Torts - Ben Zipursky - 2009 Intentional Torts

A Intentional Torts
1 BATTERY (549): iniction of harmful or offensive contact by an actor upon another with the intent to cause such contact
i Elements (prima facie case)
a Act: (law)
1 failure to stop a battery is not a battery bc not act
2 voluntary act req't
b Intention to cause a harmful or offensive contact ("almost all the action") (fact)
1 Intent
intent to make contact, not that contact be harmful (Wagner, Vosburg)
Wagner v. State (Utah 2005). p. 566. Mentally ill ward of state attacks woman in Wal-Mart. Battery w/o intent to
harm. Statutory immunity. Intent to make a contact.
Legal Issue: Can you have battery without intention to cause harm? yes.
negligence claim, but decision is about battery because of sovereign immunity. Wavied by statute except
retained immunity for assault and battery.
Arguments for D (that it is a battery)
2nd restatement (adopted): don't need to intend to cause harm (argument from authority)
fact issue that he couldn't intend to cause harm does not demand resolution for summary judgment
because standard is intent to cause contact
Arguments for P (to get around sovereign immunity from injuries resulting from assault and battery)
Matheson (572), Utah SCt., so binding, says battery requires an intent to cause harm. Prior decision on
exact issue. Argument from authority.
court says that case was before restatement was expressly adopted, and overrules it.
Federal exemption is from claims of assault and battery, whereas Utah is for injuries resulting from assault
and battery. Utah expands beyond Federal for policy reasons
BZ: case is thin. Not necessarily wrong, but "makeway" argument, so directs to policy argument, which leads
to greater cause for concern.
it's supposed to be about victim's rights, but in context of denying recovery (irony)
real issue is how far immunity goes. statutory interpretation question of what legislature of Utah was trying
to do. No reason to think legislature was trying to bar recovery in this kind of case.
Vosburg v. Putney (Wis. 1891), p. 610, kick at school, intent to unlawful touching (not intent to harm); eggshell
skull
trial verdict for P for $2,800. circuit court conrms for $2,500.
Holdings
general intent to kick sustains cause of action (don't need intent to harm)
attention to circumstances (at school, no implied license)
testimony on awed hypo=material error
damages not limited by foreseeability
Famous because
interesting take on intent in battery: don't have to intend to harm, but do have to intend unlawful touching.
Not any kind of touching (between Wagner and Mathiesen)
if you use offensive instead of unlawfu, would clarify, because trying to dene the act
normative claim that the act is offensive (or, here, unlawful) is supported by common law and/or by
extant social norms (rightly decided in this way)
requires fourth premise, not just announcing as unlawful but saying that it's offensive and not to be
done. but problems with offensive in that it uses effects rather than language that refers to act
the extent of D's liability for P's crippling (considering previous condition): "eggshell skull doctrine": take
your victim as you nd him, pay for entire injury caused by your act. everything owing from tort
exception: Spivey. (unwanted hug causes facial paralysis, found to be negligence not battery b/c D didn't know
he would or could cause).
Cole v. Hibberd (OH 1994), p. 613, Hibberd kicks a friend (Cole) in the back, intent to kick sufcient to nd
battery (so claim can't be in negligence and barred by SoL)
woman kicked in the back, charge dismissed on statute of limitations, appeal that the claim is in negligence,
not in battery. (holding that it's a battery, so barred).
funny case because plaintiff, Cole, alleges that it is a fact-bound issue whether it's negligence or battery,
based on the circumstances, and says it's negligence because they're friends with no intent to harm. (bc of
SoL problems)
court maintains irrelevance of intent to injure
dissent maintains that it's possible to nd negligence under the circumstances, fact q for jury
negligence does not sufce, nor gross negligence, nor recklessness
A Intentional Torts
1 BATTERY (549): iniction of harmful or offensive contact by an actor upon another with the intent to cause such contact
i Elements (prima facie case)
b Intention to cause a harmful or offensive contact ("almost all the action") (fact)
1 Intent
intent to make contact, not that contact be harmful (Wagner, Vosburg)
Cole v. Hibberd (OH 1994), p. 613, Hibberd kicks a friend (Cole) in the back, intent to kick sufcient to nd
battery (so claim can't be in negligence and barred by SoL)
dissent maintains that it's possible to nd negligence under the circumstances, fact q for jury
negligence does not sufce, nor gross negligence, nor recklessness
knowledge does sufce
subjective standard of knowledge
knowledge of some probability not enough (it is in negligence, but not here). must be certain of result.
knowledge as alternative to purpose. sufcient but not necessary
questions on statistical knowledge (whether you must have knowledge of a specic person)
knowing that you'll hit someone with your car even if you'd rather not. Garratt v. Dailey. (kid pulls chair from
under aunt, tries to put it back, liable bc he was substantially certain that her fall would result)
two theories of how knowledge and liability interact
substantial certainty to produce result is legal equivalent of intent OR
knowledge of probable result is evidence of intent
If P unduly sensitive and D knew of hyper-sensitivity and undertook conduct to cause offense. (BZ says not sure
if correct)
when does recklessness become knowledge?
some courts: awareness of high probability enough
other courts: awareness of high probability not enough
boundary: if you know of some probability (1/10,000 cars will have defect) and sell 20,000, not battery
Doctrine of transferred intent
same victim, different tort
accountable for unintended consequences of one tort (intent from assault transfers to intent for battery)
(Nelson).
if you have everything but intent to touch, you may be able to "plug the gap" with the intent for another
intentional tort, and vice versa. just need intent to invade someone's space
Nelson v. Carroll (558): unintentional nightclub shooting (D intended to pistol whip but accidentally shot).
ACCOUNTABLE FOR UNINTENTIONAL RESULTS of battery. RULE: If you're in the process of doing some
kind of battery, you're not exculpated from unintentional result
same tort, different victim
In re White (VA 1982), p. 621, bankrupt shooter accidentally shoots neighbor instead of arguer. Under
doctrine of transferred intent: liable for battery (in bankruptcy court. debt will discharge unless it's a battery).
RULE: "injury is not required to be directed against the victim," just "wrongful act intentionally done"...w injuries
resulting from that act
from things to persons
Rice v. Palladin (586): man bought Palladin book on how to be a hit man and then killed ex-wife and child. Family
sued publisher for aiding and abetting hit (battery). 1st amendment defense thrown out.; also Doe v. Unocal (IEL)
2 Harmful OR offensive contact (viewed objectively) (fact/jury)
Harmful or offensive standard: would a reasonable person nd it offensive?
D protected from really unreasonable sensibilities
Harm is not an element. Offensive touching is enough (Holbrook)
Paul vs. Holbrook (p. 553): 2 occasions of unwanted shoulder massages. whether touching is offensive,
should go to jury
trial judge granted summary judgment on all claims, appeal upholds on all except battery
would a reasonable person nd it offensive?
trial court might have thought no reasonable person would nd it offensive
appellate judge doesn't have to rule on this, just says it's enough to go to jury
Wagner states standard.
BALANCES between preserving bodily integrity and recognizing/accomodating realities of physical world
Contact: things directly connected to body included (clothes, something you're holding). Line is between things that
are attached to you and things you own.
doesn't have to be touching outisde the body (drinking poison)
doesn't have to be touching by D (giving the soda)
Leichtman (566): blowing smoke in someone's face (About invasion of the person)
c Caused such a contact
1 unintended consequences covered
2 eggshell skull (Vosburg)
2 ASSAULT (579): intentional threat or attempt to create an apprehension of harmful or offensive contact, coupled with apparent
ability to do bodily harm
i ISSUE SPOTTER CHECKLIST
a Voluntary act (not mere words)
b immediate apprehension (on reasonableness standard)
c was there warning? if not, no assault b/c no apprehension
d intent to create apprehension
e act reasonably causes apprehension
A Intentional Torts
i ISSUE SPOTTER CHECKLIST
d intent to create apprehension
e act reasonably causes apprehension
ii Elements
a Act:
1 question of focus on belief of plaintiff vs. intent/act of defendant (Vetter, Booker, Raess)
2 not "mere words," (Booker, phone operator, 580, touching not imminent, Raess, Vetter)
meant to absorb 'regular life' stuff and not let that stuff be torts
Vetter, 583, swerving car with threat counts as assault. words sufcient here. evidence enough of each element
to go to jury on assault, and ability to ee does not defeat threats
threats between vehicles. not clearly imminent. Mostly threatening of words, but swerving of car makes assault.
Question of working together
Procedural posture: summary judgment against P at trial court, so court nding if there is sufcient q of material
fact to go to jury
correctly decided?
swerving indicates threat/assault
Gaither swerved, Morgan convicted
question of acting in concert (Morgan's words and Gaither's actions)
swerving is contested
If no swerve, is it a mere words case?
even without swerve, apprehension
distinguish from Brooker by immediacy of fear
at red light in the middle of the night
court doesn't seem to care much about the words, BZ says unclear why
So why not "words alone" problem without swerve?
actual physical proximity and car
could she move? reversible?
words alone about reasonableness of harm. So intimidatingness in context here (3 men)
even if you can repel harm, still can have reasonable apprehensions of harm
courts focuses on belief. 'words alone' doctrine is to reinforce that assault is supposed to be a threatening ACT.
Lots of words can give rise to reasonable apprehension. "Harrowing mindset of being almost physically injured
with contact."
BZ thinks swerve is important in context of what he said, threatening behavior, spitting, ultimate harm.
problem: not Morgan's act, it's Gaither's, so court has to nd acting in concert
settlement with driver of car for negligence, but not assault, so this "blood money" from Morgan's pocket
Raess (handout) also looks like words alone case, of doctor yelling threat. Guilty of assault anyway
charge: assault and intentional iniction of emotional distress (IIED).
no liability for the latter at trial
$325k from jury for assault
denied jnov
appellate court reversed, saying evidence of other incidents prejudicial to doctor
S.Ct. hears on whether it was appropriate to hear evidence on whether doctor was workplace bully. Court says
it's ne, reinstates verdict.
question of whether jury should have been focused on reasonableness of apprehension of physical contact (as
opposed to the intentional threat or intent to create apprehension by P).
if appropriate, afrming trial court is right
are damages right? courts usually take hands-off approach. deferential to jury (but more review recently)
intent to create imminent apprehension
issue for jury, BZ thinks case is weak on whether there's enough to go to jury on this
doctor has to have an intent to cause apprehension.. not an objective test. (by preponderance of
evidence)
more pressure on specic intent because inchoate
policy arg that one would expect appellate court to make
HR issue, should be dealt with by employer, and then if they fail, case against employer
treat differently from battery at work b/c HR better at evaluating circumstances (how often people yell at each
other, etc.), also bc line of touching not crossed
ignores words alone doctrine
b Intention to create an apprehension of harmful or offensive contact (by preponderance of evidence) (fact)
1 reasonableness standard for immediate apprehension (fact/jury)
c act reasonably causes such an apprehension
A Intentional Torts
ii Elements
b Intention to create an apprehension of harmful or offensive contact (by preponderance of evidence) (fact)
1 reasonableness standard for immediate apprehension (fact/jury)
c act reasonably causes such an apprehension
3 IIED: Intentional Iniction of Emotional Distress
i 3 elements
a 1. extreme or outrageous conduct (threshold issue of law/judge, but actually of fact/jury)
1 many places: issue of law for court, but for jury in some
2 even when issue for the jury (which it is most places), court still monitors threshold
3 no black letter law that you need a campaign and not just an act, but...
4 high bar (Jones v. Clinton example): most conduct is "merely inappropriate, offensive, and/or careless"
Jones sued in Title VII employment discrimination and an IIED claim
judge granted summary judgment on IIED claim (even if everything she said was true, conduct was not outrageous
for purpose of IIED), and because the effect she alleged fail to meet standard for extreme emotional distress
5 shows courts are deeply concerned with the limits of IIED claims, makes them very stringent
6 used for terrorizing by long-term threats
7 can be for conduct directed at another (as in loss of consortium cases) and also to witnesses (per 46(2))
8 Flynt v. Falwell. (mentioned in class): rst amendment can protect IIED Ds when the outraged is politically freighted
and a local jury decides
Judgment for Falwell on IIED b/c Campari ad in Hustler inicted emotional distress.
Flynt appealed on rst amendment grounds, and won. First amendment prohibits Ps from using IIED in lampooning
of public gures in media.
