INTENTIONAL

Battery . Intent to contact or substantial certainty that the contact will result from the action o If there is no intent, must be near certainty that it will be occur to be liable o If there is intent, liable . Contact occurs that is harmful or offensiveA . Harmful = unconsented to . Whether contact is or is not ordinarily to be expected under the circumstances (Vosburg) . : particular target of the defendant’s intentions is irrelevant Issues:

. Protects physical security, personal autonomy and dignity . Autonomy: Right to immunity from physical interference (Mohr) Cases

. Vosburg v. Puttney (kicking in classroom) . Garratt v. Daily (pulling out chair) . Mohr v. Williams (ear operation)

Assault

. Intent to cause a or threaten one . Puts plaintiff in apprehension of an imminent harmful or offensive contact o Apprehension = anticipation of contact o Imminent . Immediate in terms of time (not I’ll do it later) . Close in terms of space (not over the phone) . Actual rather than potential (not if… then…) . Not liable for extra-sensitive plaintiff if the making of the threats would not satisfy the demands of the of if made to a typical person

Intentional Infliction of Emotional Distress

. Extreme outrageousness of the conduct . Severity of the distress Issues

. Don’t want to radically expand liability; invite fraudulent claims . Difficultly of line drawing o What’s outrageous? . In tension with free speech . is not good tool for addressing this issue

Cases: Wilkinson v. Downton (falsely told woman that husband had been severely injured)

Defenses

Consent . If there is , the conduct is not wrongful o Actual consent o Implied (in fact) o Would have consented o No chance/unable

Self Defense . Must reasonably believe that the use of physical force is necessary to prevent or repel an attack or imprisonment . Objectively reasonable and honest mistake does excuse what would otherwise be tortious (Courvoisier – thinks police is robber) . Liable for injury caused by the use of unreasonable means or excessive force . Equivalence Rule: D is privileged to defend himself with an equivalent amount of force . Can use a certain amount of force to defend your property but not deadly (Bird v. Holbrook – spring guns)

Issues . “Benefited defense” can’t be accepted o different perpsective of what’s beneficial o only individual can say what’s best for themselves o right to immunity from physical interference o slippery slope of taking action to help when unconsented . Role of public policy o Hudson v. Craft . protect young men from exploitation . ct shouldn’t undermine policy . Purpose of SELF DEFENSE o Deterrence/harm prevention: might deter battery o Autonomy: shouldn’t have to allow oneself to be hit o Natural instinct: law sometimes must recognize natural instinct o Implicit consent: attacker has implicitly consented to the risk

Cases . Hudson v. Craft: A promoter (3rd party) is liable where he conducts boxing matches or prize fights without a license and in violation of the statutory provisions regardless of the rights as between contestants. The consent of the combatants does not relieve him of that liability. . Courvoisier v. Raymond: Self defense is justified when the circumstances are as to cause a reasonable man to believe that his life is in danger or that he is in danger of receiving great bodily harm and that it is necessary to use such force for protection . Bird v. Holbrook: Unless adequate notices are posted, a spring gun cannot be used to protect property

Intentional Injury to Property

Trespass to land to personal property

Conversion (stealing) . Breach of someone else’s real or personal property or interferes with right of possession . Actionable without proof of actual damage Issues

. Interference with right to possess and control property . The way people live their lives may be influenced, sometimes even protected by, their property – personal invasion

Defenses

Necessity . D has acted reasonably in damaging or destroying P’s property in order to avoid harm to himself or his property, but the risk of harm to P has not been created by the plaintiff Private

. When there is a risk to one party or his property only and this party can reduce or eliminate that risk by damaging or destroying someone else’s property . Strict liability: you pay for the damage even though you did nothing wrong o D is liable to P for the damage done to P’s property . Privilege is qualified/ conditional o Privilege is conditioned on the privileged party’s later compensating the other party for using the latter’s property . Should be proportionate to the need o Importance of the issue at stake Issues

. Sometimes you should be liable even if you did nothing wrong o Between two innocent parties, the one whom nature put at risk should bear the cost of saving himself or his property, rather than the owner of the property that does the saving . Role of choice: if you intentionally choose to save your property at the expense of someone else’s should you have to pay? YES . Example of strict liability: disconnect between doing the right thing and still have to pay . Fairness argument: Who should have to pay? o Person who benefited from destruction of others’ property o Person who chose to act . Consequentialist: Discourages trespass unless necessary o Strict liability won’t truly discourage someone from protecting their own more valuable property . Incentive argument: Incentivize helping others without worry of loss of property . Cost internalization: Balance cost of saved property vs. cost of damaged property o Incentive to compare the risk since you have to pay for whatever damage occurs o Threatening a party with liability gives that party the incentive to compare the cost of liability with the cost of alternatives that may avoid liability . Puts burden on the party in the better position to compare the risk Cases

Ploof v Putnam (D denied P use of safe mooring for his boat during a storm): Necessity justifies the entry upon the land of another Vincent v. Lake Erie (P sued for to its dock caused by D negligently keeping its boat tied to the dock): Public necessity may require the taking of private property for public purposes but our system of jurisprudence requires that compensation be made

Public necessity

. Strict liability should not apply o Privilege is absolute o Privilege of necessity is a compete defense to liability o D has the right to make use of P’s property without incurring liability for damage that results . When there is a risk to the property of a sufficiently large number of people to make the risk public and that risk can be reduced or eliminated by damaging or destroying the property of P INTENTIONAL INFLICTIONS OF EMOTIONAL DISTRESS

Rule . When a person suffered a physical harm that could be tied to emotional distress  generally accepted as actionable . When first step in the chain is emotional distress  harder to find liability o Even harder if there is NO physical manifestation of the distress . D has acted in a manner that intended to interfere with plaintiff’s peace of mind . Elements o Extremely outrageous conduct . Beyond reasonable bounds of decency o Severity of P’s distress . Duty not to risk emotional distress Purpose/rational

. Very limited doctrine o Certain kind of harm that tort law won’t help you with Technical Aspects

Issues

Evolution of the rule

. Impact rule: required physical impact on P’s body o Mitchell v. Rochester (frightened by horses is not enough) . Zone of danger rule: if P was in the “zone” in which physical injury was threatened, and feared for her own safety o Dulieu v. White & Sons . Dillon rule: 3 factor guidelines to determine foreseeability of emotional harm o 3 factors . proximity . visibility . relationship o Estalished in Dillon v. Legg . Bright line rule o Thing v. La Chusa o Treats Dillon guidelines as test

Fear of future injury

. D has negligently exposed P to risk of suffering future injury (i.e. cancer) . P is permitted under limited circumstances to recover damages resulting from fearing future injury o In most cases there is actual impact (drinking contaminated water) . D could be liable for the actual injury that the P fears will occur in the future, when and if it occurs

Cases Mitchell v. Rochester RR (pregnant P is frightened by horses pulling horse car, causing her to faint and ultimately to have a miscarriage): Proximate damages are ordinary and natural results of charged and those that are usual, and may, therefore be expected

. Impact rule o Older case  required actual contact/impact Dulieiu v. White & Sons (P gave premature birth after being nearly run over): Rejected Mitchell and established zone of danger rule

. Rejection of impact requirement o Don’t deny legitimate claims just bc there maybe false ones . Job as ct is to sort out true from false o Emotional harm has physical component o Rule doesn’t work b/c juries look for any slight physical harm to award for emotional distress . Zone of danger rule o Actionable if distress/frightened by what you think is going to happen Amaya (similar facts to Dillon v. Legg): Can’t allow recovery outside zone of danger

. Too hard to draw a line . Law cannot do this well so law should not do this

Dillon v. Legg (P saw her daughter get hit by D’s car): The zone of danger rule does not bar a recovery for negligent infliction of emotional distress where a close family member outside the zone views an accident causing an injury or death to another family member . Facts of case show why zone of danger rule doesn’t work. Although still accepted as rule in majority of jurisdictions . argument: entirely foreseeable/natural/expected that mother will be distressed upon seeing child hit by car o Reason that speeding is negligent is trauma to witnesses/loved ones . CT CAN draw lines: foreseeability guidelines . Accepting legitimate claims is important . Zone of danger rule is arbitrary and has no logic behind it o CONCERN: Ct’s guidelines in this case are more arbitrary . Zone of danger is actually that you can recover for what happens to you not someone else Thing v. La Chusa: Establishes bright line rule bc guidelines are useless . Rule o Closely related o Present at scene o Emotional distress STRICT LIABILITY (History)

. Have to pay even if you were careful Original Issues

. Fairness: innocent party shouldn’t have to pay o Actor has chosen his conduct . Deterrence . Incentive

Formative Cases

. Thorns Case (trespass to recover thorn bushes): Even an innocent trespass on land is actionable . Weaver v. Ward (militia and shooting practice): An actor is liable for injury directly caused by his act unless he can prove himself utterly without fault NEGLIGENCE (evolution from strict liability)

Response to strict liability . Re: fairness  what goes around comes around so just pay for your own damages o Kind of conduct that’s fairly reciprocal o People are acting sensibly o as likely to cause as to suffer . Re: deterrence  don’t want to deter people from doing what’s necessary with care . Encourage reasonable precautions . Purpose of tort law is to encourage people to consider the risks and make smart decisions about safety  If we hold people liable for random unforeseeable consequences then liability has no meaning . Threatened liability for carelessness will make you be careful enough . Cost internalization o Cost-benefit analysis . Is action worth it? . Role of risk Cases

. Brown v. Kendall (separate dog fight and D accidentally struck P with a stick): If in the prosecution of a lawful act, the injury was unavoidable and the conduct of the defendant was free from blame, then no action can be supported for a resulting injury o Can’t recover unless the person who injured you was not operating with due care  negligent o Role of ordinary care . Fletcher v. Rylands (P’s land was flooded when D’s reservoir leaked through an unknown abandoned mine) o Bramwell opinion: Where a party’s actions unwittingly cause damage to the land of another he is liable regardless of negligence . Right to be free from flooding  WRONG: we don’t want to hold people liable for random, unforeseeable consequences o Martin dissent: Injury to personal property is not actionable without fault/negligence o Blackburn: If a person brings anything onto his property which, if it escapes, might damage his neighbor’s property, he is responsible for all the damage that is the natural consequence of the escape . Rule is strict liability when you bring something dangerous on your property that can be dangerous when it escapes and causes damage when that happens  Limited strict liability  Should pay damages for probable/natural consequences  Should anticipate and guard against  take right precautions . Holmes essay: advocate of negligence o Strict liability only makes sense in some cases o Cases of reciprocity  negligence . What goes around comes around o Positive externalities . Dangerous but contributes to public good and not reciprocal in nature NEGLIGENCE (roadmap)

Negligence is the failure to exercise the care that would have been exercised by the reasonably prudent person under the circumstances Elements

. Duty: Duty to behave reasonably o Reasonable Person Test . Standard does not take into account personal traits because would be too difficult to draw lines for each individual case, need for community expectations of reasonable behavior, role of reciprocity . Limitations: children, handicapped, insane o Custom . Standard of industry helps determine duty but not conclusive except in medical  Standard not dispositive bc some cases where even standard is negligent  not reasonable care under the circumstances  In medical cases, jury is not in position to determine what standard should be o Negligence Per Se – statute helps determine duty o Calculus of Risk – whether to hold liable based on if the harm (likelihood of risk + magnitude of that risk) are greater than the cost of preventing the risk . Way of determining reasonableness . Breach: Breach of that duty o – can prove negligence on circumstantial when conduct would not have occurred unless there was negligence and you know who was in control of the “instrumentalities” . Cause in fact o Must be “but for” cause, and if negligent but hard to prove causation judges still will go out of their way to get issue to jury. o Can be multiple causes that wrinkle “but for” like two negligent causes, or indefinite causes but usually assign joint and several liability . Proximate cause o Proximate cause if causing that harm was a foreseeable result of negligent conduct . Liable even if intervening causes when those are foreseeable/harm that makes you negligent . Liable even if harm is worse than expected (thin skull) . Liable for full consequences: same time/place o Connecting proximate cause and duty depends on the nature of the harm . Harm . Damages

