about the unavoidable dangers. Not enable you to use it safely, it enables you to make the choice that the risks inherent in using this product are worth the benefits to me. ← Removed safety guards ← Sometimes you cannot tell if it was a design defect, or if it was a manf. defect. You need to discuss both types of charges and what type of proof is needed. Sometimes you know that there is a design defect and warning defect, and they are not exclduive. ← ← Hood said that the warning failed to tell that if the guards was removed, that the saw blade would fly off. This issue is adequacy of the warning…should that even go to the jury? These are often close ones and it depends on the court and what the jury would find. ← The burden would be adding just one more thing and P says it is low. D argues it is high B because if there are too many warnings then people stop paying attention to them and the result is more harm than before (overwarning backfires). ← ← Could P view this as design defect, and what would his arguments be? ← P would have to show that ordinary comsumer expects more than the guards, or that an ordinary consumer would have expected it to work safely without the guards. ← ← Risk of product designed with removable guards outweigh the utility of that design. ← ← Either way, P faces a causation problem…he substantially altered the product. Causatiton is broken, because there is a substantial change. Foreseeable misuse does not count as a substantial change. ← ← 402A ← ← ← Comment j to 402A: directions or warnings  Fails to meet consumer expectations of warnings. Where warning is given it will be presumed as warned and heeded. P has to be able to say that had a had this information then I would not have been injured (this helps make the casual link).  Comment j. You don’t have to give a warning if it is generally known and recognized.  Baby inhales the baby oil. Is that something that is generally known and recognized, was it encompassed in the general warning? ← The duty to warn: warning about allergenics the product can be used safely if used according to directions or it’s easy to avoid the product ← Comment K: even with proper use, there are still risks, and you may not have an alternative. Ie. Medical products. Similar to informed consent medical cases. ← Under both comment j and k it’s all about the adequacy of the warning. McDonald case: are you targeting your most likely audience. Who should the warning go to. Medical doctor: learned intermediary. It is deemed that the doctor is the person to warn because the doctor has a duty to inform the patient and make sure they understand the risks. Also the doctors know the patient’s characteristics better. BUT the court rejects that. It sees the doctor as more passive (only sees patient once a year) so the court says the warning must be written and you must get it in the hands of the consumer. So depending on the condition or disease, either the doctor or the patient have to be informed. AS for content, didn’t say stroke and that’s what the consumer would understand better than blood clotting diseases. So it needs to go to the mind of the reasonably prudent person. But if you overinform, you overwhelm people and they don’t read it. Jury could have gone either way and the court would have upheld either. So this is an appropriate question to put to the jury. Also, in the case of vaccines, you run the risk of having people not take them that could benefit for them with a very low risk to them. ← Don’t forget causation in these cases. If there is a warning it will be headed, so if the absence of a warning caused the problem, you have causation. Just as with medical informed consent, you run the risk of the P lying about it and saying they would not have done it, so the court needs to decide whether a reasonable person would have done the same thing or would have not had the medication. ← All these are where the manufacturer knew of risks. ← ← Vassallo: ← Risks that manf. did not know about and could not know about at the time the product was made. Problems you could not have known about because there was no way to at the time. This is the most important problem in product liability: the UNKNOWABLE RISK PROBLEM. Asbestos problem. Mainly because the technology to identify the risks didn’t exist or the problem took a long time to develop. State of the