Concept that what is outrageous is highly politically freighted, and when you ask a local jury what is outrageous, you
are doing the opposite of sheltering unpopular speakers
9 164 Mulberry St. Corp. v. Columbia, p. 669. Question of outrageousness where prof sent letter falsely claiming
food poisoning to NYC restaurants is for the jury (although the threshold of outrageousness is a matter of law)
Columbia biz school prof sent letters to restaurants alleging food poisoning
claims for libel, misrepresentation
like Dickens vs. Puryear
courts don't want to recognize any IIED case if there is any case for any other law suit
no essential feature of IIED that requires that it not be some other tort (unlike prima facie tort)
BZ thinks IIED ts better than libel here bc no publication to a third party
courts think tis a catch-all that they don't want tus e unless they have to even if ti's established
D claims behavior was not outrageous
courts are likely to see IIED in sexual harassment as an end-run around sexual harrassment charge
note that underlying charge has a big effect on validity of IIED claim
"the hook" that the guy didn't even go to the human research board, that everyone knows you have to do (wonder if
deliberate evasion)
even if not that strong, strong enough to go to jury.
subtle q of tort law: is outrageousness a fact or law question? "falls in between the cracks" (like prox cause)
technically for jury, but not like duty is
courts have recognized that courts themselves should take a strong hand
b 2. intended to cause Plaintiff distress OR is reckless with regard to risk of P's distress (fact)
1 Can be threat of future harm; no transferred intent with narrow exception for immediate family present
2 Dickens v. Puryear, NC 1981, p. 650. No summary judgment on IIED claim by man beat up and threatened for
sleeping with D's daughter because threat of future harm is IIED and is not assault
facts and PP
P slept with D's daughter. D took him out away from town, beat him, and threatened him with future harm
D's threats cause injury to nerves and nervous system
P says unable to sleep, afraid to go out, afraid to meet strangers, afraid he may be killed, suffering from chronic
diarrhea and a gum disorder, unable effectively to perform his job, and lost income
1 year SoL for A+B
ct. app.: summary judgment for D. facts only show A+B
Issue: can P recover for IIED resulting from battery when statute of limitations has passed on battery but not on the
IIED? (yes)
D's arg: this is an A+B case. Form/substance problem. Should have the same SoL as A+B
P's arg: he has been severely injured with no compensation. special kind of injury that is not captured by assault
or battery (b/c he was terrorized for years to come)
allows for explanation of the delay: want people to wait to see if they can 'get over it'
D's response: all battery claims include outrageous conduct, this is included. every time a P missed the
deadline for SoL, he would get a jury every time
H1: Denition of IIED by court. 3 elements (as above), each with enough evidence to go to jury
H2: States a claim for IIED b/c the threat is for the future (so not assault)
want IIED to be strong enough that it means something but not so broad that it's an end-run around
all of the thing he had to change in his life after the wrong are part of IIED
3 Siliznoff p. 661. Conditional threats of indenite future harm are not assault, but valid tort claim
c 3. does cause extreme/severe distress
A Intentional Torts
3 IIED: Intentional Iniction of Emotional Distress
i 3 elements
b 2. intended to cause Plaintiff distress OR is reckless with regard to risk of P's distress (fact)
3 Siliznoff p. 661. Conditional threats of indenite future harm are not assault, but valid tort claim
c 3. does cause extreme/severe distress
1 severity is part of prima facie case for P: must prove severe emotional distress
ii Damages
a most states allow punitive damages (but IL does not)
b Littleeld v. McGuffey, 7th. Cir. 1992, p. 655. P can keep judgement and atty's fees on IIED in housing discrimination
case
1 Facts and PP
P wanted to rent apartment, and was all set until landlord found out that she had a black bf
landlord harassed her, did not rent the apartment to her, made death threat to her bf
P sues for housing discrimination (civil rights), for which she can get attorney's fees
Jury gave $50k in compensatory damages and 100k in punitive damages and atty's fees; D appeals
2 Issues: was the trial court right in admitting evidence of emotional harm; sufcient evidence to support the damage
awards; atty's fees excessive? (P wins on all)
3 Why add IIED to FHA claim?
damage cap on FHA and not on IIED (but no punitive damages in IL on IIED)
introduce evidence that pertains to IIED claim (limits on ev. of emotional damage in FHA claim)
4 TRESPASS TO LAND/CHATTELS: D interfering with P's right of exclusive control over property
i Elements
a D interfering with right of exclusive control over real property/use or possession of chattel (of OWNER/ACTUAL
POSSESSOR)
1 trespass to chattels: for other than real property (dividing line at attachment/fxiture)
2 OR if permission or consent expires; failure to remove
3 very minimal interferences are actionable (smoke, gas, etc)
b act must be intentional or close (intend the act, not the trespass) (no reasonable mistake defense) (fact)
c unsettled question of actual harm resulting
1 for land, needn't show
2 for trespass to chattel, often need to show harm
ii Burns Philp v. Cavalea, 7th Cir. '98; p. 774. Notice is not an element of trespass, and D can recover damages on its
counter-claim in trespass without having notied P as long as it suffered monetary loss.
a Facts
1 two properties from a divided tract had messed up taxes.
2 Burns Philp mistakenly paid property taxes on land owned by Cavalea
3 Burns Philp sued in restitution
4 Cavalea counterclaimed in trespass for encroaching fence
5 district judge held no damages bc no notice (ignoring that it's strict liability, calling it 'elemental justice')
b Issue: whether lack of notice defeats Cavalea's (in counter-claim) in trespass? (no)
1 Notice is not an element in restatement (consent negates trespass but no consent here)
2 Easterbrook irritated with district judge
c Holding: Cavalea can get damages if it suffered monetary loss
d Easterbrook irritated with litigants because they should've settled out of court
1 not efcient, big companies, etc.
2 no assymetry in fault (may be no fault)
e BZ thinks case shows capacity of common law to be suboptimal in encouraging settlement by being less than clear
between fault and strict liability (TM ?????)
iii Damages for all resulting harm, including punitive damages if willful/wanton
a compensatory plus parasitic property damages that occur in consequence of the essential trespass
b for trespass to chattels, compensation
c Jacques shows punitive damages when no compensatory damages b/c willful and wanton (of driving across land with
mobile home in snow after denied permission, p. 779)
5 CONVERSION: about chattels, not land. interference with right of exclusive possession in property.
i keep the thing, exercise dominion (stealing)
ii has to be intentional, not accidental (but does not require malice, etc) (fact)
iii Thyroff v. Nationwide Mutual Insurance, NY 2007, p. 791. Conversion lies for electronic records, needn't be tangible
a insurance agent gets computers from company, who retain data when he gets red
b agent claims conversion. company claims its only for tangible property
c district court dismissed for failure to state a claim
d Issue: is the claim for the conversion of electronic data cognizable under New York law? (yes)
e uses merger doctrine for stocks, etc
f court says not necessary to have tangible. some data in this fact pattern is such a thing that is allowed
g conversion spreads to electronic data
iv Defenses
A Intentional Torts
5 CONVERSION: about chattels, not land. interference with right of exclusive possession in property.
iii Thyroff v. Nationwide Mutual Insurance, NY 2007, p. 791. Conversion lies for electronic records, needn't be tangible
g conversion spreads to electronic data
iv Defenses
a consent is a defense (see Copeland)
b NOT reasonable mistake
6 NUISANCE: Ongoing and unreasonable interference with another's right to use and enjoy real property
i Ongoing and unreasonable interference with another's right to use and enjoy real property
a doesn't matter who was there rst (no categorical bar for D having been there rst)
b doesn't matter if D was unreasonable, only if its unreasonable to ask P to put up with the disturbance
c Sturges v. Bridgeman, p. 803. Injunction against confectioner for nuisance to a doctor. even though confectioner was
there rst, nuisance is a product of circumstances.
ii injunction is most common remedy
a general rule is D has right to injunction unless would subject D to way too much hardship (outlier test)
b Penland v. Redwood Sanitary Sewer Service District, 1998, p. 812. Sewage treatment is a public nuisance (based on
substantial and unreasonable interference with ordinary reasonable person's use and enjoyment of property) and is
enjoined
1 D operates sewage facility, basically composting sewage, which stinks and makes neighborhood unlivable
2 trial court nds that it is a nuisance and grants an injunction
3 2 Issues: Does the composting constitute a nuisance? (yes) and should it be enjoined? (yes)
4 regulatory compliance does not provide a defense
5 Injunction for nuisance unless hardship caused to D would greatly outweigh the benet resulting to P
6 Although relocating (or other alternative xes) are expensive, equities favor injunction
not clear that expense is more than the cost to Ps
Ds spent after they knew of complaints
as a public utility, they can spread costs
c Boomer v. Atlantic Cement Co., p. 819. Injunction against cement company unless permanent damages paid to
neighbors (licenses continuing wrong)
1 cement company with huge investment was nuisance to neighbors
2 trial court gave damages for injuries but not injunction
3 I: what kind of remedy do you get?
4 Holding: injunction conditioned on payment of permanent damages (so company can pay off neighbors at relatively
low cost)
5 Dissent: this is licensing a continuing wrong. Should enjoin after 18-month respite to improve practices
6 yes, nuisance, but no injunction (utilitarian justication)
iii extra defense: zoning ordinances for nuisance
iv Coase, Calabresi: question of legal structure for allocation (coase theorem: q is deeper than which activity is more efcient)
v trespass and nuisance
a similarities
1 both property torts
2 p can't sue unless P has property interest in both
3 neither requires proof of physical damage
4 neither requires intention to interfere
5 neither requires that D's conduct was unreasonable
b differences
1 nuisance- invasion of right doesn't need to be a boundary crossing in the way it does in trespass. way of interfering
with someone's rights in land by interfering too much with their use and enjoyment of the land
2 nuisance- continuing
3 nuisance- unreasonably interfering
4 trespass- any amount of interference
7 DEFENSES (587)
i Consent: Express and Implied
a Standard: D must actually and reasonably belief, based on P's conduct, that he has consented (subjective and objective)
b Not if fraud or coercion. Failure to disclose can be fraud. Must be knowingly and voluntarily given.
c consent can be void for public policy reasons
d Scope: whether contact was the sort that the P consented to (q for jury). Can be geographically or temporally or spatially
restricted
1 Mohr v. Williams (598): surgery on other ear than consented, won on battery.
2 Copeland v. Hubbard Broadcasting, p. 799. Consent to enter home for vet to treat cat did not extend to
videotaping for news broadcast
Facts and PP
vet went to home of client (P) with assistant to treat cat
assistant was secretly videotaping and secretly working for tv station
report was broadcast including footage in Ps house
trial court granted summary judgment on trespass claim
A Intentional Torts
7 DEFENSES (587)
i Consent: Express and Implied
d Scope: whether contact was the sort that the P consented to (q for jury). Can be geographically or temporally or spatially
restricted
2 Copeland v. Hubbard Broadcasting, p. 799. Consent to enter home for vet to treat cat did not extend to
videotaping for news broadcast
Facts and PP
report was broadcast including footage in Ps house
trial court granted summary judgment on trespass claim
Holding: reverse summary judgment on trespass because consent to enter home was restricted and did not include
videotaping for tv
3 Koffman v. Garnett (VA 2003), p. 588: middle school football, must allege no consent as a matter of law
whether Koffman consented was a matter of fact
court: Koffman can only consent to reasonably foreseeable things
If there was consent, it should really be a negligence claim. Consent because
"no moving target" for consent, once you consent, to everything required
level of specicity of consent was broad, so no claim for battery
policy decision for how carefully to scrutinize consent forms under 12b6 motions.
would have to be gross negligence, because schools have immunity for regular negligence. P here could
denitely prove regular negligence, but maybe also gross negligence
harmfulness is key, so hard to go forward on just offensive touching
defenses
consent
assumed/implied assumption of risk (doesn't quite t here)
so then have to show gross negligence, you have to have greater risk than assumed
e Implied Consent (Wagner): the consent implied by the situation; esp. for inherently dangerous activities
use history of parties
used situation
ii Self-Defense or Defense of Another ("awkward t" problem of balancing tort law's intent to protect bodies against its
intent to have legal rather than private redress)
a D must actually and reasonably believe force is necessary to injure another to avoid imminent injuries to self (in light of
circumstances)
b reasonable mistake of fact doesn't exonerate (although cases including Mullens come out the opposite way)
1 false but reasonable belief that P consented serves as defense in such cases
c often not if D precipitates situation
d must be proportional (deadly force has conditions)
1 deadly force only justied when actually and reasonably perceives that he is being threatened with death or SBI
safe retreat req't for deadly force (not in dwelling)
deadly force for attack in dwelling
2 Haeussler v. DeLoretto (Cal. App. 1952), p. 599. Neighbors arguing about dog. Necessity of force and amount of
force are questions for fact-nder.
e Retreat: courts split on duty to retreat, but second restatement says non-deadly force is ok, but deadly force not, in lieu
of retreating
f no defensive use of another (shield)
iii Protection of Property (shows limitations of self-help)
a for momentary but not long-term possession (to encourage legal redress rather than self-help). 'recapture,' not against
peacable possession
b no mistaken belief allowed
c requires warning
d Katko v. Briney (Iowa, '71) p. 603, abandoned farmhouse with springloaded shotgun. NO DEADLY FORCE TO
PROTECT PROPERTY
1 P, burglar, breaks in, gets shot, spends 40 days in hospital, sues for battery, gets $20k in compensatory (incl. pain
and suffering) and $10k in punitive damages.
2 Defense failed because D used too much force in curciumstances where it was not allowed (not in face of deadly
force or proportional threat)
dependent on denition of threat as losing old bottles or protecting home
fundamental problems even if defending home theory
no warning signs (exceeds privilege)
in bedroom, not front door
covered bedroom window to make sure ppl didn't know
never lived there
both of the above and others are fundamental weaknesses in fact pattern to show intent to protect rather than
vindictive impulse
3 Dissent: can't tolerate punitive damages, but P didn't bring up damages, so not preserved for appeal
thinks wrong on compensatory damages, too.
D exceeded his privilege, but we should remand for new jury instruction to make nding on intent to injure (P says he
only intended to scare
4 So what should Briney have done?
had something posted
had an alarm? This costs $. People's right to be free of this kind of invasion includes the right to self-help?
A Intentional Torts
7 DEFENSES (587)
iii Protection of Property (shows limitations of self-help)
d Katko v. Briney (Iowa, '71) p. 603, abandoned farmhouse with springloaded shotgun. NO DEADLY FORCE TO
PROTECT PROPERTY
4 So what should Briney have done?
had something posted
had an alarm? This costs $. People's right to be free of this kind of invasion includes the right to self-help?
hypo of dog at a scrap-yard trained to kill
iv Privileges: others, depending on jurisdiction (privileges)
a police brutality cases are battery cases where you have to argue that privilege has been exceeded
v Necessity: only a defense to TRESPASS. limited necessity privilege to do what's reasonable, but must pay back (Vincent)
a Prosser, etc.: there is a privilege, but it's an incomplete privilege (allowed to do it but have to pay for damage)
b another take: just a trespass, no privilege. can be reasonable to do something that there's no legal privilege to do.
shows that trespass doesn't involve faulty conduct in a moral sense
c Vincent v. Lake Erie, p. 784. Docking ship in storm (and causing damage to dock) was reasonable under
circumstances, but still produces liability because deliberate action caused damage.
1 Ship docked during storm to unload cargo. weather too bad to move; ropes changed; $500 damage to dock
2 D: necessity argument, comparative damage argument, reasonable thing to do under circs argument
consent only as long as time to unload (so stays past contract)
D intentionally shifted risk of injury to P by overt acts (explains focus on changing ropes)
3 so no wrong, but liability (question of theme of torts being about wrongs?)