Defenses . . o REASONABLE PERSON Rule:

. Behave reasonably according to the circumstances o Doesn’t take into account personal faculty traits

Purpose/Rational . Doesn’t take into account personal incapacities or limitations BECAUSE o Administrative reasons: infinite level of gradations o Expectation: need for level of expectation from fellow man o Reciprocity: would undermine reciprocity . Shared ability to come up to a standard o Risk of and deception . Incentive to mislead jury about strengths/weaknesses Technical Aspects

Children . Held to adult standard for adult activities o Society expectations that participants in adult activities will be meeting adult standard for reasonable behavior Issues

Line drawing . Might be hard to draw a line, but even harder to go case by case

Cases Vaughan v. Menlove (haystack bursts into flames): The level of care is determined by what a reasonable, prudent person would do in the circumstances . Reasonable person standard is a jury issue: one that jurors were likely to have had experience and a confident opinion

Roberts v. Ring (old man driving hits boy who he probably should have seen): If one by his acts or omissions cuases injury to others, his negligence is judged by the standard of care usually exercised by the ordinary prudent normal man

. Holding old man to reasonable person standard . Different from child o Old person should know what he doesn’t know CALCULUS OF RISK

Rule: . When the cost of risking harm (probability)(magnitude) is greater than the cost of reducing the risk, the risky action is unreasonable. When the interest that must be sacrificed to reduce the risk (cost of safety precautions) is more than the risk of the harm (probability)(magnitude), then it is not unreasonable to take the risk o B(burden/risk)= P*L (probability of the harm of risk)(magnitude of harm) . liability depends on whether the Burden (B) (cost of reducing or avoiding the risk) is less than P*L

Purpose . To determine whether the conduct is justified based on societal demands, there must be balancing of social interest involved against the risk created by the conduct Issues

Economic dimension . Economics curve . The more you spend, the safer you become, but after a pt the increase in safety plateaus/becomes marginal . Want everyone to take the right of level of care o Interested in lowering total societal cost not who pays . Weakness of economic theory o Disregards the things that we can’t count/measure . If something has marginal social utility and marginal risk  risk that negligence rule won’t encourage you to take due care

Relation to strict liability . Unlike negligence, in strict liability you care about who pays because the conduct/system is not reciprocal o Doing the harm intentionally . Negligence and strict liability should BOTH lead to optimal behavior o Until you take due care  strict liability o At point of due care  no longer have to pay for risk, just the cost of precaution . Utility curve (frequency of activity) o strict liability: only do a thing when it’s still useful o Negligence world: once you take precaution, you don’t have to account for utility . How to decide? o Is it still dangerous even when you’re careful?

Untaken precaution . Cooley v. Public Services Co. (electric lines case) . Was there some precaution that was available, inexpensive and potentially effective? Uncertainty of jury behavior

. Will be too careful to ensure that you’re past the line Cases

Blyth v. Birmingham Water Works (extraordinary frost causes pipes to freeze and flood P’s property): Negligence involves the creation of an “unreasonable” risk, by act or omission, which a reasonable and prudent man would not create

. Not negligence because risk was very unlikely . Risk is a product of how likely + how big/bad . Risk = P*L

Eckert v. Long Island RR (P saves child on rr tracks but dies in the process): It is not negligent to save the life of another unless attempt to do so is either rash or reckless

. Not negligent to jump in front of a train to save child o Comparing cost to risk

Osborne v. Montgomery (boy on bike hits car handle and is injured. Jury is instructed to take into account whether the social conduct justified the risk): To determine whether a risk is acceptable, the

. We do not want people to be as careful as possible in an absolute sense, we want people to balance the social interest involved against the risk created by the conduct

Cooley v. Public Service Co. (severe storm caused electrical wires to fall on telephone lines causing loud noise in P’s ear): Where danger of two classes of persons cannot be simultaneously guarded against, only the most immediate and injurious risk need be protected

. P says D should have taken precautionary measures . D says that precaution would actually have caused worse harm to others

United States v. Carroll Towing (attendant of boat left it for 21 hrs, during which time the barge broke loose and sunk another boat): There is a to protect others from harm when the burden of taking adequate precautions is less than the product of probability of the resulting harm and the magnitude of the harm

. Learned Hand opinion CUSTOM

RULE . Custom is some evidence but it is not conclusive (dispository) o Evidence that you have complied is some evidence for D o Evidence that you have fallen short of custom is strong evidence for P o But still NOT conclusive Issues

. What if company sets its own standards? o Challenges . Company could adopt standard higher than custom, and ct wouldn’t want to disincentivize by holding to higher standard in liability . Could deter high standards if they could be used as evidence against you . Why would a whole industry lag behind safety standards? o Industry might not have internal desire to change . Monopoly  no incentive o Might not know what could be done . Epstein: Working relationship vs. no relationship o When there is a relationship between the parties, then defer to custom . Parties likely to know what they right standard is . Parties will work precautions into the deal to be most efficient . Assuming relatively equal bargaining power . Autonomy rule  parties no best . Consent arguemtn o When there it no a relationship  don’t defer to custom . Parties did not negotiate the terms  not in on the deal

Cases Titus v. Bradford (P was killed when broad-gauge boxcar that D had put on narrow- gauge tracked tipped off its truck): Ordinary usage rule . Custom = usual, custom way of doing business = due care (WRONG)

Mayhew v. Sullivan Mining Co. (D put hole in platform that P was working on in a mine. D argues that it should be allowed to present evidence regarding customary industry practices): “Custom” has no proper place in the definition of what constitutes ordinary care

T.J. Hooper case (Tugboat lost its cargo after it failed to receive warnings of an approaching storm because it didn’t have a radio.): Regardless of the custom of an industry or trade, D will be held liable if his actions fall beneath the standard of the average prudent man . Customary care CAN be due care, but it is NOT the test . Pt is not whether its customary but whether it’s an efficient, cost-sensible precaution

EXCEPTION: Medical Malpractice

RULE: Defer to what industry professionals say is standard of care . Standard of care: what jury determines standard of care is based on expert testimony PURPOSE/RATIONALE (why defer to drs?)

. Medical community has its own incentives to keep standards high . Complex: jury would struggle to reason out medical evidence . Plaintiff is a sympathetic party o Unfair to hold dr liable just because P is very sympathetic . No one would want to or afford to be a dr . Cost of seeing dr would be exponential . Strict liability wouldn’t work  harm could or would have happened anyway o Holding liable when they didn’t cause the harm o Problem with overdeterence  defensive medicine Technical Aspects

. Locality Rule o Cts used to hold that only a physical practicing in the community could provide testimony o Now increasing nationalization of medical standards o Two School doctrine/”Respectable Minority” . Non-compliance with a standard rejected by much of the profession is not malpractice, as long as complied with a school of through or practice followed by a respectable minority

Cases

Lama v. Borras (medical malpractice case): P alleged negligence on bases that D was negligient in failing to administer a conservative treatment program prior to surgery

Helling v. Carey (dr didn’t do glaucoma test on young patient) . Decision rejected by medical community: o Not negligent because test leads to lots of false positives, requires additional testing  expensive

CAUSE IN FACT

Rule . P has to prove cause in fact to have case o “BUT FOR” cause . but for the negligence you wouldn’t be suffering the harm for which you are suing . P would not have been injured absent the tortious conduct of D o enough evidence for jury to reasonably find that conduct caused harm . Substantial factor test: In cases where there is no way to know for certain what caused P’s injury o Requirement that it be more probable than not that but-for D’s negligence, the accident would not have occurred . Framework of cause in fact o One negligently causes harm  liable o Negligent but NOT “but for” cause  not liable o Negligent and MIGHT have caused the harm  in general P loses but some exceptions . Herkovitz . Can be complicated factual issue but not conceptual . There can be lot of “but for” causes o Just has to be A “but for” cause

Purpose:

. Impossible to compensate everyone that is put at risk by others’ negligence conduct o Need causation requirement . Expediency . Pt is to deter unreasonable behavior and give potential injurers the incentive to compare the amount of liability that they anticipate they will incur from taking a particular risk with the cost of reducing that risk by taking safety precautions o Causation requirement communicates to D in advance the scope of liability it will face Technical Aspects

Multiple Causes . 2 causes, each negligent, each sufficient but NOT each “but for” cause  still both liable o Two negligently set fires reach house at same time (Kingston v. Chicago & NW Ry) . Either alone would be sufficient to destroy house . No “but for” cause but still both Ds are held liable . Each was a substantial factor . Prefer overdeterrence to underdeterrence . 2 causes but only one negligent  liable o “but for” test not satisfied but still liable o Will slightly overdeter since it will give parties the incentive to take precautions against harms that will occasionally occur anyway because of a simultaneous non-negligent cause

Joint and Several Liability

. Definition o Each is liable to P as if he were the sole wrongdoer, responsible for the entirety of P’s damages o P is entitled to recover the full amount of his damages from either defendant . Purpose o Protection against insolvent D o Places risk of any D’s insolvency on the other D rather than P o Preferable for Ds to bear the risk that one of their number can’t pay its share . 2+ Ds who are each negligent and each cause separate harm o each liable o apportionment o when you can sort out who caused what . 2+ Ds who each act negligently with one indivisible harm  confluence of 2 conducts caused the harm o Joint and several liability . Several  can sue either one . Joint  D can collect from other Ds for their portion o Although neither alone would have been “but for” cause, there is no way to pinpoint the extent of D’s causal responsibility for P’s harm so joint and severally liable . 2+ Ds who act together negligently to cause harm  joint and several liability o purposefully conspire/cooperate

Indeterminate Causes . When P is clearly injured by tortious conduct but can’t prove which of several possible Ds was more probably than not the actual cause of his or her injury

Issues

. Fudging close cause in factually close causes  get the case to jury o Why? . Even if negligence possibly didn’t cause harm still seems more fair to charge party that was negligent instead of the innocent party . Problems with finding liability without cause in fact o Overdeterence: If held liable for things you do even if you weren’t wrong  deter people from doing useful things o Risk that people will take excess precaution  risk we can live with . Relation to burden of proof o Intersection of substantive law/procedure/evidence o What you have to show to prove your case . When negligence causes more likelihood of harm – Substantial Factor test o Reynolds v. Texas and Paciffic Ry Co (heavy woman falls while rushing up unlit stairs) . Harm could have happened anyways, but court held that if P proves negligence “greatly multiplied” the chances of the accident  causation . Role of expert testimony o Daubert v. Merrell Dow Pharmaceutical

Cases New York Central RR v. Grimstand (man goes overboard who doesn’t know how to swim, boat not equipped with life-preservers, man drowns): A negligent party is liable only for those damages, which were actually caused by his negligence

Haft v. Lone Palm Hotel (P drowns in pool where there is no lifeguard and no warning sigh): D is liable bc lack of evidence is D’s fault  failure to provide lifeguard . Circumstances shift burden of proof on the issue of causation to D . WRONG: shifting burden later rejected Zuchowicz v. United States (P says overdose prescription of Danocrine caused her to develop primary pulmonary hypertension): Where a negligent act increases the chances that a particular type of accident would occur, and such an accident does in fact occur, a court may conclude that the negligent conduct was the cause of the injury

. Clear that drug caused disease but NOT clear that overdoes (negligent conduct) caused the illness . Role of increasing chances o Increased the chances that a particular type of accident would occur and mishap of that very sort did happen  enough to get the case to jury o Kind of reasoning suggests that proving negligence tends to prove causation at least where an act is negligent precisely because it greatly increases the chance of causing harm