art problem. AS to the knowledge and to the ability to identify risks. So should liability be imposed in this case? Courts have said yes! Manufacturer has a duty to risks known and unkown!!! In Vasallo the court reverses course. Liability under the implied warranty of merchantability is a strict liability approach, but since D did not know about and COUld not have known about the product they cannot be found strictly liable, BUT you can find them liable for negligence if the defect was researchable. Comment K has thus been deemed to apply negligence inquiry where the risk was unknowable. Court rejects true strict liability and has applied negligence. CA supreme court reached the same conclusion and vast majority of states have done the same. Good negligence stuff! But it then sort of does away with Escola and all the reasons why you want to impose liability on manufacturer. Mainly because they don’t want the tort law to impose undue harshness on medical research. Movement back to negligence and away from strict liability. But in manufacturing cases, strict liability prevails. Design defect is uncertain. ← ← PLAINTIFF’S CONDUCT AS A DEFENSE:  Just as with comparative negligence, a plaintiff who misused a product could be comparatively negligent in a case of standard product liability. But in cases of strict liability figure out: o Is there a defect? Product is not defective in the light of its foreseeable use not regarding this unforeseeable use. o No causal link between “defect” and harm. “defect” because it is “defective” as to this unforeseeable use. o Assumption of risk. P used the saw blade to trim his finger nails and knew the risk he was undertaking. o Contributory negligence: but if we’re talking about a D that we’re trying to hold strictly liable, how can we do this? Should the P who is suing under a strict liability be thrown out of court if he was careless in the act of using product? Court says no, it should just lower his recovery, so it uses comparative negligence! But the P’s negligence is compared to the D’s non-negligent strict liability. So contributory negligence IS a defense, but not a total bar to recovery.  In li v yellow cab: comparative negligence was established  In AMA a defendant was trying to recover from a fellow negligent d  In Daly we have a comparative P trying to recover from a non- negligent D who is strictly liable  In safeway, we have a negligent defendant trying to recover from a strictly liable defendant. Safeway wanted 50% from Nest-Kart even though Nest kart was only 20% liable and only under strict liability, so Nest Kart, relying on Daly, asks for apportionment and court assents to the 20%. ← ← Pre-emption: comes from the Supremacy clause of the Constitution saying that Federal rules over-rule state tort laws, especially when there is a statute that sets up what a product should be and that if a product meets those statutorial requirements a state should not be able to hold a product manufacturer liable. SO, if FDA was ok with it, why can they be sued. Back to legislative intent: what did they intend to protect. Did it mean they intended to pre empt state law? In Cipollone v. Liggett group, a smoking case, the court decided that there was already a federally prescribed warning label and if you meet it you’re ok, but other torts are still available for manufacturing defects, etc. ← ← ← ← V- Nuissance: Morgan v. High Oil company from orientation. D has done something in his land that interferes substantially with the P’s use and enjoyment of his land. Intent can be used, negligence can be used or strict liability can be used to prosecute nuisance! ← ← VI- Defamation: you have said something that has caused me harm, so you need to work with theories of liability: intent, negligence, or strict liability ← ← VII- Wrongful death and loss of consortium: in England, there could be no suit based on a tortiously caused homicide. But then legislatures responded and passed wrongful death statutes. They allow a representative of decedent to sue for the death. Each state sets the damages allowed. Survival actions are also allowed. Survival is decedent’s own cause of action for something that happened before the death. Bob’s case. Something happened that led to the death but it was not immediate. The survival statutes keep the claim alive. mama bear torts 17/08/2006 13:24:00