4 in brown v. kendall, mere causing of damage isn't sufcient to generate liabitlity
vi Immunities: (sovereign, family, charitable)
vii All Civil Litigation
a personal jurisdiction
b venue
c state a claim
d res judicata
e statute of limitations
8 DAMAGES (fact/jury)
i Compensatory
a economic (costs, lost wages, medical, property damage, past and future income, etc)
1 EVERYTHING owing from tort (Vosburg), not limited by foreseeability
b non-economic (pain and suffering)
1 Cecarelli v. Maher (CT, 1943), p.552: assault and battery in New Haven
compensation for costs ($315) plus pain and suffering and permanent injury ($2k)
compensatory damages for a non-economic cost, recognizes inadequacy of pecuniary damages. Not punitive but
similar.
He's already been punished criminally, so why is this permissible?
SCOTUS says double jeapoardy does not aply to punitive damages
is there something between punishment and compensation that allows the imposition of this?
about victim's right to be compensated, not state's need to inict punishment for wrongdoing
Court looks to be measuring lost wages. Would he have gotten less if he hadn't had a job? Fair to give less to poor
people than rich people? (9/11 compensation fund). Measures where you would have been without wrongful action.
ii Punitive (for malicious or willful wrong, or reckless disregard for P's well-being)
B Negligence
ISSUE SPOTTER CHECKLIST
i Duty
a what type of harm?
1 physical
afrmative course of conduct by D
direct cause of physical harm to P
privity issue?
duty to rescue?
2 non-physical
economic? (special relationship)
emotional?
zone of danger?
physical impact?
bystander?
b moral vs. legal
c foreseeability of risk
d special relationship? (Tarasoff factors)
e if landowner, invitee, licensee, or trespasser?
ii Breach
a foreseeability
b warning for special precautions/notice
B Negligence
ISSUE SPOTTER CHECKLIST
ii Breach
a foreseeability
b warning for special precautions/notice
c custom (always relevant, never dispositive) (TJ Hooper)
d legality and preemption
e feasible precautions not taken
f res ipsa? must be more likely than not that:
1 event ordinarily does not occur in the absence of negligence
2 instrumentality of harm exclusively in D's control
3 not due to voluntary action on part of P
g Hand formula
h for ordinary care, talk about reasonably prudent person and about delivering standard to jury to think about reasonably
prudent person under the circumstances
i negligence per se: must conform to the four factors (type of person, type of harm, type of relationship, , type of injury)
iii Causation
iv Injury
v Defenses
a implied assumption of risk
b express assumption of risk
c comparative negligence
d sovereign immunity
e statutory immunity
f family immunity
g charitable immunity
h preemption
Elements
Duty (issue of law)
Physical Harm
1 general rule that there is a duty when there is afrmative conduct by D that is the direct cause of physical harm to
P when harm is foreseeable, with some exceptions.
afrmative course of conduct by D
direct cause of physical harm to P
Even with physical injuries caused by active conduct of D, sometimes still no duty (found by court, not jury) if not
foreseeable
Privity (policy: oodgates): originally, no duty without privity, with small exception for "thing of danger"; Since
MacPherson, presumption of no privity req't, just foreseeability
Winterbottom v. Wright(1842), p. 55: the privity rule. coaches for postmaster general with broken wheel only
enforceable by postmaster general, not injured employee. Duty limited to contracting parties. initially limited
products liability
Thomas v. Winchester (1852) p. 57: mislabeled poison is "imminently dangerous," small exception to privity rule
natural and inevitable damage to public upon breach of duty
imminent danger to human life
nature of business and risks incident to its mismanagement
Loop v. Litcheld (1870) p. 58: machine with patched wheel, followed privity rule
Losee v. Clute (1873) p. 58: steam boiler mfcturer had no duty of care to lessee user
Devlin v. Smith (1882) p. 59: painter's scaffolding kills guy, constructor liable bc imminently dangerous product
Heaven v. Pender (1883) p. 53: duty to use ordinary care even without contract in situations that demand it, with
reasonably foreseeable harm
Torgesen v. Schultz (1908), p. 59, aerated water is also inherently dangerous instrument (based on
Winchester)
MacPherson v. Buick (NY 1916), p. 59. (Cardozo). Buick owes duty beyond retailer for exploding wheel b/c
foreseeably dangerous. Shatters privity rule as principal rule with "dangerous thing" exception
Cardozo adopts Winchester rule over Winterbottom rule, expands it beyond inherently dangerous things
overrules Winterbottom and places obligation from law, not from contract
Why would privity (k arg) defeat tort claim?
must have duty for negligence
duty coming from contract, but doesn't run to claimant
if that's the only duty, Buick wins
Buick can back this up with Winterbottom (RULE: no cause of action in negligence when wheel
collapses on vehicle and no privity between P and D.)
no legally cognizable right not to be harmed by negligent conduct of D without contract.
in Winchester, small exception to privity rule. Inherently dangerous or imminently dangerous takes you
out of privity rule ("thing of danger rule"). But case acknowledges and agrees with Winterbottom.
Cardozo keeps thing of danger doctrine, but says not cars in general but as in the case here. As long as a
thing can become dangerous. not just things created to be dangerous like poison. but still limited by
probable and reasonably certain (limit gone in today's law, which is closer to foreseeability). Limits:
B Negligence
Elements
Duty (issue of law)
Physical Harm
1 general rule that there is a duty when there is afrmative conduct by D that is the direct cause of physical harm to
P when harm is foreseeable, with some exceptions.
Privity (policy: oodgates): originally, no duty without privity, with small exception for "thing of danger"; Since
MacPherson, presumption of no privity req't, just foreseeability
MacPherson v. Buick (NY 1916), p. 59. (Cardozo). Buick owes duty beyond retailer for exploding wheel b/c
foreseeably dangerous. Shatters privity rule as principal rule with "dangerous thing" exception
Cardozo adopts Winchester rule over Winterbottom rule, expands it beyond inherently dangerous things
Why would privity (k arg) defeat tort claim?
in Winchester, small exception to privity rule. Inherently dangerous or imminently dangerous takes you
out of privity rule ("thing of danger rule"). But case acknowledges and agrees with Winterbottom.
Cardozo keeps thing of danger doctrine, but says not cars in general but as in the case here. As long as a
thing can become dangerous. not just things created to be dangerous like poison. but still limited by
probable and reasonably certain (limit gone in today's law, which is closer to foreseeability). Limits:
reasonably certain
knowledge that danger will be shared (harmonizes Losee v. Clute)
not too remote
reasonable belief nobody else checking besides you
only nished products
limits are for compromise and to make change look incremental (but did eliminate privity rule by and large)
cites Heaven on right to sue in negligence extending to persons for whose use the thing is supplied
responsibility is to class of invited users, whether determinate or not
Question of whether this case constitutes an alteration in the law
Posner: well-crafted opinion that manipulates precedent, to adapt to industrial revolution. changes unfair
rule by dressing it up. (great example of judicial craftsmanship but also duplicity)
Torgeson and Devlin are already on books and t this opinion (not inherently dangerous things). And
Statler (coffee urn)
Dissent (Bartlett)
thing of danger
carriage analysis of Winterbottom holds and CL proceeds through analogy
privity
Strauss v. Belle Realty (NY 1985), p. 453. Limits liability of landlord after massive NYC blackout based on
'contractual relationship' to limit liability (oodgates)
dissent: burden on D to show necessity of limiting
shows NY Ct. App. willing to resurrect privity in what seems like a misfeasance case
reaches a pretty strong no duty rule with signicant fear of oodgates problem
Mussavind v. David (OH 1989), p. 67: STD from affair to husband, husband sues, court allows negligence claim
to proceed b/c reasonably foreseeable
Issue: Did David have duty of care to Mussavind? yes.
duty to prevent spread: to use reasonable care to avoid infecting others
denitely to partner
ISSUE: to spouse?
duty is a question of law (for court to decide) and non-formulaic, policy-based, considering
history
morals
justice
convention
social justice
standard: ordinarily reasonable and prudent person
duty to abstain or warn (extends to P if foreseeable that he would be injured)
foreseeable that spouse would be injured
limited: if wife knew or should have known
oodgates problem? this person (P) is very foreseeable, but does this limit?
duties are generally about doing something . use care to others not to cause foreseeable injury (Heaven)
2 Nonfeasance. Generally no afrmative duty to act (to rescue or protect):
liberty-based objections to generalized duty to rescue
Failure to use reasonable care for P's benet: no duty. Threshold of prevention of care.
Childs v. Desormeaux 2006 CarswellOnt 2710 (handout). No duty for social hosts whose alcoholic guest got in
a car accident, severely injuring P.
Ds had BYOB new years party, invited alcoholic friend who they knew had had problems. man leaves, has
terrible crash. Childs has to use wheelchair forever
Childs sues driver and hosts of party. hosts say no duty
court: no liability because nonfeasance case without afrmative duty (BZ agrees). don't want tort law to be too
intrusive
NO DUTY unless
bar (covered by statute). DRAM shop acts to make liability for commercial establishment
for social host, if drinker is minor or underage
here, legal drinking by competent adult
in the US: a few courts recognize such a duty (like NJ) under common law (but in all such jurisdictions,
legislatures overruled the courts)
No general duty to rescue unless: D caused risk/danger/injury; Special Relationship; or Voluntary Undertaking
to Rescue
caused risk/danger/injury (Osterlind)
Osterlind v. Hill (MA 1928), p. 76. D leased canoe to drunk people and ignored calls for help. NO DUTY so
no liability found.
B Negligence
Elements
Duty (issue of law)
Physical Harm
to Rescue
caused risk/danger/injury (Osterlind)
Osterlind v. Hill (MA 1928), p. 76. D leased canoe to drunk people and ignored calls for help. NO DUTY so
no liability found.
Court nds moral but no legal duty
"kinds of questions" BZ says to ask in cases like this
1. True that there is no legal duty to rescue? (question about how the law looks)
2. Is there a moral duty to rescue?
3. Is moral duty sufcient ground for legal duty?
today's negligence law would impose duty here bc of special relationship
contractual arrangement and fact that Hill owns boat and makes money off of it
if you create a risky situation (perilous for P) negligently or non-negligently, then you owe non-
contractual duty
might not go in non-feasance at all, but afrmative action in creating the risk. Not obvious that Hill did
not create injury
Voluntary Undertaking to rescue (reas. duty to use care). good samaritan immunities
Van Horn (supp.): woman who pulled her friend from burning car: not "emergency medical care," which is
immunized under good samaritan statute, so liable for friend's paraplegia.
court accepts emergency medical care is different from "emergency care" and says this isn't covered,
imposes liability
"addressing complex of motivations of how we want people to respond to emergency situations"
Special Relationship (Tarasoff, Baker), 314A
Duty found, based on Factors (Tarasoff Factors)
foreseeability of harm to P
degree of certainty that P suffered injury
closeness of connection between D's conduct and injury suffered
moral blame attached to D's conduct
policy of preventing future harm
extent of the burden to the defendant
consequences to the community of imposing a duty to exercise care with resulting liability for breach
("oodgates factor")
availability, cost, and prevalence of insurance for the risk involved
Baker v. Fenneman (taco bell) (IN 2003), p. 77. Customer falls in taco bell. Duty to care for invitee even if
not the cause of the injury.
Issue: duty to assist customer who falls? (yes). 3 factors (STANDARD):
relationship between parties (314A)
special obligation to help/rescue invitee
(unlimited) duty to rescue invitee in peril
reasonable foreseeability of harm
public policy concerns
storeowner derives economic benet
PP: trial court: no duty. now: duty but question of material fact on whether employee offered assistance.
(Also, if call would've made no difference,then no caused injury)
D argues: not the instrumentality of initial injury so no duty as a matter of law
also that not trained to handle
if duty imposed, so much liability as to put P out of business
P argues: special relationship for business invitees 314A
Tarasoff v. The Regents of the University of California (CA 1976), p. 119: Parents of girl killed sue
psychiatrist, psychologist, police, and employer for negligence (on special relationship between patient and
doctors). Relationship between patient and doctors is enough for victim to establish a duty and to go to court
on breach of duty.
Parties' args
P's Arg: Negligence alleged to have caused the harm:
failure to commit
failure to warn victim
D's Arg: no duty of care
Nonfeasance case, with default rule of no duty. Exception is for special relationship, which is usually
with victim (always was, prior to this, in CA, although other states had some exceptions)
Question of case: is special relationship with assailant enough for duty?
special relationship names the kind of relationship in which a court nds a reason to impose a duty of
care (so works differently in different contexts, like accountant, lawyer, babysitter, etc))
injury-inicting
afrmative duty to protect against injury to third party
when psychs knew or should have known an identiable victim (rule in some jurisdictions)
if psych knows of a danger, duty to inform public/conne person (other jurisds)
B Negligence
Elements
Duty (issue of law)
Physical Harm
to Rescue
Special Relationship (Tarasoff, Baker), 314A
Tarasoff v. The Regents of the University of California (CA 1976), p. 119: Parents of girl killed sue
psychiatrist, psychologist, police, and employer for negligence (on special relationship between patient and
doctors). Relationship between patient and doctors is enough for victim to establish a duty and to go to court
on breach of duty.
Question of case: is special relationship with assailant enough for duty?
special relationship names the kind of relationship in which a court nds a reason to impose a duty of
care (so works differently in different contexts, like accountant, lawyer, babysitter, etc))
when psychs knew or should have known an identiable victim (rule in some jurisdictions)
if psych knows of a danger, duty to inform public/conne person (other jurisds)
Arguments that there shouldn't be a duty
makes psych 'babysitter' for person he's never met?
how many people could he have to warn? what if patient threatens to blow up a neighborhood and
the duty is not discharged by going to the police?