Daubert v. Merrell Dow Pharmaceuticals (Bendectin alleged to cause birth defects): Rejected traditional Frye test allowing only expert testimony that had been “generally accepted” as reliable by the scientific community . Issue of expert witnesses and standard of admissibility of expert testimony . Ct specified the standards that the trial courts should employ to exercise their “gatekeeping role” in ruling on the admissibility of scientific expert testimony o Take into account not only general acceptance of theory but also whether the theory has been tested, peer reviewed, published

Kingston v. Chicago & NW Ry (sparks from a train united with a fire of unknown origin to destroy P’s property): A party causing a fire which unites with another man-made fire is liable for all damages caused by the united fires

. Distinguish from naturally caused fire (not negligence) Herskovitz v. Group Health Cooperative (P dies of lung cancer after his chances of survival were reduced by D’s late diagnosis): D’s conduct that increases the risk of death by decreasing the chances of survival is sufficient to take the issue of proximate cause to the jury

. P was more likely than not to die regardless of delayed diagnosis . Chances of survival are reduced by the negligent actions of D but already only 39% chance of survival . Can’t say that but for D’s negligence P would more probably than not have surived . Ct still says there can be a recovery, liable for reduction in P’s chances of surviving . Different from Zuchowitz because harm would have happened anyway . Lost Chance Cases o Want damanages for loss of full life not just the shorter lifespan compared to early diagnosis . Don’t compensate for risk . Issues o Deals with situtation where D is never liable because he is recurrently negligent but his negligence is never more probably than not the cause of P’s harm . If no liability for drs whenever patient is more likely to die than not:  No incentive to be careful with fatal patients  Under-deterence for drs with patients less likely to surive o Dr would get off all the time . If liability anytime they reduce chance of survival  over- deterrence . Prefer a little overdeterrence to under-deterrence o “Chance has value”

Sindell Case (daughters of women who took DDS while pregnant, got cancer in adult. Allege manufacturer of negligence for not manufacturing but don’t know which manufacturer): Market share liability

. Market share liability o Pay percentage of damages corresponding to your share of the market o No individual P can identify which manufacturer produced the DES that her mother had taken . Only works in very specfic type of cases o Has to be disease that could only be caused by this one drug (factor o Chemically identical substance produced by different Ds o Available market share data . Concerns o Usually not possible to sue all possible defendants . Some have gone out of business, etc o Wrong is not necessarily corrected by party who wrong the plaintiff o Not clear which is the relevant mark: national, state or local? . Benefits o Deterrence: each D pays what it should

Summers v. Tice (2 hunters negligently shot in P’s direction and shot shot struck P’s eye, who sued both hunters): When two or more persons by their acts are possibly the sole cause of a harm, and P has introduced evidence that one of the 2 persons is responsible than D has the burden ofproving that the other person was the sole cause of the harm

. Each D was as probably as not the but-for case of injury but not more probably than not the cuase . Ct: burden shifts to each of Ds to disprove that he had caused the harm PROXIMATE CAUSE

Rule . Connecting proximate cause and duty depends on the nature of the harm o Palsgraf (foreseeability of the harm to the person actually injured – duty to who matters) Purpose

. To only impose liability in cases where it will meet the purpose of tort law: encourage caution and incentivize people to do the right o Liability at some point would just be pointless  when harm is too remote . Limitation on the scope of liability

Technical Aspects

Intervening Causes – subsequent acts of independent 3rd parties or forces are the immediate cuase of the harm that results from the original negligence of D

. Doesn’t prevent liability if the intervening conduct that caused the harm was the type of conduct that made you negligent . Role of foreseeability o P’s reaction to danger/negligence is foreseeable and actually the harm that negligence risked . Wagerner v. International Ry (P tries to rescue cousin in train accident and is hurt) o Harm is foreseeable even though caused by 3rd party  liable . Brower v. New York Central (thieves steal from cart that train hits when P is too disoriented from crash to protect belongings) o If not foreseeable  superseding cause  not liable . Role of intentionality o If 3rd party acts with intentional malicious and in an unforeseeable D not liable . Watson v. Kentucky bridge (employee lighting gasoline leak) . Can’t reasonably anticipate malicious crime

Full consequences

. D if negligent, is liable for the FULL consequences of the negligent act o Marshall v. Nugent (P hit when directing traffic due to D’s accident) . Unforeseeable manner of harm o Union Pipe v. Allbritton (factory fire case)

Foreseeability test . RULE: Proximate cuase of the harm if causing that harm was a foreseeable result of the conduct . P’s reaction to danger/negligence is foreseeable and actually the harm that negligence risked o Wagerner v. International Ry (P tries to rescue cousin in train accident and is hurt) . Harm is foreseeable even though caused by 3rd party  liable o Brower v. New York Central (thieves steal from cart that train hits when P is too disoriented from crash to protect belongings) . If harm is way worse than expected  liable o In re Polemis (P drops plank which causes ship to sink) . Spark could not reasonably have been anticipated from falling of the plank, though some damage to ship might reasonably have been anticipated o “thin skull” rule . Purpose  Practical concerns: P would have to prove what a normal amount of injury underthe circumstances would have been  Desireable kind of strict liability: D should be taking into account thin-skulled P o Promote optimal deterence . Unforeseeable plaintiffs: Whether the harm to a particular P or class of those in his position was a foreseeable result of D’s negligence o Palsgraf case . Are these the type of risks we want D to take into account in deciding whether to undertake conduct

Coincidence v. Causation

. Not liable when harm is coincidental and not the type of harm that made conduct negligent o Berry v. Sugar Notch (speeding and tree falls) o Train misses station, P stays in hotel that catches on fire

Issues

Why is remoteness/proximity a concern?

. Line-drawing problem: where do we draw the line . Fairness argument . Burdensome: No one could support liability for negligently burning down a whole city Why we need to draw a line . Need to rule out unforeseeable harms o If really unforeseeable/outside control  tort law no place in that context o Liability for unforeseeable harms won’t encourage reasonablness or punish carelessness. Doesn’t meet the purpose of tort law o People can more cheaply efficiently insure ourselves . Stuff happens to everybody o Purpose of negligence liability is to do some good, encourage caution and incentivize people to do the right thing . At some point liability would just be pointless  when too remote

Cases

Ryan v. New York Central RR (P’s house was destroyed by a fire which started when a spark from D’s train engine ignited a wood shed. The fire spread through several house before reaching P’s): Damages can be awarded only when the injury is immediate and not the remote result of D’s negligence

. Old case and holding is probably wrong – Holding that only owner of shed could recover . But addresses the concerns connecting liability and causation

Berry v. Sugar Notch Borough (While driving over the speed limit P was injured when a tree was blown down and feel on the roof. P argued D was negligent in not cutting down diseased tree.): A persons right to recover for injuries caused by the negligence of noather is not automatically precluded because he was violating some ordinance at the time he was injured. . Distinction between causation and coincidence . What is the relation between the negligence and the harm? o Falling trees is NOT the risk that speed limits are designed to protect drivers from o Speeding didn’g increase the risk of the accident

Cases where train leaves P in wrong place . Train leaves P in wrong place and then P is sexually assaulted on walk home  liable o The harm (risk of assault) is the reason why you’re not supposed to leave passengers in the wrong place at night . Train misses P’s stop and takes her to a hotel to spend the night which catches on fire from a kerosene fire  NOT liable o Coincidence o That’s not the reason you’re not supposed to leave people at the wrong station Brower v. New York Central & HRR (D’s train hits P’s cart at a crossing. The stunned driver was unable to prevent bystanders from stealing items that the cart had been carrying.): A negligent party is liable for harm caused by the intervening acts of a third person if that person’s acts should have been foreseen . Intervening cause issue o Intervening cause is foreseeable and one of the harms that makes conduct negligent Wagner v. International Ry. (P’s cousin was thrown from train car. P went searching for his cousin’s body and was himself injured.): A party whose negligence has caused harm or the risk thereof is liable to all persons who are injured in the course of reasonable rescue attempts.

. Rescue is the foreseeable conduct and injury to rescuer IS the harm . “Danger invites resuce” Watson v. Kentucky & Indiana Bridge (tank containing gasoline derailed, leaked gas, and disgruntled employee threw a match on it): If 3rd party acted maliciously then D is not liable . D can’t reasonably anticipate malicious crimes

In Re Polemis & Furness, Withy & Co (P dropped a plank into a hold where benzine was stored, causing the ship to burn entirely and sink.): Once the negligence of a party has been established, he may be held liable for all the consequences, foreseeable or not, of his conduct . WRONG: foreseeability does not matter . 2 right principles o Don’t get off the hook just b/c harm is worse than you expect o Distinction between tort and

Palsgraf v. Long Island RR (P was waiting on train platform and injured when RR employee helped a passenger aboard a moving train, josting his package, cauting it to fall on the tracks. The package, containing fireworks, exploded causing a shock which tipped a scale on P.): The risk reasonably to be perceived defines the duty to be obeyed

. Cordozo opinion: Question is not proximate cause but duty/breach o Negligence is a term of relation  negligent TO someone . Subjecting someone to unreasonable risk . Relationship must be based upon the foreseeability of harm to the person who is, in fact, injured o Not the kind of harm, the foreseeability of which makes the conduct negligent . There must be a duty to the injured party that could have been averted or avoided by observance of the duty . The risk reasonably to be perceived defines the duty to be obeyed . RR did owe duty to P to exercise reasonable care to avoid riskin foreseeable injury to her, but since as amatter of law no injury to her was foreseeable, that duty was not breached. . Andrews opinion: Negligence is itself a wrong o Each person owes a duty of due care to society at large

Marshall v. Nugent (P was struck by a car as he was attempting to warn oncoming traffic that D’s truck was blocking traffic. P argues D is negligent and D argues that negligence was not the proximate cause of the injury): D remains liable for the full consequences of his negligent act when the intervening force is one which a reasonable man would have foreseen as likely to occur under the circumstances

. Foreseeability is a jury issue . Full consequences: As long as P was injured at roughtly the same time and in roughly the same place as was foreseeable, it is not necessary that the precise manner in which injury took place have been foreseeable

Union Pipe Co. v. Allbritton (Fire in factory, and after extinguished P falls walking on pipe rack that was wet from fighting fire)

. Majority opinion says injuries are too remotely connected to fire . Dissent: The forces generated by the fire in question had NOT come to rest o Emergency situation was contiuing NEGLIGENCE PER SE

Rule . unexcused violation of a statute desgined to promote safety is negligence per se (negligence as matter of law) o Is this the calss of persons that statute protects? o Is the the kind of harm against which the statute was intended to protect/guard

Purpose . Why defer to statute? o Issue has already been thought through (by legislative body) . Use standard to establish appropriate standard of care NOT create claim . Statute can determine that there IS legal duty o Factual question of how safe you have to be . Highlights connection between duty, proximate cause and harm

Technical Elements

Excuses . Necessity (Telda v. Ellman) o Compliance with statute would involve a greater risk of harm than violation

Examples

. Leaving keys in car cases o Harm is real: when given opportunity  thieves steal cars  reckless driving  cause injury o If harm that came about is the same harm that the statute intends to protect then lack of proximate cause is not a defense . Dram shop cases (providers of alcohol) o Statute: bars shall not continue to sell alcohol to visibly inebriated clients o 3rd party injured by drunk driver and wants to argue that stuate helps case . Argument for bartender: real cause is the drunk driver not bar  Sets standard for shifting blame  Encouraging litigiousness  Symbolically bad  Unfair: Difficult and burdensome on the bar  Other tools to enforce the statute other than tort law  Would overdue cost internalization: charging them for harm that would have happened anyways . Argument for P: statute was designed for exactly this purpose o All relates to legal duty: is this a good thing for tort law to deal with?