Intentional Torts: Intent defined as purpose or knowledge with substantial certainty. Prima Facie Case: o Intention (mens rea) o Act (actus reus) o Harm (not always needed) o Nonconsensual (consent given under duress is not consent) . Transferred intent usually between torts and persons (see exception in assault and IIED). Courts are generous to bystanders here. Not so in unintentional. ← Trespass: even if you find out later that it happened! (kiss when you sleep)  To person o Battery: . Intentional . Non consensual . Contact . Harmful or offensive . With another  Extras:  Transferred intent  No need to intend the harm, just the contact.  Offensive battery: contact with chattel  Remember failure to disclose in medical cases.  To property: o To land: . No need to intend harm. Liable anyway. Grass damage. o To chattels: intent to temporarily or permanently deprive another of use of his property. . Conversion if totally destroyed. Damages if not. ← Torts to protect dignitary and emotional interests

o Assault: . Intent to cause . Non consensual . Immediate . harmful or offensive contact . Or Reasonable Apprehension of such contact (even if there is no fear because P is bigger or expects passerby to help) . With another . P must be aware, or there is no assault! (duh)  Extras:  Transferred intent to other torts BUT to other people only when: o threat is to third person that is relative or o If not relative, there must be physical harm  Thin skull doctrine DOES NOT apply unless D knows P is susceptible to something.  Mere words don’t count.  By public policy: o conditional threats are still considered assault (bullying: ken’s hypo of the guy in the car asking him for money) o behavior is not acceptable. Or we want to prevent retaliation o False imprisonment . Intentional (negligent confinement carries no liability) . Confinement . Non consensual . Within limits set by D (four walls, not three) . By force (of any kind, or duress as long as apprehension is reasonable: Bo with mallet outside door) . Victim needs to be aware of it, as per restatement  Extras:  Transferred intent to other and other torts  Defenses: o Protection of life (school bus e.g) o Shopkeepers right to defend property when done reasonably and with reasonable cause. o Protection of property (laptop is impounded) o Parental exercise of discipline o Intentional infliction of emotional distress: HAS ITS OWN REMEDY. . Intentional . Outrageous or extreme conduct . More than negligence . Beyond boundaries of acceptable limits of society . Severe emotional distress or physical harm  Extras:  Intent only transfers if third person is relative or there is physical harm.  E.g: Strong arm tactics, bill collecting, outrageous professional conduct (MD does not see women), racial insults, sexual harrasment, practical jokes.

← DEFENSES TO INTENTIONAL TORTS:  Consent: in sex, if fraudulently induced, it’s overridden. o Implied o In fact (cunnard case) o Emergency rule, doctors and such o Minors and other incompetencies o Pari-delicto or volenti non fit injuria (no harm to volunteers)  Insanity: not a defense! Public policy.  Privileged defenses: o Self defense (Courvoisier) o Third parties (even during unkown arrest) o Property(spring gun) not so good. o Necessity: . Public: not liable. Complete privilege . Private: partial privilege. Get out of trespass but not out of the damage. o Chattels ← ← REMEDIES: for all except IIED  Nominal: when no damage. Trespass  Compensatory (most torts when damages)  Punitive: spitting guy. Public policy decision  Parasitic: ONLY as add ons when there is already a proven tort. Useful for mental distress (not as severe as IIED) ← ← Unintentional Torts:  Negligence: conduct that creates a reasonably foreseeable unreasonable risk. Evidence of subsequent repair not admissible in court. o 1-Harm or damage: remedies are NEVER nominal because there is always harm or damage, so only compensatory, punitive or parasitic o 2-Breach of duty: . Calculus of risk: learned hand test: B fork in law: higher standard: utmost care and very cautious. Ken thinks only ordinary care that changes with circumstances.  Custom:  Sometimes yes sometimes no. Medical cases mostly because judges don’t know medicine and go w/ custom.  Hand formula again determining if custom is enough.  4-Causation: Was D’s failure causally connected to the harm: o Causation in fact: actual causation. . But for causation . Substantial cause: independent causes that both contribute. . Burden shifting miscellaneous: shooting hunting case. Ybarra spanger. o Proximate causation: legal causation. . Direct cause: link of events not broken, even if unforeseeable. Polemis. Look for intervening causes that can be used by D as defense. Exceptions: negligence of third parties, dependant intervening causes (those caused by your actions . Reasonable foreseeable cause: wagon mound. Forward looking. As a D what can you foresee. Ca follows this. Defenses: . Intervening causes: after situation happens. If it existed before, it’s not an intervening cause. Thin skull rule.  Dependant causes: those that are foreseeable to happen if you cause an accident. You’re always liable.  Non dependant causes: storms, etc. acts of God.  Criminal conduct: usually not unless example of robbers. Page 448 Negligent conduct is always foreseeable so it seldom breaks causation page 448. Rest. 448 449