Methods for deciding whether to recognize duty (how should court decide)?
not clear what method they used here
on its face, same method as in Rowland
seems like: forget lines of authority on Common Law duty and just say nothing extra besides
unreasonable action, causation, and harm
(deciding if they want a cause of action in certain kinds of situations, and then marking duty or no
duty)
p. 111: general duty of ordinary care from everyone to everyone else, with exceptions as justied by
factors (Tarasoff factors):
Major Legal Realist stance of case: Legal duty is just a label, constructive, a policy issue that courts get to
decide and then make a policy decision thereby (p. 122)
Practical Concerns
greater danger for society if people can't trust their shrinks, are deterred from going, etc. (dissent
argues this but we still lack evidence)
psychs can't predict behavior that well
worries about violations of privacy/condentiality
in part an issue because of strictness of CA's privacy requirements (from dinstitutionalization
movements in 60s, 70s, 80s)
cynical reading: risks of deinstitutionalization and higher standards of commitment while keeping
hostility to psychiatrists (but not police, who are not liable)
Did Dr. do everything he should do? (assuming there was a duty, was there a breach?)
conned and contacted police
case has bizarre result, because even if there was a duty, it wasn't breached
vs. Rowland (eliminates categories for landowner liability); vs. MacPherson (eliminates privity)
similarities to Rowland
similar language
simlar decision
open about policy reasons
Maybe Tarasoff more like MacPherson, very different from Rowland
given the picture of degree of danger they perceived, they were situated to save the woman and
society depends on them to act on it
trying to build on resources already in common law and push law in new way with what's already
there
More of a common law/jurisprudential approach than Rowland, but with similarly progressive ideas
3 Landowner Liability/Premises Liability (dangerous condition, not dangerous activity) (for tenant, possessor,
landowner)
Using 3 (interstitial) categories, liability turns on status of P, even though it's arguable whether the status of P has
any relation to justications in tort compensation/liability)
invitee (highest status, most liability). duty of ordinary care
there for business purposes, mutual advantage
people invited with the expectation of benet, and come with expectation of benet
even in jurisdictions that have retained the tripartite distinction, might be more open-minded with regard to
who is an invitee
once it's open to public, and people are there with permission
churches, not-for-prots, etc.
reliance by invitees on it being a place where they will be safe
families and regular guests of a tenant are generally invitees
licensee (and trap rule). willful or wanton or trap rule
there with permission, no business (having a friend over)
Trap Rule: willful or wanton OR if there are dangerous things that possessor knows or should know, and
wouldn't be obvious to a person of ordinary care, duty to warn.
has to be gap between D's knowledge and P's knowledge (or what D should have known)
trespasser (lowest status). no duty of care (willful or wanton injury)
intentionally enter and it is, in fact, property over which someone else has exclusive control. can be without
fault/knowledge
become a trespasser if you go where you're not supposed to be within a place that you're an invitee
at Common Law, almost no duty of care to trespasser (no right to recover from landowner whose dangerous
property you had no right to enter). Historical rule that you had no right to sue b/c you're there against right
incentivizes non-landowners to be vigilant
B Negligence
Elements
Duty (issue of law)
Physical Harm
landowner)
Using 3 (interstitial) categories, liability turns on status of P, even though it's arguable whether the status of P has
any relation to justications in tort compensation/liability)
trespasser (lowest status). no duty of care (willful or wanton injury)
at Common Law, almost no duty of care to trespasser (no right to recover from landowner whose dangerous
property you had no right to enter). Historical rule that you had no right to sue b/c you're there against right
incentivizes non-landowners to be vigilant
blame argument (P's fault that he was there. P was 'bad' for trespassing). Even with absence of intent or
'badness' (as potentially true in Lefer), still on land without right, counts against being able to recover
(relevant that you're outside your rights to ability to extract damage reward)
no reason to force possessor to provide compensation (no good reason argument)
commensurate with idea of comparative or contributory negligence, which used to completely bar recovery
(P's fault is part of chain of events). Comparative negligence still exists
argument that duty of care is not owed to trespasser survives the end of these categories (exceptions
involving kids: attractive nuisance)
Lefer v. Sharp (Miss. 2005), p. 88: Lefer fell off roof of Quarter Inn (out smoking), was a trespasser, no
duty breached
Three-Pronged Test
classify person
invitee
licensee (permission)
trespasser
determine what duty pertains
for trespasser: refrain from willfully or wantonly injuring the tresspasser
determine if duty breached
P would want to articulate a cause of action without regard to duty. Would say D should have
repaired the roof (lease didn't cover roof)
barred the windows (either of them)
warned, with better signs
gotten the people already outside to come in
P: even if I'm a trespasser, no summary judgment because issue of fact (duty is an issue of law): whether
permitting people to go on roof that you know is in bad repair is wanton (extreme recklessness). court
rejects this argument (BZ thinks correctly). too strong to describe actions here. Lefer probably didn't
know he was a trespasser.
If he were a trespasser, benets in still being allowed to sue:
deter activity that makes people think they can go somewhere they're not supposed to
make landowners have safer places
Not an invitee b/c going on the roof was trespassing, so lower court correctly granted summary judgment.
D supposedly carries burden of establishing duty, but seems like P did here
BUT window should've been barred. Quarter Inn was negligent. They thought through the issue, realized
it was a problem, made a plan to weld bars to the window, but didn't follow through. BZ says this is
negligence
Free and Quarter don't lease roof. Removes argument that they should have xed roof. Real negligence
is failure to bar window (different theory of the case). Letting invitees do dangerous thing. Obligation to
invitees stands. "Attractive nuisance for drunk people."
Rowland v. Christian (Cal '68), p. 110. Licensee badly hurt on broken faucet. Court strikes tripartite distinction and
makes general duty of reasonable care. Eliminates doctrinal categories in favor of spreading liability. (BZ wants to
make us sympathetic to Rowland court even though it's his 'mission' to defeat it).
Holding: D was negligent, and life and limb worth just as much in houseguests as in business guests. Proper test
is reasonable in view of probability of injury to others.
allows recovery in this case
court doesn't want to keep operating highly nuanced concepts and think that the whole way of thinking is
wrong
Cites statute 1714 (p. 111) and legislative supremacy
usually, common law eshes out statute (BZ says this arg is a lot of bluster bc statute is articulation of basic
principle and values, doesn't do any real work)
uses to bolster its position bc it's doing something unusual
Get rid of categories because:
statutory argument
argument of principle (p. 114), "man's life or limb..." status of the three categories shoudln't determine
whether a person should be able to recover
considerations relevant to taxonomy of categories have no plausible connection to values underlying
compensation for harm to life and limb
Is the question of the value of life and limb the right initial question? one could argue that tort law cares
about blameworthiness of D rather than value of life and limb of P. Less blameworthy based on level of
care due
no reason to cut through categorically, just send it to jury
latches on to idea that part of the purpose of tort law is to be a system for compensation for people with
serious physical injuries, which doesn't vary with reaoson for being on the land ("peculiar assumption that
that's what tort law's about")
B Negligence
Elements
Duty (issue of law)
Physical Harm
landowner)
Rowland v. Christian (Cal '68), p. 110. Licensee badly hurt on broken faucet. Court strikes tripartite distinction and
makes general duty of reasonable care. Eliminates doctrinal categories in favor of spreading liability. (BZ wants to
make us sympathetic to Rowland court even though it's his 'mission' to defeat it).
Holding: D was negligent, and life and limb worth just as much in houseguests as in business guests. Proper test
is reasonable in view of probability of injury to others.
Get rid of categories because:
no reason to cut through categorically, just send it to jury
latches on to idea that part of the purpose of tort law is to be a system for compensation for people with
serious physical injuries, which doesn't vary with reaoson for being on the land ("peculiar assumption that
that's what tort law's about")
Counterarguments, in favor of categorical rule
people should have the liberty to make decisions about their premises, what they owe others given the
type of thing they're doing (this cuts both ways)
carve out various kinds of spaces for different levels of relationships. Allow different for houseguests and
customers (don't foster litigation among friends; costs to 1-size-ts-all level of requirement/care)
practical considerations (court management; how much insurance ppl need to carry)
Common Law has latched on to social norms about duties of care which get at peoples' expectations
Dissent: To promote reasonably stable, predictable rules. To be the oodgates
majority is upsetting expectations (has authority to change law, but has duty to predictability because of its
high costs to actors in the system)
problem of judicial activism? Dissent accuses majority
says nobody ever thought that statute governed before
language is too bland to be self-executing, so law only comes from interpreting
reexamine text closely for restriction
BZ thinks court wanted to overturn the system. P could have argued that even though he's a licensee, failure to
warn of dangerous condition that D knew of falls under trap rule
4 5 Big Issues on duty and legal realism (Rowland Court vs. MacPherson (Cardozo))
Rowland Court shows unusual degree of willingness to alter landscape in this area: "activist"
Cardozo could be seen as doing a similar thing, or just as getting rid of privity rule but following duty
Duty element in negligence law is makeway, non-essential to understanding the wrong, doesn't do any work
Cardozo: uses duty element to recognize claim between Buick and MacPherson. Says negligence law is about
failing to take care
Structure of negligence law: 3 elements not 4 (carelessness, causation, and injury)
Cardozo: toward someone you have obligation to take care for
Nature of Tort Law and Liability and its purposes: injured person entitled to have injury's causer pay. It's a cost-
shifting mechanism with fault as its basic principle (using 7 'tarasoff factors' on measuring countervailing interests
that can defeat)
Cardozo: tort liability not about shifting losses, about one whose right has been invaded, like battery law
Picture of nature of law and adjudication (legal realist view)
court doesn't think it makes sense to believe that words/concepts have any particular content besides those the
lawyers argue (ie duty, etc)
Myth that law constrains what you can decide in a case
alternative: judges are just people, courts are just political institutions, just make judgment calls about reasonably
sensible rules to make blameworthy actors liable
Cardozo: we don't want our judges to be philosopher kings/making up moral philosophy, but DO want them to
push forward language and concepts already there (or change it but seem to defer to it?)
Distrust of normatively tinged language
special contempt for word duty as epitome of bullshit
bad faith exercise in rationalizing the limitation of liability
Non-Physical Harm
1 Pure Economic Harm: General rule of no duty to take care to avoid causing others pure economic harm
Caveats: must be pure economic harm; must be negligently (not intentionally) caused (intentional wrongdoing with
pure economic harm is actionable, but not in negligence)
Exceptions: special relationship, then have duty to care for pure economic well-being
Accountants: Ultramares Corp. v. Touche (p. 108) foundational accountant liability, when acct failed and
creditors suffered and acct knew of creditors and their use for the info, they were liable
Lawyers (sometimes even non-clients, like beneciary of will)
Aikens v. Debow (WV 2000) p. 97. Econo-Lodge operator sues truck driver who broke the access ramp by which
customers would access motel for lost prot. No recovery b/c no physical injury and no special relationship
Circuit Court requested certication on: no physical damage but econ can maintain negligent injury action for
pure econ loss? (no)
Duty factors
foreseeability of risk
remoteness
identiability
probability of damage
special relationship
policy
injury
burden
consequences
B Negligence
Elements
Duty (issue of law)
Non-Physical Harm
1 Pure Economic Harm: General rule of no duty to take care to avoid causing others pure economic harm
Aikens v. Debow (WV 2000) p. 97. Econo-Lodge operator sues truck driver who broke the access ramp by which
customers would access motel for lost prot. No recovery b/c no physical injury and no special relationship
Duty factors
policy
burden
consequences
"scope of the risk which negligent conduct foreseeably entails" (100)
Court is worried about restricting over-expansion of duty as a matter of policy, even though lodge owner got
screwed. Floodgates issue.
2 NIED: Emotional Harm: General rule of no duty with two exceptions
Caveats
Caveat: there are categories of damages you can get if you have a predicate injury ("parasitic")
Caveat: if D was acting intentionally to bring about emotional harm
Caveat (possible third): physical harm, as in Robb, with no physical injury
Exceptions/ 3 types of rules limiting/allowing recovery in NIED
Special Relationship with obligation to be vigilant of another person's well being (morticians, psychiatrists).
Most states don't articulate the special relationship doctrine, even though it exists.
Lauer v. City of New York 95 NY2d 95, '00 (handout). medical examiner did not have any special duty to
parents not to negligently inict emotional distress b/c acting in ministerial duty
BZ doesn't like the way the case comes out
majority said NIED case could move forward if four claims met (factors show special reliance/relationship).
said factors not met
(1) an assumption by the municipality, through promises or actions, of an afrmative duty to act on
behalf of the party who was injured;
(2) knowledge on the part of the municipality's agents that inaction could lead to harm;
(3) some form of direct contact between the municipality's agents and the injured party; and
(4) that party's justiable reliance on the municipality's afrmative undertaking.
Dissent (Smith) says requirements are met
Dissent (Bellacosa) says obviously there's a duty because the examiner created the peril, thus has duty to
correct
BZ thinks similar to libel claim bc most of the damage is reputational
moral question of what the guy should've done. (formalism, how formalistic should we be, how intertwine
legal and moral)
old-fashioned rule: impact rule. no recovery unless physical impact (minority rule)
ambiguous between 3 ideas: parasitic damages on physical injury ; vs. no recovery unless causal
connection mediated by actual physical touch (touch as limit/physical proof); or physical manifestation of
emotional harm
Wyman v. Leavitt, (1880) p. 700. No recovery for negligently doing construction near P's house which
caused woman emotional distress about harm to her safety and her child's safety. No NIED action b/c
oodgates.
bystander/family members (Dillon v. Legg; Thing v. La Chusa)
No duty argument frequently fails for secondary actors in accidents who witness harm to loved ones. CA has
stretched and said she doesn't need to be in zone of physical danger
Criteria:
family member
whether it's witnessed
whether the person is in the vicinity
whether its contemporaneous
if contemporaneous, witnessed, and family memeber, then denitely foreseeable
Dillon v. Legg, Cal. 1968, p. 734. Mom can recover for watching daughter get hit by a car, even though
outside the zone of danger, because harm to her is foreseeable
kid is hit by a car, sister is with her and almost hit, mom watches but is outside the zone of danger
CA has zone of danger rule. so sisters can recover (one hit and one not hit) and mom can't recover (under
Amaya)
CA supreme court (had already done Rowland, Tarasoff, limiting negligence law based on idea of no
universal duty) says they don't believe in duty. what matters is foreseeability. duty is a policy shorthand
in running down a kid, nothing more foreseeable than devastation to witnessing family member,
whether or not they're in the zone of danger
no reason not to say there's a duty. as long as there's foreseeability, there is a duty.