Cases Telda v. Ellman (walking on far right hand side instead of left hand side required by statute)

. Statute which codified custom should be understood as including exception that was part of that custom . Defense = compliance with statute is more dangerous than non-compliance . Look to statute to establish standard if harm was the kind against which the statute was intended to guard against Brown v. Shyne (P became paralyzed after chiropractic tratment by D, who was unlicensed): A licensing statute intended to protect the public against incompetent practitioners creates no liability against an unlicensed practitioner unless he is in fact shown to be incompetent)

. Not liable unless breach (failure to comply with standard) was the cause of the harm . If breach is not getting license before practicing skilled chiropractory  no action RES IPSA LOQUITOR

Rule . Doctrine confirming that circumstantial of this particular sort will support a jury verdict that D was negligent in some undetermined way . Requires: o Something happens that doesn’t usually happen unless someone was negligent o Instrumentality was under the exclusive control of D (Colmenares Vivas v. Sun Alliance Insurance Co) . Some evidence of who was negligent . Short hand for simple rule of circumstantial evidence

Purpose . Helps P deal with stonewalling (where P clearly doesn’t know what happened an D probably does know  anesthesia case) . Helps P get to a D that they can find and indentify . Forces D to speak up (although NOT technically shifting burden of production) o Incentivizes D to come up with explanations

Examples . Hotel cases o Chair thrown out of window . Accident does not equal evidence of negligence because hotel can’t control guest behavior o Guests partying at hotel . Accident is evidence because hotel is responsible for guests Cases

Byrne v Boadle (While P was walking along the street, passing D’s shop, a barrel fell from the shop window and struck P): When it is highly probable than injury is due to the negligence of D, and D has better access to the evidence concerning the injury, the doctrine of res ipsa loquitur creates an inferences that D was negligent and puts the burden on D to introduce contrary evidence

Colmenares Vivas v. Sun Alliance Insurance Co. (P suffered injuries while riding an escalator insured by D): The control requirement of the doctrine of res ipsa loquitur is satisfied where the defendant is ultimately responsible for the agent or instrument causing the injury

. Issue of exclusive control o D tries defense that he was not the only one responsible for maintaince . Issue of respondant superior o Employer is responsible for negligence of employees . Indepdent contractors: not liable except for non-delegable duties  public holds you responsible for safety . Because its their escalator in their building that’s used by the public, D is in exclusive control and has duty to maintain

Ybarra v. Spangard (P is put under anthesia for surgery for appendicitis and awakens with shoulder pain  developed paralysis. But P doesn’t know who involved in the surgery is responsible): Res Ipsa should be treated as a simple rule of circumstantial evidence and can be applicable in this case

NEGLIGENCE –DEFENSES

Contributory Negligence Rule

. Failure of P to exercise reasonable care to protect himself or his property from the risk of harm . D bears burden of pleading and proving the facts necessary to support the defense o Must prove that conduct was negligent and that such conduct was the cause-in-fact/proximate cause of the injury o Attempts to prove P breached a duty to himself

Purpose/Rationale

Why does the rule make sense?

. Fairness: all or nothing because hard to divide up fault o Unfair to give all the fault to someone who wasn’t entirely at fault o Misbehaving yourself, you shouldn’t be abole to complain about someone else . Encourages good behavior (deterrence, cost-effective precautions) o COUNTER: going to look out for yourself anyways . Reciprocity implies social contract – that others will be acting reasonably too

Cases Butterfield v. Forrester (P was riding very fast on the road, did not see pole D had put up and ran into it): A plaintiff wil not be able to recover where his lack of due care contributed to the occurrence of the accident . If P hadn’t been speeding the harm probably could have been avoided  speeding was a cause of the accident Beems v. Chicago, Rock Island & Peoria, RR (P, a brakeman, died in accident when his signal to slow train down was disregarded. D argues that P was contributrily negligent in attempting to uncouple the cars while the train was moving at an usual rate of speed): The lack of contributory negligence on the part of the plaintiff renders the negligent defendant completely liable

. P had reasonable expectation that they would slow the train down on his signal o Can’t be negligent  right to expect people will behave reasonably

Gyerman v. U.S. Lines Co. (case of negligently stacked sacks. P injured while unloading sacks which he knows are unsafely stacked): Contributory negligence is conduct on the part of P which falls below the standard to which he should conform for his own protection, and which is a legally contributing causal connection with the negeligence of D in bringing about P’s harm

. Judge finds P negligent in failing to stop work in the face of a known danger o WRONG: defense usually rejected for employee/employer because you can’t expect employee to stop working . No choice Exceptions

Safety Statute . Many courts hold that when D’s negligence consisted of the breach of a statute designed specifically to protect a class of persons unable to protect themselves against D’s negligence  contributory negligence of a member of the protected class is not a bar to recovery . Scaffold Law cases . Scaffold law designed to protect workmen who by their employment must use ladders and scaffolds . Small piece of strict liability o Protected class of people o When there’s a statute with the purpose to protect a class of people vulnerable to expoitation, we’re not going to let you off the hook for succeeding in exploiting them o Statute trying to solve a social problem ct shouldn’t undermine . Social problem: easy for employer to convince people to take dangerous jobs o This is the kind of harm the statute was designed to prevent Custodial Care Cases

. Padula v. State (poisoned Tang case. Door negligently left unlocked to Rehab’s printing room. Inmates mixed ditto fluid with Tang): Held that actions done under an irrestable impulse, even without specific proof of a mental disease, do not sever causal connection o Hesitancy to grant “contributory negligenc” defense in these cases . Not negligent  no control o If the very risk we decided made an action negligent happens  no contributory negligence defense Comparative Negligence

Rule o Doctrine whereby the court in assessing the apprpriate measure of damages compares the relative fault of the parties and reduces the amount of damages to be collected by P in proportion to his degree of fault Technical Aspects

. Three forms of comparative negligence o Pure system: P’s negligence is never a complete bar to recovery o Modified System . System where injured party can only recover if his negligence is less than the tort feasors . System where the injured party can only recover if his negligence is less than or equal to the tortfeasor’s . Means that a small variation in the amount of negligence attributed to P can mean the difference between a substantial recovery and none at al . Challenges/practical difficulties o Cases involving multiple parties o Problem of dividing fault  difficult but not impossible . Guidelines . Special verdicts Purpose/rational

. Fairness argument: necessary so that responsibility for damage be proportioned according to fault o No one should be allowed to escape liability for his negligence . Juries were probably using under-the-table comparative negligence anyways

Cases Li v. Yellow Cab Co. of California (P was injured in an auto accident with cab driver, but denied any compensation for her injuries because of her own contributory negligence): In California, contributory negligence is replaced with a system of “pure, comparative negligence”  liability for negligently caused damage is assigned in direct propertion to the amount of negligence of the involved parties

o Necessary for fairness, justice  old doctrine fails to distribute responsibility in propertion to fault o Chooses “pure form” of comparative negligence o Ct: alternatives just lowers the bar of contributory negligence and still has problems of unfair “complete bar” Assumption of Risk

Rule

. Express assumption of Risk: individual contractually agrees in advance to waive his or her right to bring a tort action against a potential injurer o Exculpatory clauses . No duty of care breached by the defendant (NOT negligent)  P always and necessarily assumes the risk that he will be non-negligently injured o Another way of saying that there is no liability if D did not breach a duty of care to P o Often the holding in these cases that D was not negligent turns on: . Openness of the risk . Voluntariness of P’s participation . Reasonableness of the risks posed by the activity in light of its benefits . Form of contributory negligence: o P’s conscience taking of an unreasonable risk  defense to negligence claim . Non-negligent risk taking (saving baby on train tracks)  NOT a defense to negligence claim o P con

Purpose/Rationale Why a good rule?

. Sometimes you’ve already been compensated for that risk (employment) . Autonomy: if you know the risk, individual is best able to decide whether to take it (weighing cost-benefit  efficiency) o Responsibility on the person who decides to assume risk o Not for jury to decide reasonableness of every decision that has a raisk . Sometimes P is in a better position than D to decide whether to risk being injured by D’s negligence of not to do so Technical Aspects

Warnings . Makes it easier to point to “knowing and willing” assumption of rsik, but signs don’t change the law Waivers

. Defense of assumption of risk  getting customers to sign waivers o Easier for D to argue that we agreed that the conduct is reasonable . VALID when entered knowingly and voluntarily, although waivers that do not satisfy these requirements may be invalid. . Tunkl v. Regents of University of California (definition of whether an exculpatory agreement violates public policy) o Signing of waiver might not really be knowing/voluntary . Agreement to assume the risk of negligence  doesn’t make sense o Could mean: promise not to sue even if you are unreasonable and negligent  against public policy o Could mean: waiving suit to all reasonable accident occurances  that’s already the law . If you’re specific about each risk  more likely to help D o But if agreement is too long, etc could be unenforceable (couldn’t have been really knowing and voluntary) . If what really matters is whether something is reasonable or not  waiver doesn’t make a difference o Assumption of risk relates to whether duty exists o Agreement ahead of time about the duty and standard Issues

Relation to comparative/contributory negligence

. Properly understood we don’t need doctrine of assume of risk o Contributory negligent (secondary assumption of risk) o Person wasn’t negligent to you (primary) . No breach of duty . Flopper case  D wasn’t negligent o Acted reasonably under the circumstances o Complete bar to recovery Consent

. Assumption of risk is the “consent” argument applied to negligence

Cases Lamson v. American Axe & Tool Co. (hatchet painter case. P was employed to paint hatchets, and worked under hanging hatchets that were jarred frequently be nearby machinery. P complained to D who did nothing and was injured by a falling hatchet.): A person cannot recover for negligently inflicted injuries when he has acted to assume the risk of such injuries

. Court: If you knowingly and willingly accept risk for some reason of your own  can’t sue if the risk comes to fruition . Role of employee/employer  courts hesitate to grant assumption of risk defense o Not fully voluntary o Holmes: things done for motive of earning money don’t always negate voluntariness

Muurphy v. Steeplechase Amusement Co. (flopper case. P was injured when he fell while riding an amusemet ride ‘The Flopper’ which was a moving belt that ran up an inclined plane and caused people to fall on padded walls and flooring): one who takes part in a sport accepts the dangers that inhere in it insofar as they are obvious and necessary and they are not so serious as to justify the belief that precautions of some kind must have been taken to avert them.