o In statutory cases: Dram shop statutes. How much should you be liable if others came between your act and the accident? Iffy. No real rule. Especially if link is too far removed. ← ← Statutory negligence: Negligence per se.  violation of statute.  legislative supremacy.  Creates presumption of negligence.  Rebuttable? If not, then directed verdict. If yes, then it’s only evidence of negligence: only if all elements, including causation are proved.  If statute places you below ordinary care standard, you’re liable  Statute may not give rise to private cause of action  Federal statutes above others and legislative above administrative office. Not elected.  Restatement: if the kind of accident the statute was design to protect against AND Person is protected person by statute.  Defenses: necessity, emergency, also, if he performs with due standard of care and does what a good doctor, ie, would do, then he may not be liable. ← ← RES IPSA LOQUITUR:  Only used in negligence, not other torts.  Circumstantial evidence only  Inference of negligence arises  Threshold issue: something happens TO someone who is passive o Must be of a kind that doesn’t ORDINARILY, NORMALLY, USUALLY happen w/o negligence of someone. o Must be caused by agency and/or instrumentality strictly within control of D. but in medical cases it can be stretched since the P will never have the information (he was under!) o It must not be due to any actions of the P.  Useful in cases where D has more information than P (medical)  Guests in cars: assume risk of defect and hosts assume duty to take reasonable care of guest in operating auto. ←  NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS. As with Intentional Infliction, it has its own damages. NOT parasitic damages ever! zone of danger cases. Negligent infliction of emotional distress: More validity for those arguments against this type of case when the behavior is negligent than when the behavior is intentional, because when there is intention you can clearly see the outrageous behavior on the other side. But in negligence you don’t have that! o Six categories appear: not all jurisdictions will go for all of these. . 1-Physical impact but no physical injury. Ca requires physical injury still. . 2-No impact: Zone of danger. Near miss! More generous to the P. You need to be in close enough to being suceptible of physical harm. Must fear for her own safety. Dillon case of mom whose daughter is ran over by car and cannot recover. . 3-At Risk behavior: Toxic Torts. Applies principally to two kinds of exposures: products or environmental.. People are put at risk and they fear they will get a disease or die from it even if no symptoms have developed. DES . 4-Direct victim cases: no physical impact but information. Distress is brought about upon receipt of false information. Information conveyed to the intended recipient or at least a foresseable recipient. . 5- Corpse mishandling: causes great emotional distress to family members. . 6- Bystander recovery: Dillon case of mom whose daughter is ran over by car and cannot recover because she was not in zone of danger. Most important factor Foreseeability as for any other negligence standard. 3 factors to see whether D owed duty of care to her emotional well being.  Location near the scene (How is this different from the kind of upset suffered by a parent who comes in and learns of it even if he wasn’t there? This is the dissent’s opinion)  Whether it was sensory and contemporaneous observance and that’s what caused the emotional distress.  Whether victim was closely related. (but what kind of relationship would be “closely related”, is a question posed by dissent opinion.) In Thing v La Chusa, the court draws a line and says who is included (parents, grandparents, siblings and people who live in the same house). It adds another factor: as a result suffers emotional distress beyond that which would be anticipated in a disinterested witness. So this assumes that it would be upsetting to everyone to see this accident, yet we have a higher standard if we’re to recover.  What if there was contributory negligence from the kid and if it were a case from the child against D the child would lose? The ct. says the mother should not recover. This is called IMPUTED CONTRIBUTORY NEGLIGENCE and it is rarely used. ←