Holding: as long as foreseeable and low risk of fraud, then can recover. (RULE)
in a case that involves emotional harm, criteria for foreseeability
family member
whether it's witnessed
whether the person is in the vicinity
whether its contemporaneous
if contemporaneous, witnessed, and family memeber, then denitely foreseeable
Thing v. La Chusa, Cal. '89, p. 741. Explicitly limits Dillon recovery to close family members who are present
at the time of the injury and witness (rather than Dillon's 'guidelines' approach)
terrible injury to child. mom shows up minutes later and sees child suffering and is traumatized
B Negligence
Elements
Duty (issue of law)
Non-Physical Harm
bystander/family members (Dillon v. Legg; Thing v. La Chusa)
Thing v. La Chusa, Cal. '89, p. 741. Explicitly limits Dillon recovery to close family members who are present
at the time of the injury and witness (rather than Dillon's 'guidelines' approach)
terrible injury to child. mom shows up minutes later and sees child suffering and is traumatized
D says no duty b/c not contemporaneous
P says that dillon v. legg is about the idea that we shouldn't be erecting fabricated, arbitrary barriers. if
there's real harm that hasn't happened in a uke way and because of negligence of D, then people should
be able to recover, and duty is just a label to organize
in principle, valid. recognize authenticity of harm
court says law is an arbitrary line, so we have to stop here
Issue: Are Dillon guidelines valid/useable? Need clear guidance for courts, Ps, and Ds, with certainty and
reasonable limits. Must be more than a reasonable person would suffer
limits are inherently arbitrary but necessary
technically reiterated Dillon but as a practical matter, need to limit beyond foreseeability, so takes Dillon
and makes the rule hard and fast
from Dillon and Thing, you get something "distressing" (to BZ): Dillon eliminates an arbitrary line (of the zone
of danger) and Thing brings back a different arbitrary line. BZ thinks these are back-door loss of consortium
cases (want to recognize a right of redress/vindication/symbolic recovery (but no duty not to cause emotional
harm), but don't try to squeeze it into common law framework of duty)
**20 jurisdictions. zone of danger rule. if P was physically imperiled by negligent conduct of D, but only injury
suffered was emotional injury, then P can recover
kind of like assault, the negligent equivalent thereof. near-hit and you recover for the apprehension/fright
Waube v. Warrington, (WIS 1935), p. 731. NIED limited to shock caused by peril to P (as limited by duty), so
no recovery for shock from witnessing daughter's death through window
P was watching through window as daughter crossed the street. D hit daughter with car and killed her.
Issue: can someone not in peril recover for fright? (no)
frames as issue of duty, not proximate cause
fear must be of one's own safety, and does not extend to parent/child
policy balancing question of how far to extend duty: don't want too much liability, but no clear-cut stopping
point, so stop with peril to P.
Robb. v. Pennsylvania RR Co., (1965) p. 701. Woman almost hit by train b/c her car was stuck in
negligently created ditch can recover injuries from fright because she was in the zone of danger even
though there was no touching (rejects 'physical impact' rule)
car stuck in train tracks, runs just in time not to get killed. suffers extreme emotional harm and stops
lactating.
(think of it as a physical harm case). she gets physicall ill as a result of the trauma, and trauma only
occurred as a result of D's negligence
doesn't really t in the framework above
mechanism of harm is fear. predicate injury is physical harm, but mechanism is fear
property damage has not supported recovery for emotional harm damages. only emotional harm
damages parasitic upon bodily injury
physical impact rule based on three ideas (each rejected)
fright does not give cause of action
requisite causal connection unprovable
public policy/expediency
courts have obligation to provide compensation when it is obviously due, as here. exclusion of this kind of
damages is arbitrary
"where results, which are regarded as proper elements of recovery as a consequence of physical injury,
are proximately caused by fright due to negligence, recovery by one in the immediate zone of physical risk
should be permitted."
Consolidated Rail Corp. v. Gottshall, SCOTUS 1994, p. 705. Adopts zone of danger rule under FELA for
NIED claims
Facts of (Gottshall and Carlyle, two cases decided together)
Gottshall: P was trying to x RR tracks, working under extreme conditions (really hot, no water), saw
another worker die of a heart attack while working
P got cold sweats, nightmares, got worried that he would suffer the same fate
want to link heedlessness of employer to emotional harm of P. were heedless as to whether guy
died, and also to the trauma that everyone else would experience under these circumstances
partly a duty issue: is there a duty to be igilant of the emotional well being of certain people, and is
there a plausible claim here by the P that there is such a duty and that duty was breached?
is there negligence as to emotional well being of these employees under these circumstances? (q
for p's lawyers to be able to answer)
Carlyle: clearer claim that employer was negligent to P's well-being
P worked in train yard as dispatcher, was forced to work crazy hours and couldn't handle the stress
court doesn't think it's plausible that federal RR statute could cover emotional harm for working too
much
Issue: what constitutes injury in emotional distress caused by negligence? (mental distress that is not
equivalent to pain and suffering: negligent conduct has caused pure emotional harm). Limit by zone of
danger test
B Negligence
Elements
Duty (issue of law)
Non-Physical Harm
**20 jurisdictions. zone of danger rule. if P was physically imperiled by negligent conduct of D, but only injury
suffered was emotional injury, then P can recover
Consolidated Rail Corp. v. Gottshall, SCOTUS 1994, p. 705. Adopts zone of danger rule under FELA for
NIED claims
Facts of (Gottshall and Carlyle, two cases decided together)
Carlyle: clearer claim that employer was negligent to P's well-being
court doesn't think it's plausible that federal RR statute could cover emotional harm for working too
much
Issue: what constitutes injury in emotional distress caused by negligence? (mental distress that is not
equivalent to pain and suffering: negligent conduct has caused pure emotional harm). Limit by zone of
danger test
Problems calling for limiting rules
gatekeeper/oodgates
predictability
validity/fraud
Ginsburg dissent: this test is too restrictive, disputes policy reasons necessitating a test so limiting (in FELA
claims, not 'innite Ps'
should Gottshall be able to recover in this standard? (BZ thinks no).
Breach (issue of fact/mixed; burden on P to establish) (sometimes called negligence)
a four features of standard breach instruction
1 1) negligence = failure to use ordinary care
2 2) "ordinary care" = reasonable person standard
3 3) jury should consider whether D was negligent in doing something or in failing to do something
4 4) consider circumstances and whether care was ordinary for the circumstances
b Considerations for breach (from Adams v. Bullock)
1 foreseeability (most important factor)
2 no warning to take special precautions. Nothing salient about factual situation. No notice (hadn't happened before)
3 no customs had been disregarded (see Hooper, even Hand thinks somewhat important even though custom is not
the be-all, end-all)
4 legality (see also in Grand Trunk, where violating speeding law was important)
you can comply with all statutes and still be negligent. NOT DISPOSITIVE
5 no feasible precautions that D could have taken at this spot that could have prevented
c Not living up to the Standard of Care
1 ordinary care: value judgment of what ordinary care requires, and judging whether D lived up to that standard.
mixed question of law and fact
overwhelmingly, we pick standard of ordinary care, dened by reference to reasonably careful or reasonably prudent
person (see p. 140, jury instructions in Meyers, on p. 145, in Grand Trunk)
Martin v. Evans (PA 1998) p. 142: tractor-trailer backs into man, trial court overturned jury verdict of no negligence,
ct. of appeals overturns because evidence supported claim of ordinary care under circumstances.
Evans (D) won at trial (Martin wanted new trial)
jury thought truck driver who hit a guy not negligent
jury came out with defendant by making a credibility determination that P was lying
maybe jury actually thought that it was P's own fault (comparative negligence), and no this read, view of P's
liability colored jury's view of D's liability.
in principle, question of contributory negligence should go all the way through. on this read, you can
understand what trial judge was diong
judge thought verdict "shocks sense of justice,"
appellate court overturns judge's grant of new trial ("wags its nger" at trial judge) because JURY question, not a
question for court, so granted new trial, not summary judgment, because a jury would have to answer other
questions on the special verdict
P had burden of establishing breach
jury made credibility determination owed deference
Campbell v. Kovich (Mich 2006), p. 150. Woman hurt by boy lawn mowing with reasonable care. No issue of
material fact. (summary judgment was appropriate)
in some ways in tension with Martin v. Evans
not strong enough to go to jury because nothing showing that action didn't live up to standard of ordinary care
court of appeals afrms (like in Walter v. WalMart, where pharmacist ruled negligent as a matter of law)
ordinarily, fact Q for jury, but 'ripped away' by court here because facts are not strong enough, and so 'only one
way a reasonable jury could come out on this'
question of whether this case is what it purports to be. purports to be about what a reasonable fact nder could
nd (probably true) but when taken from jury, takes avor of policy question (like Adams v. Bullock)
Adams v. Bullock (NY 1919), p. 151. Cardozo. Trolley with overhead wire hurt boy swinging wire. Jury verdict for
boy afrmed on appeal. No negligence because duty not ignored (injury due to extraordinary circumstances).
Breach is usually a jury decision, but here court says facts not strong enough to go to jury. question of whether
takes from jury for actual reasons or for policy reasons
very important case
Cardozo goes through considerations that P would use to say that there was good care (leaves P empty-handed
here, so no case that withstands jnov motion)
accident unforeseeable (most important factor)
kid electrocuted, freak accident
are restrictions on negligence about ferretting out freak accidents where we don't want to assign liability?
foreseeability a common element in duty analysis
B Negligence
Elements
1 ordinary care: value judgment of what ordinary care requires, and judging whether D lived up to that standard.
mixed question of law and fact
Adams v. Bullock (NY 1919), p. 151. Cardozo. Trolley with overhead wire hurt boy swinging wire. Jury verdict for
boy afrmed on appeal. No negligence because duty not ignored (injury due to extraordinary circumstances).
Cardozo goes through considerations that P would use to say that there was good care (leaves P empty-handed
here, so no case that withstands jnov motion)
accident unforeseeable (most important factor)
are restrictions on negligence about ferretting out freak accidents where we don't want to assign liability?
foreseeability a common element in duty analysis
foreseeability a common element in breach analysis
freak accidents are a recurrent theme in tort law fact patterns
no warning to take special precautions. Nothing salient about factual situation. No notice (hadn't happened
before)
no customs had been disregarded (see Hooper, even Hand thinks somewhat important even though custom
is not the be-all, end-all)
legality (see also in Grant Trunk, where violating speeding law was important)
you can comply with all statutes and still be negligent
but here good fact for D that no law broken
no particular precautions that D could have taken at this spot that could have prevented (BZ: not quite true,
could have put barrier, at that spot or everywhere. conceivable but enormously expensive. so no feasible
precautions).
So considerations in breach: notice, custom, foreseeability, legality, feasibility of precautions (keep these in mind
for evaluating breach issues)
BZ thinks rightly decided
if P's case so weak, why did P win with jury (case shows importance of idea and practice of comparative
negligence as a defense)
jury decided for Adams, against company, which should have to pay
if the idea of giving jury breach questions is that they get to decide who pays in tragic accidents, then why
should appellate judge take that away?
sympathy-driven insurance for injured people
2 sometimes, more than ordinary care (common carriers; inkeepers; bailors)
Jones v. Port Authority of Allegheny County (PA 1990), p. 148. Man fell on moving bus. Common carriers have
highest duty of care, jury instruction must reect that and not ordinary standard. reversal, new trial because trial
judge didn't give instruction reecting higher care for common carriers
3 sometimes, failure to use ordinary care isn't enough to show negligence/breach: Koffman (school football coach)
required gross negligence; good samaritan laws; landowner liability for licensees and trespassers
4 Industry Custom and Professional Negligence (performed as a reasonably careful X would have performed)
General Rule: industry custom is not dispositive of reasonable care (except in medical malpractice cases).
compliance with custom is not dispositive of meeting the standard of care. TJ Hooper.
T.J. Hooper, 1938, p. 171. 2 boats lost in storm. tugs unseaworthy b.c did not have radios, even though industry
standard was not to have radios.
Maritime law governs (federal question). Not in negligence, even though it's an important breach case, not
about breach.
Judge Hand discussing liability for tugs, who are trying to escape liability by saying that they lived up to federal
standard (vessel being seaworthy). If vessels not seaworthy, then share liability.
boats don't have working radios
standard for seaworthiness under maritime law: reasonable care in keeping vehicle in condition it should
have been in.
negligence-like standard
D's argument: nothing is wrong with the vessel, and not negligent not to have a radio because it is not
standard to have radios, and this is sufcient basis for rejecting P's claim (reasonable care bounded by
customary care)
Hand: whole industry can lag behind reasonable care. COMMON CARE DOES NOT EQUAL REASONABLE
CARE
some boats had radios, which doesn't show that it's custom but does show evidence that it's reasonably
careful to have one
custom is not necessary to show neglect
categorically, you don't have to prove custom
fact that a lot of people brought their own radios cuts both ways
Johnson v. Riverdale Anesthesia, GA 2002, p. 173. medical expert witness cannot testify as to how he would
have treated P (who died b/c not preoxygenated by anaesthesiologist) b/c not relevant to/indicative of general
standard of care.
argument that it is relevant: some credibility value on the line, some inconsistency between "what's the norm"
and "what do you do?"
this is the only purpose its allowed (impeachment value) before this case. not relevant substantively,
is he telling the truth? what do you teach your students? is that question probative of whether he's lying?
case is striking for two reasons.
SC of state, doing something at minimum bad form: overrule a precedent precisely on point without giving
any reasons (violation of soft norms of stare decisis, one of most striking examples). raw politics, bad
form.
vagueness in question. asking empirical question about pattern of conduct, or request for articulation of
norm (normative)?
part of the reason we permit impeachment on this question normally is because its not just a at,
descriptive question of the norm, but person is vouching for expert's view of how this is supposed to be
done in the relevant community
B Negligence
Elements
General Rule: industry custom is not dispositive of reasonable care (except in medical malpractice cases).
compliance with custom is not dispositive of meeting the standard of care. TJ Hooper.
Johnson v. Riverdale Anesthesia, GA 2002, p. 173. medical expert witness cannot testify as to how he would
have treated P (who died b/c not preoxygenated by anaesthesiologist) b/c not relevant to/indicative of general
standard of care.
case is striking for two reasons.
vagueness in question. asking empirical question about pattern of conduct, or request for articulation of
norm (normative)?
part of the reason we permit impeachment on this question normally is because its not just a at,
descriptive question of the norm, but person is vouching for expert's view of how this is supposed to be
done in the relevant community
room for normative decision making (what experts think standard of care requirements), so not as anti-
TJ hooper as it seems.