. P knew what was going to happen and got on voluntarily  knowingly and voluntarily assumed risk that transpired . IF there’s a malfunction/defect/accident  didn’t necessarily assume that risk Exceptions

Fireman’s rule . The pay for the job is already the compensative for the danger it entails . “Risk premium”

STRICT LIABILITY DOCTRINES (roadmap)

Respondent superior . employee is liable for negligence of employee o has to be in scope of employment . detour v. frolic o Has to be employee (vs independent contractor) . Someone employer has control over conduct o “negligence” . not generally liable for intentional torts unless work environment is conducive to the risk/harm

Ultrahazardous Activities

. Animals: if know or should have known that animal was dangerous  liable even if you took due care o Gehrts v. Betteen: not liable b/c took due care and no reason to know dog would bite . Ultrahazardous activities o Restatement: Abnormally dangerous if the activity creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised and the activity is not one of common usage o Role of appropriate location . Want to incentivize putting activity where it will cause least harm o Role of positive externalities . fireworks

Nuisance . is a substantial and unreasonable interference with the right of an owner or occupier of land to the use and enjoyment of the land o Substantial . Ordinary person test: would this bother ordinary person  Church bell case . How severe? Kind of neighborhood? Statute? . o Unreasonable . Weighing the expected benefits of the conduct against their anticipated costs . Intentional v unintentional o If you had notice and continue  intentional and stricter liability . Exception: aesthetic harms o Too subjective o Florida hotel case . Defenses o Coming to the nuisance . Not determinative, just factor  Dog breeding case o Duty to mitigate . Have you tried to avoid the harm? Done all you can to mitigate the harm? o . Affects . Remedies o Injunction . Economic disparity issue  Cement company case o Damages – Respondent Superior

Rule . Employer is liable for the negligence of employee . Liable only if conduct took place within scope of employment and actor is an employee Purpose

. Incentive for employers to be careful? o They’re liable even if they’re careful… . Cost internalization  internalize cost/risk and decrease risky activity o Marginal utility o Spread the cost . Fairness argument: innocent 3rd party shouldn’t have to pay. o More fair for employer to pay o Employee is more likely to be insolvent o The one making the profit should pay o “Deeply rooted sentiment that a business enterprise cannot justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities” . Incentivize  incentive to come up with more precautions or take due care o Company in the better position to think/innovate o Incentivize innovation . Reduce the proof burden on P where it is hard to know which employee was negligent . Reciprocity doesn’t necessarily apply in these cases o Kind of risk not typically imposed on other o Employment system where company makes the profit . No positive externality o In some sense intentional  Employer knows that risk is almost certain occur at the frequency behavior is conducted . Knows the risk and decided to benefit  liable

Technical Aspects . Defining scope of employment o Why? . Incentive effects of strict liability can operate through employers only so far  At some pt the employer’s capacity to control the conduct of employees and consequently the strength of the argument for imposting strict liability, both diminish o Detour vs. Frolic . Detour = liable . Frolic = not liable o What counts as conduct “within the scope of employment” will depend on how effectively imposing liability on the employer for injuries cause by that conduct will serve the purposes of strict liability . Defining employee . Employee vs. independent contractor o Employee: employer has right to control how work is performed  vicarious liability . Why?  Only then is there a possibility that employer could do something better o Independent contractor  no vicarious liability . Why not?  Does not have incentive and cost-spreading effects . Exception for “dangerous work on your property”  Don’t want employers to just hire independent contractors for dangerous work to avoid liability

Issues Vicarious Liability for intentional torts?

. In general companies not liable for (outside scope of employment), but cases liable in cases where can be argued that the conduct (intentional tort) is within the scope of employment o Employment provides opportunity o risk comes from the employment . Harm comes from a risk that employment creates . Risk attendent upon the circumstance . Risk characteristic of your enterprise  strict liability Cases

Irsa S. Bushey & Sons Inc. v. United States (when returning to his docked coast guard ship, drunk sailor opened the drydock valves causing both the ship and the drydock to sink): An employer is vicariously liable for the reasonably foreseeable conduct of its employees performed within the scope of employment, even when such conduct was not motivated by a purpose of serving the employer

. Ct rejected “motive test” . New test: whether conduct is characteristic of employment activities o Premise that drunkennesness is characteristic of sailors o Reasoning for new rule . Clearly administratable . More stream-lined . “foreseeability”  if characteristic of activity then foreseeable consequences Petrovich v. Share Health Plan of Illinois, Inc. (P brought suit against her drs and HMO on the basis that both were responsible for the negligent and late diagnosis of her tongue cancer): A HMO may be held vicariously liable for the negligence of its independent-contractor physicians under the doctrines of apparent and implied authority ULTRAHAZARDOUS OR ABNORMALLY DANGEROUS ACTIVITIES

Rule . Strict liability for dangerous activities that present a risk of serious harm to the community that cannot be removed through any exercise of due care . Limited to the kind of harm, the possibility of which makes the activity abnormally dangerous o Strict liability is not absolute liability for engaging in a particular activity, but only for those consequences that this form of liability is designed to address . Restatement factors o High probability of risk of harm o Due care won’t help o Inappropriateness to the place o Common usage Purpose

. When being careful isn’t enough, we want to incentivize reducing/moving activity by putting more on the cost side of the equation

Technical Aspects Animals

. Knew or should have known pet is dangerous  liable o Gehrts v. Batteen . Strict liability for wild animals & pets that have bitten

Appropriateness of activity to location . Is this the sort of thing where we want people to think real hard about choosing location . The more uncommon an activity is to a particular area, the more likely it is that the activity-level and research incentives created by the threat of strict liability will be most effective . If uncommon to area, potential victims are less likely to be in position to do much to protect themselves against the risk the activity poses

Common usage

. If everybody’s doing it  reciprocal . Juries less equipped to deal with uncommon activities in determining reasonable level of care . Proxy for dangerousness Social utility of the activity . Positive externalities

Issues Purpose of strict liability for wild animals/explosives

. If being careful isn’t enough  negligence is useless . Reciprocity doesn’t apply . Quasi intentional since risk is so high . Puts more on the cost side of the market system o Encourage change in practice Second restatement vs. Third restatement

. Second restatement o High degree of risk of harm o Severity of harm o Inability to eliminate the risk by reasonable care o Not common usage o Inappropriateness to place o Value to the community . Third restatement o Foreseeable and highly significant risk o Even when reasonable care is exercised o Not of common usage

Cases Gehrts v. Batteen (D’s dog bites P): Owner of a domesticated animal maybe liable for harm caused by his pet if owner knows or has reason to know that animal has abnormally dangerous propensities, regardless of amount of care exercised by owner

. If owner doesn’t have actual knowledge, action can still survive if an ordinary prudent person should have foreseen the even that caused the injury and taken step to prevent the injury

Spano v. Perini Corp. (blasting by D on its own land wrecked P’s garage on nearby propery): One who sets off explosives is absolutely liable for damage caused without regard to trespass or fault

Indiana Harbor Belt RR v. American Cyanamid Co. (D, manufacturer of dangerous chemical, was held strictly liable when a quantity of it spilled during transportation): Strict liability will not be imposed against the manufacturer of a toxic chemical for accidents occurring during transporation

. 6 factors for determining whether an activity is ultrahazardous o great probability of harm o potentially serious level of harm o activity is not a matter of common usage o harm cannot be prevented by utmost care o activity is inappropriate for the location o social value of the activity is not sufficient to offset the risks . Ct: in this case negligence regime is enough o No way you could do this any differently NUISANCE

Rule . Nuisance is a substantial and unreasonable interference with the right of an owner or occupier of land to the use and enjoyment of the land

Purpose

. Way of recognizing that when it comes to your property you an recover for a type of harm (inchoate) that you can’t recover for elsewhere Technical Aspects

Reasonableness . Usually nuisance if activity is unreasonable o Reasonablness is determined by weighing the expected benefits of the conduct against their anticipated costs o More than we think is fair to make neighbor put up with under the circumstances

Serious/substantial intrusion

. Threshold for deciding that an activity has become a nuisance . How do we decide what’s serious/substantial o Nothing you can do to stop it/avoid the harm . Extent to which you can help yourself . Expense of the remedy o Who got there first? o How subjective is the harm? o Wilful/wanton misconduct o How harmful is the harm o What kind of neighborhood/area o Abnormally sensitive? o Was there knowledge? o Is there a statute? . Violation of statute would be strong proof that you’re negligent

Ordinary person test

. Is this an activity that would bother an ordinary person? o Church bell case (Rogers v. Elliot) . Ringing a bell isn’t a tort unless it bothers an ordinary person

Unintentional vs. intentional . Unintentional o Stop once you’re warned and then you’re only liable if you’re acting negligently . Intentional o Know you’re intruding and kept it up o Higher standard than negligence  more strict

Aesthetic harms . Cts reluctant to deal with aesthetic infringements on use and enjoyment of property o Subjective . Too difficult for courts to interpret/enforce . Intrusion on expression & autonomy o Other ways to deal with the issue . Buy surrounding land . Negotiate . Zoning o Fontainbleau Hotel case (no nuisance for building addition that blocked sun on other hotel)

Came to the nuisance defense

. Why shouldn’t you be compensated if you came to the nuisance? o Already compensated with lower cost of buying property o Intrinsic fairness of early bird gets the worm . Why shouldn’t “came to the nuisance” be an absolute defense? o Can’t have absolute rights just b/c you were first o Would encourage a rac to make active use of land even if such use was otherwise premature o Ensign v. Wells (dog breeding case)

Duty to mitigate . Equivalent to comparative negligence . Factor considered is how easy it would be to avoid the harm . Take common sense steps to mitigate the harm Remedies

. Injunction o Notion of equitable relief . Money is usually all law has to offer but in nuisance case can do something for you o Concerns with injunctions . Economic disparity  Boomer v. Atlantic Cement (no injunction because of great harm to community)  Bargaining range is too wide o Hold problems where D would just pay off P but P has all the power of a granted injunction . Damages o What if paying dmanages put the company out of business? . If business can’t afford to fix harms then should be out of business . EXCEPTION: positive externalities/public benefit  If benefit outweighs harm and can’t afford the harm then not going to call it a nuisance  Has to create positive public benefits in order to not be a nuisance

Public Nuisance

. Definition o Interferes with the right of the public at large o You were specially and uniquely harmed by it . Useful as a defense o Obstacle to claim . Meaning  this is the sort of thing better handled collectively . Not a tort

Issues Why can you recover for interference with enjoyment of land?

. Difficult to move o Unlike other inchoate harms it’s hard to avoid the harm . Intrinsic property rights . Reciprocal nature of property . Role of property value . Autonomy Cases

Vogel v. Grant-Lafayette Electric Cooperative (P sough recovery for injuries sustained by their cow herd as a result of stray voltage allegedly caused by negligence and private nuisance): Excessive stray voltage is actionalabe as a private nuisance if the trier of fact determines that such voltage unreasonably interferes with a person’s interests in the private use and enjoyment of land

. Unreasonable requirement in nuisance laws Ensign v. Walls (P claimed that D’s dog-breeding business constituted a nuisance. D had operated the business for years before most of those protesting had move into the neighborhood): The fact that an alleged nuisance long before those objecting to it moved into the vicinity does not necessarily prevent a court from ordering it abated . “Came to the nuisance” defense o rarely prevails o majority: landowner enjoys a right to the use and cotnro lof his property, cant be deprived of that right by a neighbor whose unreasonableland use began long ago

Fontainebleu Hotel v. Forty-Five Twenty-Five, Inc (D began construction of a building addition which threatened to cast a shadow upon the sunbathing area of a hotel owned by 4525.): A landowner may make reasonable and lawful use of his own property as long as he does not interfere with the legal rights of high neighbors or create a nuisance

. No liability for “light and air” . Hesitancy with liability that has to do with aesthetic displeasure o Too subjective Rogers v. Elliot (D insisted upon ringing church bell despite noice from dr that noise from bell caused P to suffer physical harm): Whether or not a particular activity constitutes a nuisance depends upon the way it would affect a person of ordinary sensitivity and temperament . Opposite of “take the plaintiff as he finds him”

Boomer v. Atlantic Cement Co (P – property owners sued D-cement plant allenging that pollution emating from the plant had injured their lands. Court refused an injunction, but did authorize successive actions for damages.): Although a nuisance will be enjoined even when a marked disparity is shown in economic consequcne between the effect of the injuction and the effect of the nuisance, if the partial effect of the injunction will be to close a production plant, a court will condition on equitable grounds the continuance of the injunction on the payment of permanent damages . Considerations in hether or not to grant injunction o Ct may consider the relative economic hardshp which will result to the aprties o Good faith or intentional misconduct of each o Interest of the general public in the continuation of D’s enterprise . Ct: permanent damages o Forced P to take money

AFFIRMATIVE DUTY (roadmap)

Rescue . Generally NO o Autonomy issues o Tort law not a good tool  giant theoretical issue about when people should do more to help . EXCEPTIONS o If you give rise to the harm . Montgomery v. Natonal Convoy (trucks stall on icy highway and don’t warn approaching drivers) o If you start to rescue someone you have to finish resuce reasonably

Owners/occupiers . Categories o – there for owner’s purposes – duty of reasonable care o Licensee – there for own purposes – duty to warn against hidden dangers o – duty not to willfully/wantonly injur . Attractive nuisance doctrine: exception for child who trespass bc of some particularly attractive condition – duty of reasonable care . Categories vs. negligence principles o Categories could be considered just a factor in whether conduct was reasonable o Rowland v. Christian holds categorization unacceptable Gratuitous Undertakings