← DEFENSES TO NEGLIGENCE:  Contributory negligence. Not in RES IPSA LOQUITUR.  Assumption of risk: o Primary: when you consent to lower standard of care. Risk was obvious. You don’t know that there was a breach. You go willingly into risky activity whether or not another person breached. Breach could have happened but you don’t know about it. Total bar to recovery. o Secondary: there is a breach and you know about it but you willingly and knowingly walk into it. Reasonable person would avoid harm. o Rescuer: . Defendant was negligent to person being rescued and thus to rescuer . Peril or appearance was imminent . Reasonable prudent person would have concluded it existed . Rescuer acted with reasonable care in rescuing. ← ← REMEDIES:  Never nominal because there is harm always in negligence.  Compensatory  Punitive?  Parasitic? ← ← Vicarious liability: ← Employer responsible for employee if working for the benefit of employer, and not “on frolic”. Employer can be indemnized. Employee has to be found negligent. Tests: motive (scope of work), location (frolic), foreseeability (drunken sailor) ← ← Strict liability:  Abnormally dangerous activities: Rest 519 o Liability is limited to the kind of harm foreseeable by the activity (mink farm). You have a duty to prevent the kind of harm you foresee. o and restatement 520 . High degree of risk to people or chattels of others . High likelihood harm will be great . No way of eliminating risk by exercising due reasonable care . Extent to which activity is not a matter of common usage. . Inapropriateness of activity to the place . Utility to the community of the activity o Defenses: . Assumption of risk. . Contributory negligence . No thin skull: not liable if person is abnormally sensitive. . Vicarious liability: Employer responsible for employee if working for the benefit of employer, and not “on frolic”. Employer can be indemnized. This is in case the strict liability arises from the scope of duty of the employee. Independent contractors do not hold employer liable unless 1-non delegable duty (Puerto Rican couple on escalator), 2- youhired a contractor without checking background ( negligent hiring), 3- inherently dangerous (ryland or blasting). Sailor issue: if you bring the risk to the community, you’re assuming the costs. Partnerships do create vicarious liability because of the joint enterprise. .Tests: motive (scope of work), location (frolic), foreseeability (drunken sailor)

 Product strict liability: Go for negligence first. If the fact pattern doesn’t say anything about the design or manufacturing and how it could have gone wrong, then, you go for strict liability. Sue everyone up the line. Broader than negligence. Also, bystanders can sue easily here. o Step 1: Rest. II 402 (A) : Greenman and traynor in escola. . Seller is liable if sells product in defective condition or unreasonably dangerous (consumer expectation test or risk utility test). Plaintiff can be unforeseen bystander. . Liable for personal harm and harm to property if:  Seller sells these kinds of things  It’s expected to reach and does reach consumer without alteration  Even if:  Reasonable care was exercised in both preparation and sale of product  No privity. . Comment j: avoidable dangerous: danger can be avoided if directions are followed. . Comment K: unavoidably dangerous: no matter what, even if you read directions, product is unsafe. o Step 2: To show defect unreasonable dangerous: either for manufacturing, design, or label. . 1- consumer expectation test: did not act the way a reasonable consumer would expect it to act. DO this one first. If this fails, and jx. Allows it, go on to risk utility analysis. Risk utility not to be used for manufacturing defect. . 2- Risk utility analysis: Mostly used for design cases because it doesn’t make sense to do this analysis for manufacturing defect.  is there a feasible design that could make this a safer product. Since P doesn’t have the info to prove this, you show that this product was actually the cause of your injury, then it shifts the burden to the D to show how there is no feasible way to make a safer design.  Modified hand test: was there a safer design? What was the burden?  1- probability of the risk  2- gravity of the risk  3- mechanical feasibility of an alternative  4- financial feasibility of alternative  5- adverse consequences to product and consumer of adverse design. o Then you prove causation the normal way. . Modified res ipsa: restatement 3rd, section 3: has the three definitions: manufacturing, design and label but burden of proof is on defendant. .  Strict liability is broader than negligence as far as who you can sue. Sue all of them up the chain, not just Rite Aid, because you can get money from all of them. Equitable indemnity by contract can then indeminize Rite Aid, but that’s not your problem.