Professional negligence: different concept from regular negligence
not higher or lower level of care, but show that D failed to perform as a reasonably careful X would have
performed.
alters question on a different axis by redening who we compare to (instead of reasonably careful person, to
reasonably careful person in eld)
Medical Malpractice: opposite rule. breach = failure of D to live up to standard of care for relevant professional
community (so compliance with this standard is dispositive of breach). Anti-TJ Hooper Rule
medical malpractice dominated by Q of breach. on professional community:
how big is relevant geographical community
how specialized is the relevant medical community?
surgeon vs. cardiac surgeon vs. pediatric cardiac surgeon (litigants will ght over this)
does D need to be member of the specied community?
ghts about individuation
every jurisdiction says in medical malpractice, P cannot go to jury unless P has expert testimony to support a
claim of breach (evidentiary rule). ALMOST every case needs an expert but not really obvious ones, like leaving
a scalpel inside a patient:
Other areas for fudge room in expert's standard of care testimony
specication as to geographical community (most courts are moving to national standard). but to
specialization or sub-specialization? (room for courts to move into normatively demanding standard or to
broader standard)
"squish room" in different ways of thinking about what standard of care means
Walter v. Wal-mart, where pharmacist gave patient wrong drug
Why should we have a different rule at all for medical malpractice than for other industries
expertise argument
limited because other highly technical industries where industry has huge incentive to take the most
sensible, feasible precautions and juries know virtually nothing. why wouldn't the expertise argument
extend to these other indistries?
notwithstanding expertise gap, reasons to think whole profession has fallen behind
obvious hypothesis: doctors have lobbied well, blocked developments that other industries haven't
good to have medical malpractice shielded from liability for larger public good
lots of states have med mal tort reform to limit liability to limit cost of malpractice insurance for doctors (policy
reason to keep medical care affordable)
symbol of esteem in which medical practice was once held (causal explanation, doesn't defend it)
most plausible defense: even if drs held to standard of care but no higher, still pretty exacting standard. so
high potential for liability even with benet of anti-TJ Hooper rule.
Informed Consent has patient rule (info a reasonable patient would want before deciding, like TJ Hooper Rule b/c
profession can't set the standard) or physician rule (information that a reasonable/competent physician would give,
like anti-TJ Hooper b/c community dictates standard)
districts vary and ip between patient rule and physician rule
objective standard for causation
Informed consent is a hybrid cause of action
in some ways, a standard of care issue, so similar to malpractice
in some ways, the question is one of consent with proper amount of information, so similar to battery
new cause of action so that Ps don't have to worry about labels
Largey, NJ 1988, p. 177. breast biopsy informed consent case; adopts patient rule and rejects physician rule
Issue: standard to instruct jury whether dr. had adequately informed for consent (P wanted patient rule and D
wanted physician rule)
P alleges battery and negligence
Case discards reasonable physician rule and adopts reasonable patient rule. Reasons:
medical custom is a sketchy standard, and industry shouldn't set its own standards anyway
non-medical factors, so can't use purely medical standard
physician's discretion shouldn't limit patient's self-determination
evidentiary concerns (how to get doctors to testify against each other)
NJ used to have 'physician rule' but now has 'patient rule'. the rule dictates how much and what kind of
information
adopts objective standard of causation (would have to show that a reasonable person in P's position, given
the information, would have made a different choice)
Professional Malpractice for lawyers works almost the same way as medical. Almost always needs an expert. less
developed eld.
Myers v. Heritage (Ill. 2004), p. 138: woman dropped in nursing home, dies unrelatedly soon after, her estate sues
home. Instruction should have been for ordinary negligence, not professional negligence.
B Negligence
Elements
Professional Malpractice for lawyers works almost the same way as medical. Almost always needs an expert. less
developed eld.
Myers v. Heritage (Ill. 2004), p. 138: woman dropped in nursing home, dies unrelatedly soon after, her estate sues
home. Instruction should have been for ordinary negligence, not professional negligence.
Procedural Posture: D wins at trial (even though dropped a little old lady) by getting professional negligence jury
instructions and turning case into a battle of the experts.
question of expertise on whether you should drop a person because
CNA's are professionals and should be judged by the standards of their professional community (not just
what a jury thinks they would do in the situation but what experts say a competent practitioner would do)
could also have argued on the community of professionals and constant training, and that a technical
device was being used that jury wouldn't have known about
P prevails, using statute on nursing home abuse to show that legislature intends for people in nursing homes to
be more careful (something the statute would envision as not meeting the standard of ordinary care)
Question is about the content of the duty of care from D to P (presumptively an issue for the jury)
5 Compliance with statutes does is not dispositive of use of reasonable care (Grand Trunk v. Ives)
Grand Trunk (handout). compliance with (speeding)statutes does not equal reasonable care. not dispositive.
different concept. SCOTUS says jury issue of breach for both P and D
Compliance with Federal Statutes does not preempt state claims (Levine v. Wyeth)
6 Sometimes can't pinpoint a precaution that should've been taken but still have a case in negligence
surgeon being as careful as possible but nicking artery
clumsy driving (small mistake)
BZ: lots of cases. sometimes someone's doing something wrong that yo ucould specify, but sometimes just
negligent execution of some kind of task.
not failure to take precautions, just not doing what you're doing carefully enough
d Dening the Reasonable Person : General Standard: Dening the Reasonable Person (Vaughan, Appelhans)
1 compare behavior to reasonably prudent or reasonably careful person in the situation
2 3 potential parties need this (judges, potential defendants, potential plaintiffs)
3 objective vs. subjective distinction has two separate questions: (1) what person did (objective) or how hard he tried/
good faith.intent (subjective); and (2) more important: compare to someone with like attributes (subjective-ish) or
compare to standard average person (objective)
Vaughan v. Menlove, 1837, p. 158. OBJECTIVE STANDARD OF CARE for guy whose hay burned down neighbor's
house, despite having acted to 'the best of his abilities'
Issue: Why do we impose liability on someone trying his best to be careful but fails? Why objective standard for
ordinary care? court's justication: "so vague a line...no rule at all" (p. 159)
Menlove's argument that he should not be subject to objective standard of care
can do whatever he wants with his land
should have not gone to jury with question of ordinary care, but just to the best of his own judgment and ability
(court rejects)
"I'm dumb, so don't judge me against reasonable person"
compare me to people like me OR
just ask if I tried my best
"best of your abilities" wouldn't cut it as a rule, especially since reasonable person standard itself is pretty vague.
the added deniteness needed by:
judges and juries to use as a standard to adjudicate effectively and fairly
actors trying to decide what to do, what is expected of them. world of possible future Ds to guide conduct.
reasonably prudent is more helpful than 'try your best.'
moral point/P-oriented: we are entitled to standard of reasonable care by those around us. Recognizing
reasonable right to security
4 particularize in special situations: Children, Professionals, Disabilities
children
kids held to lower standard (reasonable for a kid of their age) down to certain age, under which no liability (tender
years doctrine) Appelhans.
Appelhans v. McFall, IL 2001, p. 160. kid crashes bike into old guy, breaks hip. no negligence to child as a
matter of law because of tender years doctrine
Two charges
was parents' supervision negligent? trial court grants summary judgment, says no evidence that they
were negligent
was kid negligent? trial court grants summary judgment on basis of 'tender years' doctrine
On appeal, P's lawyer doesn't push on the negligent supervision charge (BZ thinks he should have), but
pushes on tender years doctrine. want to change age for tender years doctrine to apply
Court says kids should have liability under 7 b/c of tv and internet (bizarre argument) but they can't do it
because of precedent
OBJECTIVITY of standard of care (also seen in Vaughan), and its exceptions. (reason this case is in the
book)
compare person (without particularizing) to reasonably prudent or reasonably careful
don't subdivide, pick the middle
all that's challenged in this case is the number, on the expectation that homeowner's insurance would
pay out for kids. BZ sees possibility of collusion
B Negligence
Elements
d Dening the Reasonable Person : General Standard: Dening the Reasonable Person (Vaughan, Appelhans)
4 particularize in special situations: Children, Professionals, Disabilities
children
kids held to lower standard (reasonable for a kid of their age) down to certain age, under which no liability (tender
years doctrine) Appelhans.
Appelhans v. McFall, IL 2001, p. 160. kid crashes bike into old guy, breaks hip. no negligence to child as a
matter of law because of tender years doctrine
OBJECTIVITY of standard of care (also seen in Vaughan), and its exceptions. (reason this case is in the
book)
don't subdivide, pick the middle
all that's challenged in this case is the number, on the expectation that homeowner's insurance would
pay out for kids. BZ sees possibility of collusion
If child is engaged in adult activity, then will be held to standard of reasonable adult (case in notes on motorboat).
BZ thinks that also for driving cars
for parents to be liable, must be directly negligent, not vicariously
ex. negligent supervision
ex. negligent entrustment
standards for professionals are higher: competent, well-trained professional in the area (Johnson)
Disabilities
mental disabilities: same standard (no particularization), so knowingly holding them to standard they can't meet.
nothing comparable to insanity. policy reasons:
allocate losses between two innocent parties to the one who caused or occasioned the loss
incentive to guardian to control their behavior
no inducement to fake
avoid administrative problems of proving
'forcing persons with disabilities to pay for the damage they do if they are to live active lives'
physical disabilities (like blindness): particularize, hold to standard of other blind person
e Reasonableness, Balancing, and Cost-benet Analysis. The Hand Test (Burden<Prob.*Loss) to test efciency of
assigning liability for an action
1 US v. Carroll Towing (1947), p. 189, Learned Hand gives standard of care as 'calculus of negligence' or balancing
test: whether B < PL
facts and procedural posture
barges lined up off piers 51, 52, and public pier
barges had to be moved, and potentially careless conduct by tugmaster/harbormaster and employee of carroll
towing
barges oated toward other barges, and no bargee on ship to notice damage below surface
US sues because owned our on ship belonging to PA RR company (wartime). Owner of barge lost the whole
barge, and contents, and say it's the fault of the guys who were supposed to tighten line (Carroll towing and
grace lines) who sues whom? look it up. resolution of district court goes up on appeal
Issue: What is the standard of care for negligence for bargee?
why didn't lower court judge think that there was any fault on the part of the Conners company? Hand thinks its
obvious that he lied
how do we know that bargee should be on board?
authority in second circuit to say that bargee needn't be there, also cases saying that it is negligent for him not
to be there (authority going both ways)
Hand says that it's right that the bargee needs to be on board
some precedent to say it's negligent (ie the breach, the careless conduct)
duty breached, and duty varies with circumstance, and the way to understand what duty to take precaution is
dened as when the burden is less than the injury times the probability (Hand formula), then duty to do the
thing
B= burden (or cost) of precaution
P= probability of injury without precaution (compared to probability with precaution)
L=Loss
So a smaller form of Cost Benet Analysis: burden of actor of cost and the loss are not borne in the same
place. (question of unied interests, or external costs)
negligence varies with circumstance
Case is used as a prototype for understanding duty not to injure others (lest we face liability), but in this case,
relevance of negligence of Conners company only pertains to whether they can recover fully for their own loss
(P's fault sort of idea. in maritime law at this time, plaintiff's recovery was limited by their own fault, but not all-or-
nothing as in contributory negligence nor as in today's percentage of negligence, but you gure out how many at-
fault parties there were, and then divide)
Conners company argues that the issue of whether bargee should have been on board or not is a red herring,
doesn't affect outcome of case, because even if bargee had been on board, the ship would still have been injured
same amount. damage causally unconnected to whether bargee was on board
might not have prevented the collision damages, but might have prevented some of the sinking damages
(maneuver by lawyers of carroll and grace lines or by hand himself)
2 Posner siezed on the Hand formula, says all of negligence law can be explained by it. D will count as having used
reasonable care if he took socially sensible precautions in efforts to minimize waste. If you engage in socially
unproductive conduct, Cts will encourage taking cost-efcient precautions that add to the aggregate social wealth
if a company is selling cars to people, will put $ into checking the tires commensurate with (put efcient amount of
money into checking the tires)
problem that people are basically selsh, deal with problem in tort law by making defendant who made inefcient
choice pay for the cost of the injury. if they don't take the fcient precaution level, they have to pay the cost of the
injury (make it function like it's all one big smart social planner)
both makes sense in the law and econ sense, and has been the basis of tort law (according to Posner's reading of
Hand here)
B Negligence
Elements
2 Posner siezed on the Hand formula, says all of negligence law can be explained by it. D will count as having used
reasonable care if he took socially sensible precautions in efforts to minimize waste. If you engage in socially
unproductive conduct, Cts will encourage taking cost-efcient precautions that add to the aggregate social wealth
both makes sense in the law and econ sense, and has been the basis of tort law (according to Posner's reading of
Hand here)
3 Rhode Island Hosp. Trust Nat'l Bank v. Zapata Corp, 1st cir. 1988, p. 194: bank is using sufcient system for
detecting bad checks b/c it is cost-efcient, and spending more wouldn't produce signicantly better results
Issue: what is the standard of negligence in detecting forged checks?
Holding: P did not prove lack of ordinary care on the part of the bank, so no negligence
bank's practices were industry standard or better
more careful practices would impose big costs and court doesn't think would produce real saving, so wouldn't be
reasonable
"not every precaution is worth taking"
4 The Hand Test: (strengths, weaknesses, etc.)
frequently criticized for bottom-line/heartlessness approach. If you believe this, you think just calculate risk of suit
'immoral'
legal actors should not take precautions except insofar as would be rational and avoid liability
suggests negligence means take precautions when you would face liability
Hand doesn't talk about cost and probability of litigation, but cost and probability of injury. Encourages actors to
think outside themselves
nothing to suggest that Hand means cost of litigation.
Hand not talking about dollars when he talks about costs. Posner means wealth. Hand means costs more
broadly
Georgia peanut butter with salmonella example: by Hand formula, not about what people should do, just tells us
what kind of liability should be imposed and connection of liability to what law says should be required. Method of
interpreting reasonable care.
is reasonably prudent care: business? ethics? t.j. hooper or anti-
B= costs to company in taking the precaution would be wasted product, etc.