. Once you undertake  duty o Not enough just to promise . Reliance o Unreasonable to induce reliance and not follow through . Reliance on precaution that is then reneged (watchman case, cat/rabies case) . Taking away precaution leaves people worse off than before . Have to be reasonable in stopping

Special Relationships . Nature of relationship o Pre-existing or created out of some contract, invitation . Foreseeability o Circumstances that put D on notice . Reliance o Who is best position o Has P given up control in someway . Landlords/universities/businesses/mental health professionals DUTY TO RESCUE

Rule . Generally NO duty to rescue. . EXCEPTIONS (not really exceptions but examples of negligence) o If you give rise to the harm . Montgomery v. Natonal Convoy (trucks stall on icy highway and don’t warn approaching drivers0 o If you start to rescue someone you have to finish resuce reasonably

Purpose . “Defining” legal duty

Issues

Legal vs. moral duty . Don’t have affirmative duty to help people in danger

Why generally no legal duty to act? . Principle of autonomy: difference between limiting what people can do and forcing people to act . Difference of causation: let happen vs. MAKE happen . Arbitrary line drawing: how will jury decide whether the rescue was easy o Doesn’t matter if risk to D is small or non-existant and danger to P is great . Bigger picture of inaction: could always be doing something more to help/save people o Charity example . Giant theoretical issues  tort law is NOT the right tool to sort this out . Might not want to incentivize non-professional/extra resuces o Could do more harm than good . Don’t need a law for something people do anyways

Why do exceptions make sense? . No concern about line drawing  narrowed the scope . Causation issue isn’t as much of a stretch . Less severe intrusion on autonomy Cases

Buch v. Amory Manufacturing (8-yr-old wandered into D’s mill and injured his hand when it was crushed by machinery. One of D’s overseers had observed P, but had not forced P to leave the premises): A landower has no duty to warn a trespasser of the existence of a dangerous condition or object even if the trespasser is a mere child.

. No legal duty to rescue in these circumstances . Mere ownership of the property is not basis for legal duty o Particularly no legal duty to trespassers  would have to be same legal duty that would be assigned to a random bystander Montgomery v. National Convoy & Trucking Co (d stalls on icy highway, blocking it completely. Because no wanring had been posted, P saw the trucks too late to avoid a collision): Duty to warn of an existing danger must be carried out in a manner reasonably caluculated to prevent harm

. Not suing for failure to rescue but for causing accident and not warning of danger GRATUITOUS UNDERTAKINGS

Rule . Once you undertake, you have affirmative duty o i.e. Duty to rescue someone who you began to rescue

Purpose

. If conduct increases the risk of harm beyond that which existed without the undertaking  liable o Worse off than if you had never undertaken the act

Technical Aspects

Reliance

. It is unreasonable to induce reliance and not follow through . Erie Railroad Co. v Stewart (watchman) - reliance by setting standard . Marsalis v. LaSalle (cat/rabies) – reliance by starting to do something

Issues Role of consideration

. What kind of promises will the law enforce () o Those promises that include you getting something in return o EXCEPTION: promissory estoeppel  when person has reasonably relied on the promise . Pt of overlap between contract and tort Tort v. Contract

. Reliance based on starting to do the thing = tort . Realiance based on promising to do it = contract

Disadvantages/Advantages of rule . Deter behavior that will help people for a time o RESPONSE: won’t really help people if stopping conduct after starting it hurt more people . Have to be reasonable in stopping  give warning, etc

Cases Thorne v. Deas (D agrees but fails to insure ship): Court says no recovery because no misfeasance and not supported by consideration

. Clark: seems unreasonable not to find D liable Erie Railroad Co. v Stewart (P was passenger in a vehicle that was struck by a train D customarily maintained a watchman at the site, but he had provided no warning until too late to prevent the accident): A party who voluntarily assumes a duty not imposed upon him by law maybe be deemed negligent if, without proper notice, he discontinues his performance of that duty

. If they had never put a watchman  not negligent to not have one o No obligation to have a watchman . Induced reliable o Those promises that include you getting something in return o EXCEPTION: promissory estoeppel  when person has reasonably relied on the promise . Pt of overlap between contract and tort

Marsalis v. LaSalle (D agreed to keep their cat under observation after it had bitten P): Once a party accepts a duty he is liable for negligently failing to fulfill it . If you induce reliance by starting act  liable

Moch Co. v Rensselaer Water Co (D-water company contracted to supply water to city of Rensselaer. P’s warehouse was destroyed by a fire which adequate water service could have prevented from spreading.): A party whose performance of a contract incidentally confers a benefit upon third parties does not owe any duty to continue to perform in a manner which is satisfactory to those parties. . Stands for the proposition that the failure to perform a contract can result in tort liability only if the part claiming damages was in privity with the breaching party. . Not gratuitous undertaking OWNERS & OCCUPIERS

Rule . Duty about the way you maintain law and property

Purpose Technical Aspect

Categories . Invitee o Owe duty of reasonable care . Must make premises as safe as possible o Business customer . There for purpose of owner . Licensee: Someone you let on to your property for their own benefit (social guests) o Hidden danger standard . Must warn of hidden dangerous conditions, but need not eliminate these conditions o Someone you let on to your property . There for their own benefit . Trespasser o Willful/wanton . Duty to refrain from wantonly and willfully injuring them Implied Licensee

. Way that cts try to get sympathetic P to jury . Implicitly allowed to be on the land

Attractive Nuisance Doctrine . Elements o Place where condition exists I one upon which possessor knows or has reason to know that children are likely to trespass o Possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to children o Children because of their youth do not discover the condition or realize the risk involved in intermeddling with or in coming within the area made dangerous o Utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight compared with the risk to children involved . Foreseen child trespassers who trespass because of some particularly attractive, dangerous condition o Duty or freasonable care

Issues

Why law shouldn’t protect trespassers? . Too burdensome to expect owners/occupiers to take precautions against unforeseeable . Fairness argument: trespassers broke the law so not entitled to duty of care . Assumption of risk: taking risk upon themselves Invitee v. Licensee

. Licensee there for their own benefit o Relaxed duty of care is incentive to allow people on your property for no benefit of your own o Autonomy argument: how you maintain your property is a choice you make about the way you lead your life o Hidden danger rule makes sense under the principle . Not an airtight distinction o Continuum rather than birght line o Extent to which visitor is on property for your purpose is one fo the factors in determining negligence

Cases Robert Addie & Sons v. Dumbreck (Despite warning to keep off D’s property, P’s 4- yr-old son went onto D’s land and was killed by a whell which was part of a coal ash removal system): Although he may not deliberately harm him, a landowner has not duty to protect a trespasser from risks or dangers

. Old case  reluctance today to apply harsh rule that no duty of care is owed to a respasser o Often circumvented by elevating the apparent trespasser to the status of the licensee or by holding that the trespasser had been ‘discovered’ by the landowner, and thus was owed a duty of care

Rowland v. Christian (P, a licensee, in the apartment of D was injured by a broken water faucet handle about which D knew, but did not warn): When a land occupier is aware of a concealed condition involving, in the absence of precautions, an unreasonable risk of harm to those coming in contact with it, and is aware that a person is about to come in contact with it, the failture to warn or to repair the condition constitutes negligence

. California ct does away with the categories o Don’t need them because we have negligence principles anyways o Rules don’t fit modern society (most people own property) SPECIAL RELATIONSHIPS

Rule . Can be liability for harm foreseeably suffered because of misconduct of third parties o Tenants o Students o Customers . Elements o Special relationship o Foreseeability . If special relationship  factors for negligence o Was duty breached o Was risk sufficiently probably o Potential harm sufficiently great o Cost of reducing the risk sufficiently small

Purpose Technical Aspects

Foreseeability . Often based on precedent argument o Has this sort of thing happened before . circumstances put D on notice of the risk of harm Special Relationship

. Preexisting relationship of some sort . Relationship that arises out of contract or through invitation that P be on property

Issues Landlord affirmative duty

. Concerns o Too burdenson/costly o Other mechanisms better equipped to solve this issue . Police should prevent crime o Difficult to determine foreseeability o Vague standard . Response o Landlord is the best (if not only) person to provide security . Only landlord is in position to make these changes . Exclusive control of common areas o Foreseable is not difficult . Things that might be reasonably likely . Often based on precedent argument o P is relying on D . Kline v. 1500 Mass Psychologist affirmative duty

. Concerns o Gets in the way of confidentiality . Patients might not seek help if they don’t trust confidentiality privilege o Difficult to predict accurately o Internalize cost  increasing cost of care . Response o Profession already recognizes an exception to confidentiality in cases like this o Importance of public safety o Social/societal reliance on the profession to report dangers . Elements o Specifically identified 3rd party whose safety is at risk Cases

Weirum v. RKO General Inc (D-DJ staged a promotional contest where 1st person to reach location would win a prize. Drivers forced car off highway, killing driver): D does have duty of reasonable care to P

. Pt of contest was to encourage racing on public street . Not a case of affirmative duty but misfeasance

Kline v. 1500 Mass. Ave. Apt. Corp. (P sued apt for damages after she was attacked in common area of the apartment building, contending it breached its duty to provide adequate security measures): A landlord is responsible for maintainingthe common areas of his property so as to minimize the risk that tenants may be exposed to an unreasonable risk of criminal attack. Tarasoff v. Regents of U. of Cal. (D a psychologist, failed to notify P that one of his patients threatened to kill her): Where a person bears a special relationship to a party or others who may be the victim of the conduct and it is reasonably foreseeable, a legally cognizable duty arises to protect or control the 3rd party . Comes closest to saying that if you’re uniquely positioned to help, you HAVe to help PRODUCTS LIABILITY – ROADMAP

Products liability . Strict liability o “in the business of selling” . position to discover or fix defect o Liability on anyone in manufacturing chain . Pass cost up to person in best position to correct issue o Purpose: put pressure on best person to minimize risk and/or internalize cost Manufacturing Defect

. Strict liability where there was a defect in construction and that defect caused harm o Can be hard to show proximate cause . Judges try to get case to jury bc makes sense that the negligent party should have to pay Design Defect

. More like negligence o Consumer expectation test . More dangerous than an ordinary consumer would expect? o Cost-utility test: whether risks outweigh benefit . Inappropriate test when you chose product knowing risks because benefit is impossible without risk  Actual choice (other options on the market)  User made the choice . Is there a feasible alternative? Inadequate Warning

. Duty to provide adequate/reasonable warning under the circumstances o Can’t warn yourself out of design defect . More appropriate for items that can’t be made safer: drugs, knives, guns, etc o Exception for drugs: dr in better position to provide warning than manufacturer . Burden on P to prove warning inadequate . Role of foreseeability o Can’t be liable for not warning about unforeseeable harm . No 20/20 hindsight test

Comparative Negligence . comparative negligence can diminish recovery even in case of strict liability . Examples o Product Misuse o Product modification o NOT a defense if misuse/modification is foreseeable . PRODUCTS LIABILITY

Rule . Area of strict liability . Anyone in the business of selling defective product can be liable o Not casual sale (neighbors, etc) . Not people who didn’t cause the defent and/or couldn’t do anything about it

Purpose . Put pressure on person in best position to minimize and/or internalize the cost o Incentivize correct behavior . innovation o Cost internalization

Technical Aspects Manufacturing Defects

. Actual strict liability o Just have to prove that product departed from intended design and that the departure caused the injury . Definition o Product departed from intended design and that departure caused injury o “unreasonably dangerous for its intended use” o departure from intended design, which makes it more dangerous and causes the harm . still has to be the kind of harm that made the product more dangerous . Why strict liability o Similar to ultrahazardous materials o Non-reciprocal o Encourage paying attention to when/where/how much o Quasi intention: knew harm will happen o Manufacturer in best position to conduct research or otherwise discover cost-effective ways of reducing the risk of harm resulting from manufacturing defects . Issues o Proximate cause o Sometimes ct allow case to get to the jury even if they’re having a hard time figuring out exactly what was defective . Analogous to res ipsa loquitor