Product liability under Negligence: o regular analysis. P can be bystander IF foreseen bystander. Otherwise, sue under strict liability. Defendant can be anyone up the chain but you have to find negligence. o Retailer: . No duty to inspect so it’s hard to get them on negligence. Some exceptions that may get Manufacturer off the hook because it becomes a superseeding intravening cause:  Irreputable supplier (imposes duty to inspect)  Recall and he still sold it  Knew of defect and still sold it  Selling products that he knows cannot be safely used by the consumer.  Hybrid: car dealers o Good one to use for design defect since obviously design was a choice. o Regular negligence not using tests, just the hand test.n o ← Warning must have: nature, scope, severity, avoidance. Nssa. baby Bear. Torts 17/08/2006 13:24:00

Intentional Torts: Transferred intent to torts and people  Prima facie: o Intention, Act, Harm, Non consensual  Trespass: o People: Battery: intention to cause non consent, harmful or offensive, contact, another or his possessions in proximity and contact occurs. Intention of contact, not harm. o Land: even if no harm o Chattels: intentional, permanent or temporary deprivation of property.  Torts against dignitary and emotional interests: o Assault: Intention to cause offensive or harmful imminent contact or the reasonable apprehension of such contact even if no fear and the other is put in such state. Mere words no ok. Conditional threats assault too. o False imprisonment: intentional confinement of another where Non negligent, and victim aware. Four walls. By force. o Intentional infliction of emotional distress: outrageous and extreme behavior. Severe mental distress of physical harm. If 3rd person: relative or physical harm. Has its own remedy

← Defenses:  Not insanity  Consensual: implied, in fact, emergency, infancy or mental incapability, pari delicto.  Privileged: Self defense, of thirds, of property (shopkeeper defense to false imprisonment if reasonable suspicion and reasonable means), necessity, parents discipline.

← Remedies: Nominal (if no harm), compensatory, punitive, parasitic (only if accompanying a proven tort. None of these apply to IIED.

← ← Unintentional Torts:  Negligence: conduct that causes a reasonably foresseable unreasonable risk. o Harm: o Breach: Standard of care: ordinary care. Beginners, experts, rich and poor, kids if harm to others, kids if self harm, kids under 5, common carriers, insanity (batwoman), custom (not if unreasonable or lower than ordinary care. Medical deference) o Duty: learned hand test . Affirmative only: legal not moral. Caused harm, assumed, may not prevent others. . Owners and occupiers to invitees, licensees and trespassers. (exeption for willful wanton and kids in attractive nuisance) o Causation: . In fact. Proximate. Statutory: (dram shop statutes) Iffy.  Negligence per se: statutory negligence: Presumption of negligence. If not rebutted, directed verdict. If yes, only evidence of negligence and other elements need to be proven (duty, breach, causation, harm) o Restatement: If accident of the kind statute sought to prevent and person is the kind statute sought to protect. May not give rise to private action  Res ipsa loquitur: o Inference of negligence. Rebuttable. o P has less info than D o Three elements: . Accident not usually happens w/o someone’s negligence . By agency and/or instrumentality that has been in exclusive control of D . Not due to any voluntary actions of P.

← DEFENSES:  Contributory negligence

← REMEDIES: Never nominal. Just compensatory, punitive and parasitic. 17/08/2006 13:24:00

← Occasion Apology Oppose Decision Suppose inadequate Suggest Supposed Committed Commit Opposition Assume commitment appropriate inappropriate

← interesting law review topics! 17/08/2006 13:24:00

← The equal protection misnomer: Equal protection is not possible under different systems of law per state and even under jury systems since depending on what jury you get you get a different result. Protection implies the result: you’re protecting from injustice. In our system as it works, we cannot make such a promise. Equal procedure better name.

← ← The case for Santa Claus: promissory reliance. ← ← Justice vs. Law: If law trumps, you want judges writing jury instructions , special verdict interrogatories and judges and deciding cases on the law while jury decides the facts. If you want justice, you need jury trials and you need general verdicts.

Load more

  85

Copy Link