L= potential losses if you don't take the precaution
(medical bills
loss of customers)
pain and suffering counts? should count. (Hand would agree, Posner too (he just wants everything in dollar
and cents scale so you can analyze))
does the reasonable person, in considering the consequences of his or her action, consider how much
pain and to how many people? YES!
adult pain counts
if you don't know how much has gone out and you don't know how many people might be affected, but have
reason to believe that non-trivial amount went out, should you recall?
policy-makers POV:
moralists POV:
Crit: preferences people who can make money by imposing pain and suffering on others. (If I can make $500 by
imposing $200 of pain on you, I will do it).
Posner and hand would have said 'I don't know what peanut butter people would do, it depends on how much the
recall would cost, whether reasonable care would require it.' There is a cost beyond which reasonable care wouldn't
require it
cba is a way that we think about a lot of social policy problems
tautological once you're doing cba
hand and posner are trying to entrench relevance of formula as abstract matter in common law of negligence
assuming that what reasonable care means is what a reasonable person doing cba would do
gives components of decision, not what decision should be
basis of thinking about negligence liability at all
In reality, people know of highly dangerous activities and take not-insignicant risk, and thus are required to do recall
(without asking how much it costs and if it will be worth it, which would be the next 'hand' question)
is this analysis consistent with the way people in our legal system and in our society understand reasonable
care? is there too much of a ramming of reasonable care (which is meant to be an everyday notion) into bottom-
line attitutude toward safety?
BZ: The question of whether CBA is appropriate is an academic question, because the Hand formula is in left eld,
and isn't what negligence law is about (even though single most inuential idea for American law professors).
negligence cases go to jury, where breach is an issue before the jury, and uncontested that jury is never given
the hand formula, even in abstract version, and uncontested that they are given the 'squishy stuff' given in the
rst section on breach: "what a reasonably careful person would do under the circumstances"
a few appellate judges who do what Breyer did in Zapata, which is to use analysis of Hand formula and Posner in
thinking about how to interpret ordinary care
doesn't think it's that relevant even though many scholars out there think this is all the worse for a jury system
(maybe don't give it to them if we think they're too stupid, but ordinary care is a heuristic that channels them to
the same considerations)
some profs think we should get rid of the jury or change the jury instructions to be about Hand formula. or just
have professional judges deciding
decisive that it's not what the law actually is
B Negligence
Elements
4 The Hand Test: (strengths, weaknesses, etc.)
BZ: The question of whether CBA is appropriate is an academic question, because the Hand formula is in left eld,
and isn't what negligence law is about (even though single most inuential idea for American law professors).
some profs think we should get rid of the jury or change the jury instructions to be about Hand formula. or just
have professional judges deciding
decisive that it's not what the law actually is
pro: exible enough to include pain, death, etc.
NOT battery even if you know by probability that someone will get harmed. ne line between advertence and
inadvertence. But could probably be punitive damages in the peanut case be
Methodological Problem with Hand: measuring each of the three variables (for actors and for juries)
problem of incommensurability or incomparability (dollars vs. pain)
intersubjectivity problem. we can't measure the values other people place on this. "problem of interpersonal
utility comparison"
Posner says that at least in theory, market is pricing mechanism that makes everything fungible, including things
above
works interpersonally
keep wealth the medium of value so that market can accommodate, even if it seems desirable to change to pain
or something more tangible
Calabresi response to untradability arguments: society constantly makes these sorts of valuation decisions, and
draws lines
trade-off is a condition of the whole enterprise of policy-making and it's naive to pretend otherwise. But doesn't
mean that at the end of the day that all we'll be doing is putting things into formulae. Courts and laws have
different ways of slicing the problem. juries are making their own decisions
5 Lord Reid's "Disproportionate Cost" test
if risk was exceedingly small that the sort of harm at case would be suffered, then no obligation to take precautions
if risk was real but very small, obligated to take precautions unless cost disproportionate to harm risked
if risk of harm was material/substantial, D had to do everything possible to prevent, even if precautions were
disproportionate in cost
f Judges vs Juries deciding breach
1 When questions of breach are decided by judges and not juries, we should ask whether the case is what it purports to
be (a case where all reasonable fact nders could only nd one thing) or policy cases
Adams v. Bullock is most obvious one
but Campbell v. Kovich also taken from jury
Walter v. Wal-Mart Stores, Inc. (ME 2000)
facts: chemo patient was given wrong drug by pharmacist, suffered injury
issue: Did the trial court err in granting judgment as a matter of law? (no)
2 Reasons for judge to take from jury
courts sometimes inate their power to pull breach q from jury for policy reasons
ask if the reasons sound
Ds can also request that jduges consider P's breach of ordinary care as a matter of law
g Proving Breach: Res Ipsa Loquitur (the thing speaks for itself)
1 3 conditions for res ipsa in black letter law today
the event has to be of a kind that ordinarily does not occur in the absence of negligence
Kambat brings up that this element is the one with expert testimony
instrumentality of harm exclusively in Ds control
not due to any voluntary action on the part of P
2 Res Ipsa main ideas, themes, facts
largest role: defeating motions as a matter of law
tool for ghting a defense motion as a matter of law that case shouldn't go to jury because P doesn't have evidence
of breach. so doesn't make P win, just allows to go to jury, and D gets a chance to present evidence to rebut.
res ipsa frequently used against the P
standard: "enough that the evidence supporting the three conditions afford a rational basis for concluding that "it is
more likely than not" that the injury was caused by defendant's negligence" (p. 208, Kambat)
res ipsa and expert testimony: usually a big issue of contention, and experts used to displace jurors' common
knowledge of whether the type of injury could normally occur without negligence. can use res ipsa even when
expert testimony is needed to establish that events leading to P's injury wouldn't happen without carelessness
by and large, tort law sticks to evidentiary understanding of res ipsa
3 Byrne v. Boadle Engl 1863, p. 205: our falls on guy's head in the street, fact of the accident is prima facie evidence
of negligence, so court invents res ipsa loquitur and burden shifts to D to disprove negligence
you can't have a rule where there's an accident and an automatic presumption of negligence, because P's burden of
proof to PROVE negligence. If injury is enough to win, then it's strict liability. Injury can't be enough in itself.
D has the law in his favor but not the facts (under the law at that time, P has to prove breach, but...)
key to court's solution: nd a way to deal with oodgates problems: nd a way to constrain the domain within which
res ipsa will work, so manageable set of cases that is predictable. 3 conditions for R
you might think we don't care whether D was negligent, and that it's a case about evidence like the court says. BUT,
do we care if there was negligence by Byrne? So is it evidentiary ideas that drive the concern that he be able to
recover, or is it that in certain contexts, something like strict liability seems more appropriate anyawy?
4 Kambat v. St. Francis Hospital, NY 1997, p. 206. surgery pad in P (medical malpractice suit), court should've given
res ipsa instruction
woman has laporotomy pad(18x18) in her bowels
B Negligence
Elements
g Proving Breach: Res Ipsa Loquitur (the thing speaks for itself)
4 Kambat v. St. Francis Hospital, NY 1997, p. 206. surgery pad in P (medical malpractice suit), court should've given
res ipsa instruction
woman has laporotomy pad(18x18) in her bowels
trial court refused to instruct jury on res ipsa, and hospital won on theory that woman swallowed the pad
case won with expert witness for D, who said she easily could have swallowed the pad
jury doesn't have to believe whole defense as a technical matter
(on remand, D still won)
P was allowed to go to jury anyway, did not face summary judgment motion
"where the actual or specic cause of an accident is unknown, under the doctrine of res ipsa loquitur a jury may in
certain circumstances infer negligence merely from the happening of an event and the defendant's relation to it."
standard for P (besides 3 conditions to invoke) is that its more likely than not that injury was caused by D's
negligence (doesn't have to disprove all other possible causes)
h Negligence Per Se (doctrine that breaking law is prima facie negligence). also covers regulations (Bayne)
1 doctrine used by Ps to bolster their claims on breach, like res ipsa (device to shift burden of proof from P to D)
also, a few potential excuses for non-compliance with law even if negligence per se
if P succeeds in invoking the doctrine, judge can instruct jury that they must nd that there was a breach
not so much about a fact pattern as it is about the law. use it to earn an irrebuttable presumption that there was a
breach.
as procedural matter, must more powerful tool than res ipsa.
makes pretty strong case on breach into airtight case on breach
res ipsa takes a weak case on breach to viable on breach
caveat on powerfulness: only gets you over the breach problem (slight exaggeration), doesn't tell you whether
the breach caused the injury
2 threshold question in negligence per se cases: is this the right kind of law, given the fact pattern, to trigger
negligence per se? (right kind of law, right kind of person, right kind of injury)
4 factors (in restatement 286, p. 340):
class of persons
particular interest which is invaded
the kind of harm which has resulted
against particular hazard from which harm results
4 factors frequently boiled down to 2 factors:
is this statute there to protect the class of persons of which the P is a part?
is this class of statutes there to protect that class of persons against the sort of hazard that in fact ripened into
injury in the case before us now?
classic example of statute put in place for safety reasons: young children in car seat. if child not in car seat agitates
and causes accident, then argue:
for negligence per se: by not putting rst child in car seat, breached duty of due care
victim is a child
kind of injury is the kind statute meant to protect against
against using negligence per se:
hazard in this case was child being annoying and distracting the driver, which is not reason for carseat law
3 Dalal v. City of New York, NY 1999, p. 338. D in accident not wearing glasses against law is negligence per se.
statute sets up standard of care, the unexcused violation of which is negligence per se (339)
4 Bayne v. Todd Shipyards corp., Wash. 1977, p. 339. Violation of administrative safety regulation (requiring
guardrails) is negligence per se.
delivery man who was not employee of loading dock area, but injured because platform didn't have guard rail.
I1: court said negligence per se from four factors from restatement
P argues: right kind of statute because it's about safety, meant to protect people who are working at these kinds
of sites
so right category of P (workers), right category of D, right category of risk (falling), right category of injury
wrinkle: OSHA regulation, about protecting employees of the people OSHA is regulating. P was not an employee
of company, so technically maybe outside? (P argues that its to protect all workers at site, and wins)
I2:P can use negligence per se analysis even though regulation, not statute
traditional arg for negligence per se: if legislature has weighed in on standard of care, then true as a matter of
law, bc legislature is representative, the person to regulate, etc.
so under this argument, right kind of statute is one made by legislature
if the body making decision isn't cross-section of community, can you use it the same way? court follows majority
decision that you can, but court overrules precedent to get there.
5 Victor v. Hedge Cal. 1999, p. 342: parking on sidewalk does NOT = negligence per se
court nds that negligence per se does not apply because P is not of class meant to be protected by the law; not the
ind of injury law was intended to protect against)
not ordinary negligence, either, bc not unreasonable or unforeseeable risk of harm
6 Martin v. Herzog, in notes, about driving without lights at night, uses contributory negl per se. Cardozo says failure
to comply with law to use lights is not evidence of negligence--denitely neg.
Causation (issue of fact) (P's burden to prove by preponderance)
a Actual Causation/Cause in Fact/But For Cause
1 issue of fact, under preponderance of evidence standard
B Negligence
Elements
1 issue of fact, under preponderance of evidence standard
Circumstantial evidence is used for the preponderance standard (more than 50% chance). It must facilitate
reasonable inferences of causation, not mere speculation.
Skinner v. Square D; (Mich '94), p. 221 defective switch case - causation element decided on SJ (not by jury)
because circumstantial evidence not strong enough, and court thought decedent was probably careless- alligator
clips case with phantom part of switch
P must present substantial evidence, from which a jury may conclude that more likely than not, but for D !s
conduct, the P"s injury would not have occurred
P must prove causation by showing that there was a greater than 50% chance that P would not have suffered
harm had D not acted negligently. If less than 50%, P loses. If more than 50%, P recovers 100% of damages.
2 3 kinds of answers to why we have cause in fact reqt
care about causation, bc in world of deterrence, we don't just ask blunt question, we need right level of deterrence,
coming in right time and right way. so amount of liability matters, even from pure deterrence and regulatory point of
view
economists say this is why causation matters. causation is built into logic of deterrence (like Sindell)
causation is what we have (for social and other reasons). might not be that logical, but serves a variety of functions
including compensation and deterrence, but it would be crazy to get rid of rule bc it plays signicant oodgates rule,
predictability rule, etc.
gives predictability and texture
practical/administrative/instrumental conception of causation
holding people accountable for what they've done, for injuring other people is what tort law is about. only when
people prove that the person actually injured them can they sue.
causation lies at the core of responsibility that's at the core of tort law
3 Loss of Chance: Some jurisdictions, but not all (about 20)
Falcon v. Memorial Hospital (Mich. '90), p. 231. "loss of chance" doctrine. Patient can recover 37.5% of wrongful
death damages for loss of 37.5% chance to survive. MINORITY
patient giving birth suffered from amniotic uid embolism. IV not established, patient died.
37.5% survival if IV established beforehand (P's expert): so same thing more probably than not would have
happened even if hospital had acted perfectly
Issue: should case be dismissed b/c probability of survival less than 50%?
Holding: P gets 37.5% of damages that she would get for wrongful death suit. Injury not just physical harm,
but loss of chance to avoid physical harm
Michigan undid this case by statute
assuming that it was a breach not to put her on an IV. Court assumes this from the way it states the question
not about feeling bad for doctors, about access to health care: if you drive up costs for doctors, it will deprive
more people of health care. the more you soften the liability system
loss of chance doctrine allows a weakness in causation to get past summary judgment
can't come up to the standard of likelier than not. (policy con)
instead, not recovering for injury of 'dying,' but for for injury of 'losing your lottery ticket.'