Design Defect . More like negligence but still strict in the sense of vicarious liability . Burden of proof: Plaintiff as to prove defect . Open and obvious defense  not liable if defect is open/obvious . Definition o A defect that exists in a product regardless of the method of manufacture or amount of due care exercised by those in the commercial chain of distribution, but instead as the result of flaws in the product’s design . Consumer Expectation test o Definition: . Product is more dangerous than an ordinary consumer would expect o Purpose . Assuming the risk if you get what you asked for . Strict liability logic that consumer isn’t in position to fix or know defect  doesn’t apply if design is what you expect . Autonomy argument: consumer choice  Maximize utility by letting consumer decide . Risk-Benefit Test: Whether the risks posed by the design outweigh its benefits o Barker v. lull Engingeering (lift loader case) o Reasons why a product could be liable via cost-beneft analysis even if product is no more dangerous than a consumer would expect . Market is imperfect  Safety might not translate immediate sales  Law has to help market . Injured party might not have made the choice . Consumers don’t know how safe a product should be . We want less injuries  if safer product is feasible, you should do it o Reasonable person would say that if you could easily and cheaply take a precation to prevent the harm and don’t  negligent . When not risk-benefit test doesn’t make sense o Plaintiff is in best position to prevent harm . Real answer is on P o The risk is really obvious o There were alternatives . You really chose . Don’t want to ask ct to say you weren’t equipped to choose o The chooser picked the risk – autonomy o Risk intrinsic to the benefit . Can’t give you what you want without the risk (i.e. convertible) o No malfunction . Defenses o Showing feasible alternative o Comparative negligence o Open and obvious o Preemption . Not defective as a matter of law . Halliday v. Sturn, Ruger & Co (boy shot with father’s gun)

Duty to Warn . Jury issue whether warning is adequate o Is warning reasonable under the circumstances? . Definition: An obligation owed to inform of defects which may cause injury . Negligent failure to warn o EXCEPTION: learned intermediary . Manufacturing company of drugs usually not liable if gave warning to dr  Why? o Burdensome o Dr is in better position to warn  EXCEPTION: birth control case o Why? . Less contact between dr and patient . More voluntary  Heightened participation of patients  Less reliance on dr . Advertised directly to the consumer  duty to consumer o Plaintiffs must prove caustion  prove that if an adequate warning had been given, he would not have used the product or not have used it in the way he did . Cts err on the side of liability when know D is negligent but P is having a hard time proving proximatecuase . Role of foreseeability o Duty to warn if by the application of reasonable, developed human skill and foresight should have knowledge of the danger . Have to warn only about what you could have known about  Not when harm is unforeseeable (breast implant case)  Rejecting 20/20 hindsight test . Purpose of warnings o To allow consumers to make cost-benefit decision o Protect autonomy . Relationship between warning & design o Can’t just warn yourself out of defective design . When a reasonable alternative design can eliminate a product defect, then merely warning about those risks does nto insulate D from liability o Goal: safer products o Sometimes all you can do is warn: saw, medicine, motorcycle . Concern with extra long warnings o People won’t read it . Immunization Cases o Collective action problem . Full information doesn’t lead to better outcome because individually rational choices leads to collectively bad behavior o Solved by regulation Comparative Negligence

. Rule: comparative negligence can diminish recovery even in case of strict liability . Why does comparative negligence defense make sense? o Fairness: distributes responsibility in proportion to fault o Doesn’t fundamentally change what P has to prove o Want to give P incentives as well . Encourage to behave safely . Not just on indivudal basis, but indirectly to create norms, set standards o Won’t undercut incentive of manufacturers to be careful b/c can’t count on Ps to be negligent . Product misuse o Unintended use/misuse can be defense . Just 1 way P can be comparatively negligent o EXCEPTION: product misuse is foreseeable . Substantial modificaiont o If changed too much  product isn’t what D sold Issues

Why strict liability for defective products?

. Manufacturers in better position to prevent harm . Fairness: if there’s an unavoidable cost with manufacturing this product  manufacturer should pay it . Modern manufacturing  RELIANCE o P has little way of knowing how something was made, and have to rely on manufacturer o Advertising encourages us to trust manufacturer . Cost internalization o Pass on the cost to consumer and market takes over from there . No positive externalitites Why liability for anyone in business of selling?

. Cost will ultimately get passed up the chain to whoever created the defect o Hydraulic pressure

Cases Thomas v. Winchester (poison case): Allowed a negligence action by a woman who was poisoned against a chemist who had sold the falsely label poison to the druggest

. “immenently dangerous”

Winterbottom v. Wright (P was injured while driving a defective mail coach which the govt had bought from D pursuant to supply-maintenance control): A contracting party, unless he has undertaken a public duty, has no liability to third parties who are injured as a result of a breach of the contract

. Old rule  required privity for liability o Had to be party to contract o Little basis for recovery against anyone other than the immediate seller of the product MacPherson v. Buick Motor Co (P bought a car for his wife who was injured when a defective wheel collapsed): A manufacturer will be strictly liable for injury caused by his product where, if negligently made, it will be dangerous to the life of any potential user. . Formally rejects privity requirement where the product was likely to cause death or serious injury . Explains poison case o Liable bc risk was foreseeable . Rule: Something that if you’re careless in making and it’s foreseeable that careless construction would cause harm = liability . Rule: Awareness that it’s going to be someone other than original buyer  liability beyond privity requirement o Made it possible for plaintiffs to sue manufactueres with whom they had no direct contractual relationship

Escola v. Coca Cola Bottling Co of Fresno (P- a waitress was injured when a Coke bottle exploded while being placed in a refrigerator): The manufacturer of a defective product should be help strictly liable for any injuries that result from the use of the product

. Concurring opinion from Justice Traynor . Rationale for strict liability o Deterrence o Availability of insurance o Access to evidence

Barker v Lull Engineering (P sought to recover under a strict liability theory for injuries sustained while operating a machine manufactuered by D, claiming that defective design of the machine proximately caused the injuries): Product defect Test

. A product is defectively designed o If it does not perform as safely as the orindary consumer would expect, when used in an intended or reasonably foreseeable manner OR o If the benefits of the product’s design are outweighed by the risk of danger inherent in such design

Halliday v. Sturn, Ruger & co. (P’s 3-yr-old son was killed when he shot himself playing with his father’s handgun which came with warning, instruction manual): Under the consumer expectation test, gun makers are only liable when their products malfunction

. Product did what it was designed to do MacDonald v. Ortho Pharmaceutical Corp (P argues that D as amanufactuer of birth control, had a direct duty to the consumer to warn of inherent dangers): The manufacturer of birth control pills owes a direct duty to the consumer to warn her of the dangers inherent in the use of the pill

. Argument that warning is inadequate: manufacturer used a euphamism to try to avoid the scarier, more well-understood word Vasallo v. Baxter Healthcare Corp (P brought suit for injuries sustained as a result of rupturing silicone breast implants on the basis that implants were negligently designed and that manufacturer failed to provide adequate warnings in breach of the implied warranty of merchantability.

Hood v. Ryobi (P alleged that D failed to adequately warn of dangers of using a saw when blade guards is removed even though warning in several places to not remove blade guards): A manufacturer may be liable for placing a product on the market that bears inadequate instructions and warnings or that is defective in design

Daly v. General Motors (P sues for fatal injuries when thrown by car manufacutered by D but D says P was ejected through his failure to use car’s safety features): P’s negligent conduct will reduce his recovery in strict products liability by an amount proportionate to his fault

Rule . Definition: Defamatory communication which is false and an [unprivileged] publican in many (almost all) cases at least negligence as to falsehood. In some cases, proof of special dmanages o False o Unprivileged publication o At least negligent as to falsehood o Defamatory o Damages (sometimes) . Includes libel and slander . “Harmful lies” o harm to reputation . Have to prove that statement could not have refered to someone else Elements

. Must be published o Has to be communicated to others o Can be considered published even if “internal” (Doe v. Gonzaga) o Can be publication by default . Can be liable for something that you allow to remain published in an area that you control  Hellar v. Bianco (writing on the bathroom wall) . False o P has to prove it was false o Can’t be liable for matter in dispute  neither true nor false (Auvil v. CBS 60 minutes) . At least negligent o If intentional  strict liability . Don’t want to allow harmful laws . Defamatory o What counts as defamatory? . Lowers you in estimation of others . Deters others from dealing with you o Depends on the community you care about . Has to be a substantial and respectable community . Damages o Special v. general o Have to show that harm (damages) results from diminished reputation . Proximate cuase o Won’t grant injuntions/equitable relief  offends free speech too much . Retraction doesn’t necessarily get D off the hook Purpose/Rationale

Protects . Interest in reputation and good name . Protects relationship with others in your community . NOT to protect feelings (could be pushed to IIED but probably not) Why does tort law deal with this?

. Tort law typically shies away from these inchoate harms but not in this case . Recognizes that reputation is considered to be very important o Reputation should be something controlled by you based on who you act o Reputation is part of who you are o Reputation is how you choose to present yourself . Not something that can otherwise be remedied o Hard to handle on your own . Incentivize good behavior/deter bad behavior . More analogous to intentional tort o Not a reciprocity issue . Less concern about line-drawing, fake claims, slippery slop because falsehood provides a concrete boundary

Technical Aspects Slander

. Spoken Libel

. Written//recorded

Slander/liable per se . Distinction in regards to damages o Per Se . DON’T have to prove special damages . 4 categories  committed crime  unfit for trade  loathsome disease  sexual misconduct o NOT per se . you do have to prove special damages  Means proving damages more concretely/specifically . Per se can also refer to what is necessary in pleading o Per se = when you don’t have to explain how a statement is defamatory = prima facie o Not per se would mean you do have to explain how statement is defamatory

Privilege . Qualified/conditional privilege o You have an obligation (familial/professional) to tell someone, and you pass it on within the scope of relationship, and only communicate to people whom you had duty to tell and reason to believe it was true . Can be qualified privilege for communications between co- employees, but that privilege may be lost if the employees are not acting in the ordinary course of their work when they communicate (Doe v. Gonzaga) . Now that we have a negligence standard, non-negligence defense is unnecessary . Watt v. Longsdon . Absolute privilege o What you say cannot be actionable as defamation even if malicious/negligent . i.e. legal proceedings, what you say in court o Why not liability for legal proceedings? . Lots of other remedies besides defamation law suits  Should potentially be privileged if this is a proceeding where other safetguards exist  Rule 11  Professional obligations  Perjury o Kennedy v. Cannon (lawyer for rape suspect) Role of Opinion

. Opinions aren’t actionable as defamation o Wilkow v. Forbes (bankruptcy article) . Matters whether communication is understood as opinion o “In my opinion” prefact isn’t a defense o Depends on context . Whether presenting facts or commenting on it . Why? o Opinions aren’t really true or false o Readers wont be misled  doesn’t lead to harm of defamation o 1st amendment interests  don’t want to chill free speech

“Of and concerning” . Have to prove that statement could not have refered to someone else

Group Libel . Can only sue for defamation if they say something about you, but can say something about you by saying something defamatory about a small group of which you’re a part of  understood as being about you . Why not broader recognition of group libel? o Not taken literally o Not specific . Not one victim . Too hard to draw line to limit cases and determine who is actually harmed o General statements are more of abroad societal harm  not tort law issue o Individual lawsuits would be a poor tool for dealing with the harm o Other remedies . Speech against speech

Injurious falsehood . Usually harmful lie is harmful because defamatory but possible for law to be harmful in other ways o i.e. someone claims you’ve moved your business out of town o Pecuniary loss if . Intended to cause pecuniary harm . Knows statement is false or acts in reckless disregard of falsohood/truth Damages

. Special damages o Requirement of greater specificity . Identify components of loss . General damages o Damages presumed . Jury allowed to make best judgment about amount . Cases where it is usually hard to show exactly what damage lie has caused Public Officials/Public figures

. Requires showing of actual = knowing falsehood or reckless disregard for the truth o Public officals – Nytimes v. Sullivan o Public figures – Curtis Publishing v. Butts . Not strict liability, not even negligence . Why actual malice test? . Best way to balance interest of free speech and interest in protecting reputation . Breathing room  want to facilitate/allow for vigorous, open conversation/debate  Avoid chilling affect Private Citizens

. Still entitled to constitutional protection (Gertz v. Robert Welch, Inc) o In suit against a media outlet o Matter of public concern

Issues

Evolution of defamation

. Common law o Traditional body of law that was eager t ofind for P . Relatively easier to sue for defamation . Constiutional o Newer standard for defamation that is considered pro-Defendant . First Amendment concerns  Pro free speech . Sharply limited traditional version

Truth as a defense

. Why not absolute defense? o People would never be able to be wrong about matters legimitately in dispute (Auvil v. CBS 60 Minutes) Constitutional protection

. Why should first amendment protect false speech against public officials? o Necessary to protect some false statements to provide “breathing space” o Would otherwise chill free speech o Exact purpose of 1st amendment was to allow speech critical of public officials . People speaking up and critizing govt is exactly what 1st amendment is about . What about public figures? o First amendment is really about check on people with power not just govt officials o Public figure in better position to protect themselves . Access to media and ability to respond o Voluntariness can be a factor of being a public figure/public official o Do serve public purpose . Conversations about how we want to be . Interest in facilitating those types of conversations

Cases

Doe v. Gonzaga University (P sued D-university for defamation based on D’s sexual assault investigation of P): Defamation consists of falsity, an unprivileged communication, fault and damages.

. There is qualified privilege for communications made between co-workers but that privilege may be lost if the employees are not acting in the ordinary course of their work when they communicate

Wilkow v. Forbes (P sued D-Forbes after D published an artible about P critizing his filing for bankruptcy): A statement is not actionable for libel if the speaker is expressing a subjective view, an interpretation, a theory, conjecture, or surmise rather than claiming to be in possession of objectively verifiable facts.

. Opinions aren’t actionable as defamation

E. Hulton & Co. v Jones (P sued D for running an article implying that P was seen in Paris with his mistress, but D argued that they had used the name “Artemus Jones” as a fictitious name and didn’t intend to defame Jones.): Libel is a tortuous act andconsists of using language which other, knowing the circumstances would reasonably think to be defamatory of the person complaining of it or injured by it.

. Example of traditional strict liability o If not true  defamation

Ellsworth v. Martindale-Hubbell Law Directory, Inc. (P alleged special damages resulting from D’s failur to rate him in its Law Directory). Special damages may be established by showing a diminishment of business and that defamatory statements were likely to have caused the loss. . Example of difficult line drawing between general/special

Terwilliger v. Wands (D said that P was having sex with Mrs. Fuller, a married woman): Words which claim that a man is having extramarital sex are not actionable without a demonstration of special damages since they do not disparage the man’s character or reputation

. Another example of per se vs. not/general damages vs. special . Accepting that claim needs special damanges, why don’t his damages count? o Damages in case = lost job, physical illness . NOT defamation damages . Have to show harm results from diminished reputation (proximate cause) Auvil v. CBS 60 Minutes (Washington state apple growers brought suit against CBS alleging product disparagment as a result of a broadcast in which CBS claimed that the growers utilized a known carinogen in the production of their apples).

. Rule: To establish a claim or product disparagement/trade libel, P must show that D published a knowingly false statement that was harmful to the interets of another with the intent to harm P’s pecuniary interest o Plaintiffs didn’t prove statements were false  no liability . Ct: can’t point to overall impression  must have statement . Matter is in dispute  neither true nor false . Why not liability? o Don’t pt to specific statement o Didn’t know it was false o We want discussion about matters in dispute

Burton v. Cromwell Publishing (embarrassing picture): Statement is defamatory only if it is false

. We don’t want you to defame people but if true we’ll grudgingly let you off the hook . Social importance of truth

Hustler magazine v. Falwell (D published vicious parody of P) . Ct: parody was intrinsically unbelievable and therefore undercut the libel claim o Deliberate parody is outside the scope of defamation o nthe ground that no one could believe it to be true . Neither true or false o Nobody thought it was true o Wasn’t meant to be taken as true Watt v. Longsdon (P sued D for 3 separate defamatory publichations between D and one of P’s coworkers in which it was allged that P drank excessively and had affairs)

. Rule: Unless the defamation is a privileged communication, a person making defamatory statement which are false will incur liability for his statements

Kennedy v. Cannon (P- white alleged rape victim brought suit for slander against D, the attorney of the black alleged rapist after D issued a statement to the local paper that P had consented to the relation)

. Rule: Attorneys are privileged and protected to a certain extent, at least, for defamatory words spoken in a judicial proceeding

New York Times Co. v. Sullivan (D had published an ad critical of how Montgomery police controlled by P had responded to civil rights demonstrations) . RULE: A public official may not recover damages for a defamatory falsehood concerning his official conduct unless he can prove that the statement was made with actual malice

Curtis Publishing Co. v Butts (Butts-P, a coach, was accused of fixing a football game. Walker-P had allegedly led a charge against national guardsmen.)

. Extended actual malice test to public figures Gertz v. Robert Welch Inc. (P, an attorney, was labeled Communist for his actions in connection with a civil action filed against a policeman). . RULE: defamation of a party who is neither a bpucli figure nor an official is entitled to constituional protections . Switches burden to plaintiff o P has to show false as element of claim o P has to prove at least negligence

Philadelphia Newspapers v. Hepps (Pennsylvania Supreme Court held that in a defamation suit by a private citizen against a newspaper, D had the burden of disproving falsity).

. RULE: In a defamation action by a private citizen against a news media outlet in a matter of public conern, P has the burden of proving falsity o Applies to media defendants and matters of public interest PRIVACY

Purpose

Why should tort law deal with Privacy? . Warren & Brandeis article o Current necessity o Precdent evolving to make this natural next step/steady evolution . Increased ability to recognize inchoate harms o Lowering of social standards and or morality . “belittles and perverts” . diminishes us as human beings o vicious cycle . creating that sort of content creates demand which will incentivize more of that conduct

Issues

Line-drawing: Brandeis article doesn’t deal with logistical/administrative questions . Prosser: 4 areas of law o Contracts: appropriation for D’s advantage of P’s name or likeness . Should have to get permission/pay for that right . Property right in your own likeness . Why does that make sense?  For famous people its part of their livelihood  Like copyright/patentincentivize the production/ccreation o Analogous to incentivizing good behavior  reputation . Intrusion upon seclusion . Public disclosure of private facts . “” o publicly putting someone in a false light

INTRUSION UPON SECLUSION

Rule

“One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another, or his private affairs or his concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person” . Reasonableness test o Courts focus on: . The mechanism/method used to gather info  The more extreme  the less likely cts are to protect it  liability more likely  Wiretaps/electronic surveillance equipment will generally constitute an intrusion into a private place (Nader v. General Motors) . How personal was the info  Nature of the info  Privateness of the info o Would it be offensive to a reasonable person? o Did you have a reasonable ?

Issues

. Problem of stalking/intrusions in public spaces o Even in public spaces, one’s personal space may be offensively invaded by the repeated, harassming rpesence of D . First amendment concerns . tends to relate to undercover journalism . Acquiring stolen information . Cts surprisingly hesitatnt to hold the press liable for intrusion upon seclusion when they use info that was stolen or illegally obtained . Cts conflate publication with the way it was acquired

Cases

. Desnick v. American Broadcasting Co (Drs from the Desnick Eye Center (P) filed suit against ABC (D) for sending reporters equipped with hidden video camera pretending to be patients to the eye clinic): No invasion of privacy or trespass occurs when an individual posing as a patient, for investigative purposes, visits a doctor and secretly videotapes the consultation o Question often tied to trespass . In this case trespass is the same question of if there was invasion of seclusion . If anything makes it a trespass it would be misrepresentation  When does misrepresentation blend into unacceptable consent . Posner: way to deal with whether a trespass is determining what interest was invaded

Public disclosure of private facts

Rule . Gives publicity to o Must be publicized as opposed to being released to a few people . Highly offensive to reasonable person . Not of legitimate concern to the public o Seems like if public is interested than it’s of legitimate public concern o Painful, intimate details of someone’s life could be of legitimate public concern . Balancing test o The right to be free from offensive public disclosures of private facts must at some point yield to the public’s right to know about matters of public interest . Legitimacy of the public interest in the information disclosed . Extent to which the plaintiff has subjected himself to publicity in the past . Character of the information disclosed . Manner in which D came into possession of the information

Issues

. Why are courts so hesitant to recognize this cause of action? o Would be too many claims, flood the court system o Maybe not behavior that we want to punish . Learning about people’s personal lives can be a vehicle for how we talk about larger things/issues . We want people to talk about this stuff . Learning from behavior of others . Vehicle to talk about larger issue . Public reporting of legal proceedings, public system,  Includes things like rape cases o Free speech concerns o Line drawing concern . Once we allow liability for truth, it’s hard to draw line . At least with defamation we have bright line of falsehood o NyTimes and need for “breathing space” o Other mechanisms of dealing with this issue . Institutional standards at newspapers, for example o Could disincentivize people to do good things if they don’t want to be dragged through the mud of their past mistakes o Analogous to emotional distress . Father of rape victim like zone of danger rule  arbitrary line drawing . What kind of harm are we talking about?  Difficult line to draw and cts would be bad at it . Why might we want this sort of thing protected? o What about if something has been done to you (i.e. rape victim, child prodigy) o We want people to have the ability to move on, build a reputation

Cases

. Sidis v. F-R Publishing Corp (The early life of a child genius was recounted in several articles appearing in the New Yorker): Intimate, embarrassing facts concerning the private life of a one-time public figure are not actionable unless they go beyond the bounds of decency o As long as the item is “newsworthy” (regardless of publication) it is unprotected o Explanation for protecting this sort of disclosure . what happens to people who show genius early on is an example to people, says something about an issue we care about . Cox Broadcasting Corp. v Cohn (a tv station owned by Cox Broadcasting informed the public as to the name of a deceased rape victim): Accurate reporting of information contained in public records is not actionable o Role of public records . Zone of privacy does not extend to the reporting of judicial events which are deemed to be of general public interest . Haynes v. Alfred A. Knopf (Haynes sued Knopf for invasion or privacy after it published a book that included an account of P’s young adulthood as a drunk, and adulterer and batterer): If a matter is of public interest, it is only actionable if the falsity was made with malice or in reckless disregard of the truth o Reason to protect . personal story isn’t just a personal story. It’s a vehicle for telling broader story

FALSE LIGHT Rule

. Elements o Actual malice standard if issue is of public concern and everything’s of public concern o Highly offensive . If issue of public concern and everything’s of public concern . Highly offensive

Issues . How is it any different from defamation o Maybe the gist? Not a specific lie but general understanding is false . Most things that are general aren’t easy to classify as strictly true or false o Maybe reaches a little more but with more limits o Clark: doesn’t do any work . Defamation covers everything false light covers o Conceivably a portrayal can be in a false light without injuring the plaintiff’s reputation or otherwise defaming him

Cases

. Time Inc v. Hill (Life Magazine published an article stating that new play was a recreation of a real incident which was suffered by Hill and his family): If matter is of public interest, it is only actionable if the falsity was made with malice or in reckless disregard of the truth