Reasons to adopt loss of chance (usually favoring P):
easier for Ps
if heightened chance of survival is very reason that person decided to go to this doctor, and that's what their
negligence takes away, then more plausible that it's a real loss (policy pro)
P had right to rely on doctor for this chance
one of the best arguments, supercially: we want people to be accountable, and accountability can mean two
things
moral conception of accountability (hold someone who has injured you accountable to you)
system depends on private law to send the right incentive to physicians, hospitals, etc. if we want that system
to work, we can't rely on only cases that go over fty percent (so on interpretation of tort that its a system to
send a message about level of precaution, it's good)
Reasons to reject loss of chance doctrine
problems in consistency in evidence
problems in giving to jury
problems with not extending it to other areas
slippery slope: how low an amount can you recover for? (insufcient argument of the problem)
access to health care (falcone): the easier you are with liability standard, the more expensive it is for people to
get medical care
one of the major problems: if you add loss of chance doctrine to the system and leave everything else the same,
then from deterrence perspective, you have too much liability (because person can recover 40% when 40%
chance of injury, and 51% chance of injury, you recover 100%
you could correct for that over-deterrence by applying loss-of-chance doctrine to chances over 50%
problem with permissiveness of what gets past summary judgment stage
other ways for legal system to nesse this kind of problem
BZ problem with above analysis: not clear whether damages that would be assigned to death have anything to do
with what remedy should be. remedy should be for chance, not for death
MA: 452 Mass 1 (2008): MA adopts loss of chance (Matsuyama v. Birnbaum)
B Negligence
Elements
3 Loss of Chance: Some jurisdictions, but not all (about 20)
BZ problem with above analysis: not clear whether damages that would be assigned to death have anything to do
with what remedy should be. remedy should be for chance, not for death
MA: 452 Mass 1 (2008): MA adopts loss of chance (Matsuyama v. Birnbaum)
4 Substantial Factor test: If several causes could have caused the harm, then any cause that was a substantial factor
is held to be liable (mostly CA)
can't be a tiny cause, must be substantial. used in many jury instructions (without explanation of what substantial
means).
Need to be but-for cause before substantial analysis (Aldridge)
2d Restatement deals with two problems:
philosophical cause wasn't a real factor in bringing the thing about. wanted to unk these trivial contributions on
proximate cause
wanted not to be stuck with but-for causation for every single cause-in-fact case
Restatement, p. 254-44;
341
342: something isn't a substantial factor unless it's a but-for cause, unless meets section 2. section 2
protects multiple sufcient causes (Anderson).
intention to rule out trivial causes, but loss of chance cases, where Ps don't live up to substantial factor test/
but-for cause, and are systematically disallowed
3rd restatement: always but-for cause unless Anderson two res case or something extremely close to the asbestos
scenario (signature injury, overload of exposure, each D trying to get out). you can do loss of chance if you want. [to
try to pull us out of the quagmire of substantial factor, which was meant to help but made these areas muddy]
Balbos (cited in Aldridge): asbestos litigation in MD, Ps sued all asbestos makers. group was sufcient, but each D
alone not sufcient (could argue that the injury would exist without one D's conduct). Not multiple sufcient causes,
because some Ds would not have been independently sufcient, but sufcient as a group (multiple necessary).
Modied substantial factor test (as a policy matter)
Aldridge v. Goodyear Tire and Rubber (1999), p. 242. Without but-for causation, no substantial factor analysis,
and therefore no jury in suit against Goodyear for chemical exposure in tire plant. P fails to demonstrate sufcient
evidence of cause in fact to go to jury.
5 Multiple Sufcient Causes - where there are 2 sufcient causes, neither is the but-for cause but each can be
treated as a cause (Anderson v. Minneapolis St. P & SSM Ry. Co.)
6 Joint and Several Liability: If two or more persons concur in contributing to and causing an accident, and but for
such concurrence the accident would not have happened, the injured person may sue the actors jointly or severally
and recover against one or all
Ps can recover all damages (or any chosen amount) from either, up to 100% (usually depends on who is solvent) as
long as just one injury.
Simultaneous conduct not necessary (Ravo v. Rogatnic)
Right of Contribution: one joint tortfeasor has against the other to recover any more than assigned percentage of
liability that P recovers from that tortfeasor (but high transaction costs, and other tortfeasor might not be solvent)
Legal System uses to assign risk that one tortfeasor won't be able to pay to other tortfeasor rather than faultless P
joint and several liability was rule of negligence generally in US until 15 years ago, but many legislatures have
eliminated or diminished (eliminated from certain areas like med mal or products liability)
McDonald v. Robinson, p. 239: woman injured by two crashed cars sues both drivers as joint tortfeasors, wins, can
try to recover all of her damages from either (collided cars carry plaintiff many feet and severely and permanently
injure her; Ds say can't be jointly liable b.c not acting together)
Ravo v. Rogatnick, NY 87, p. 513. obs. and pediatrician jointly liable for retardation of child. simultaneous conduct
not necessary to a nding of joint and several liability, 80/20 split.
7 Alternative Causation: each D must DISPROVE that his carelessness caused injury. often comes with joint and
several liability
key in these and res ipsa is nding some sort of limiting principle, so only use this way of nessing the problem in a
narrow range of cases, and only doing it by changing burden of proof, not by changing underlying reqts for tort
Summers v. Tice Cal 1948, p. 259. 2 jointly liable negligent quail hunters, and P can't locate the fault but clearly the
fault of at least one of them. each D must prove the other was sole cause to escape liability. Policy-driven solution
to evidentiary/unfairness problem
narrow view: tie goes to P in tiny universe of cases where two Ds at exactly 50/50 split of negligence. no rights-
based reason. (if 3 Ds, no liability, b/c for each, much likelier that it was the other two)
8 Aiding and Abetting and Concert of Action
drag racing cases: even without conspiracy, actions that self-consciously coordinated, actionlike a unit, and seems
fair to let P recover from a member of this unit, as it would if there were a conspiracy
yes, you can do it without agreement with self-conscious coordination of parties
courts almost never even send it to trial on this theory
9 Market Share liability: P can recover from D's based on their share of the market since it would be unfair to bar
plaintiff from recovery where it is impossible for her to prove which manufacturer caused her harm and any of them
could have caused it Still requires cause in fact, but allows shift in burden of proof for situations of impossibility of info.
Sindell v. Abbott Labs, Cal. 1980, p. 929. DES drug to moms of Ps, Ds liable in proportion to their market share at
time of injury. shifts burden to Ds to prove that they were not part of the market. important that there was a
generation-long latency period and important that the drugs were generics.
b Proximate cause: arises after actual cause, and measured by: Directness, Foreseeability, and Scope of Risk. Issue of
fact. Use all 3 tests.
B Negligence
Elements
9 Market Share liability: P can recover from D's based on their share of the market since it would be unfair to bar
plaintiff from recovery where it is impossible for her to prove which manufacturer caused her harm and any of them
could have caused it Still requires cause in fact, but allows shift in burden of proof for situations of impossibility of info.
Sindell v. Abbott Labs, Cal. 1980, p. 929. DES drug to moms of Ps, Ds liable in proportion to their market share at
time of injury. shifts burden to Ds to prove that they were not part of the market. important that there was a
generation-long latency period and important that the drugs were generics.
1 Directness: clear line between act and result. (Polemis)
Ryan v. New York Central case from NY, p. 273. Railroad re jumping to second house 'too remote' for proximate
cause. "Natural and probable consequence"
uses 'natural and probable' consequence as criteria for probable cause: doesn't on its face make any reference
to human mind
here, the spreading beyond one house was not natural and probable, and so would cause oodgates problem
uses natural and probable; makes proximate cause harder
train negligently caused spark that hit structure on property that caused re that spread to next property, who
sued train co
Polemis, p. 274. Shipworkers negligence, which unforeseeably causes destruction of ship by re, is nonetheless
guilty. Foreseeability doesn't matter, only directness "Directness test."
Palsgraf v. Long Island Railroad Co. (NY 1928), p. 299. Cardozo: No negligence to P in railroad injury (package
exploded and scales at end of platform fell on P) because negligence is relational and the negligence was not
directed to her. Andrews dissent: enough proximate cause to go to jury under directness (Polemis)
at trial, jury verdict for P for $6,000 (appellate division afrmed)
P's argument on 4 elements
duty: railroad company has duty to everyone there, ticketed customers
breach: it's a fact q, for jury, and the jury thought there was a breach, and appellate div. thought there was
good enough evidence offered to jury to uphold nding of breach
injury: credited
causation: there is denitely cause in fact. we can wonder if there is prox cause, but Cardozo assures us this
is not his problem.
Holding (Cardozo): not negligent relative to P, so no recovery (overturned lower two courts). On basis of duty,
(no legally protected right invaded).
just because negligent to someone else doesn't mean she can recover (idea of correlative negligence)
"the risk reasonably to be perceived denes the duty to be obeyed, and risk imports relation," dened by
natural or probable consequence
C takes a lot of shit for taking side of train company and, people say, doesn't even make a good argument
*Dissent (Andrews): No such thing as relational duty; it's a proximate cause issue. She is within proximate cause
by his judgment, or at least close enough that he thinks it ought to go to the jury.
at a certain point, a judgment needs to be made about where liability is to be cut off. concedes it's a judgment
call that has to be made in a negligence case
relative vs. direct cause (no matter if foreseeable, etc.)
here, not so unforeseeable, and foreseeability isn't the whole ball game. there are ots of other factors (see
below)
looking at strength of connection between the cause and the injury
negligence dened: act or omission which unreasonably does or may affect rights of others, or which
unreasonably fails to protect oneself from the dangers resulting from such acts
due care is owed generally
Polemis is and should be the law (directness as limit). Close enough to go to a jury.
ways in which this situation is indirect: dropped, blows up, gets tracks, hits scales, hits her. the injury is also
eventual (starts stammering over time).
on the other had, negligently hit someone, dropping, explosion, injury. this is good enough for Polemis,
which is the law at this time.
if harm results from carelessness, anyone harmed has cause of action
proximate cause=justice/policy based end point. expediency with considerations ("hints"):
natural and continuous sequence between cause and effect
was one a substsantial factor in producing the other
was there a direct connection between them, without too many intervening causes
is the effect of cause on result not too attenuated?
is the cause likely, in the usual judgment of mankind, to produce the result?
or by the exercise of prudent foresight could the result have been foreseen?
is the result too remote from the cause (time and space)?
evaluating the case's arguments (PD: you can skip this)
relational aspect of duty; relational aspect of breach
has to be a certain lineup between breach and duty. not enough that a duty exist and a duty exists.
why do we need that/how does C justify its necessity?
boundary built into tort law (that Andrews says is falsied by transferred intent)
affront to personality; torts are wrongs to person/personality to Ps
must be a wrong to person who is standing
purports to be putting forward argument. premises: (1) negligent conduct in this case was not a wrong to
the P; if it was a wrong at all, it was a wrong to 3rd P. P can't recover just because there was some
wrong. (2) Person can't recover in a tort claim unless the wrong on which they're suing is a wrong to
himself herself.
B Negligence
Elements
1 Directness: clear line between act and result. (Polemis)
Palsgraf v. Long Island Railroad Co. (NY 1928), p. 299. Cardozo: No negligence to P in railroad injury (package
exploded and scales at end of platform fell on P) because negligence is relational and the negligence was not
directed to her. Andrews dissent: enough proximate cause to go to jury under directness (Polemis)
evaluating the case's arguments (PD: you can skip this)
relational aspect of duty; relational aspect of breach
why do we need that/how does C justify its necessity?
purports to be putting forward argument. premises: (1) negligent conduct in this case was not a wrong to
the P; if it was a wrong at all, it was a wrong to 3rd P. P can't recover just because there was some
wrong. (2) Person can't recover in a tort claim unless the wrong on which they're suing is a wrong to
himself herself.
is the case about duty (Cardozo) or proximate cause (Andrews)?
most casebooks treat as prox cause case, and Andrews treated it as that
Cardozo did NOT think it was a prox cause case (p. 303: "the law of causation, remote or proximate, is
foreign to the case before it."
if there were a tort, he would be ok with giving recovery. wouldn't be worried about how big/direct. cites
Polemiss
C's taking it from jury is said to stem from his desire not to let P win this case. BZ disagrees.
transferred intent: good for P. Andrews said it destroys Cardozo's argument.
transferred intent is for a+b. it's an intentional tort.
Andrews: relationality is not something we exist upon in tort law
thinks its crazy to require relationship to duty that was breached
thinks best arguments for Andrews comes from Cardozo in MacPherson: duty in negligence law is universal.
duty to be careful not to act in ways that unduly risk injury to others is a duty owed to everyone
wrong analysis of what duty to act reasonably requires
P can recover even if she was not the one to whom the wrong was done (ie recovery of husbands in loss of
consortium) (right of subrogation, insurers)
loss of consortium and wrongful death are not common law of torts, they are statutory
right of subrogation is not within tort law per se, you need tort claim and the insurance contract giving you
the right (under equity right).
BZ: two things you could mean by duty being universal.
Winterbottom: you need a contract for a range of tort/negl claims
1. MacPherson: you don't need a contract. duties to all kinds of people regardless of whether there's a
contract. anyone who can prove you breached duty owed to them can recover. (Cardozo). willing to
expand duty, but whatever the duty is, has to be a breach of duty owed to that person.
we have to think about whether it's plausible to think about in this way AND whether it's reasonable to
think about it this way
2. a lot of ppl (incl Ca. S. Ct. in Rowland v. Christian): the whole idea of duty is problematic. if you have
careless action, causal relation, and injury, you're good to go. just general duty to use reasonable care.
(Andrews)
two different pictures of duty. also two different pictures of whether you can gure out if the wrong has been
donebefore you gure out the relational duty/who the P is. most broad ranging/signicant distinction: the
administrative one
Andrews takes the simpler side: reasonable person standard, and liable for all things that happened
Cardozo: can't gure out from looking at conduct standing alone, always have to make sure we can see
what has happened to P as breach of duty that D owed to P. once that, don't care how much damage there
is, can recover for all of it.
even if you went with cardozo on prox cause, even if you think its cogent to talk about negl relative to P. even
if you thought black letter law of negl required breach of duty owed to p, would still be a normative q at the end
of the day
C, 303, the reasons you get to sue at all is because a legal wrong to you was done.
something fundamental about tort law that is private law, as distinct from crime
this is what blackstone and locke thought about why the state had private law
BZ goes with restatement second on negligent: four elements, have to hang together in particular right way.
the standard.
2 **Foreseeability: American courts overwhelmingly use foreseeability. If some injury is foreseeable, P can recover for
all resulting injuries. Mostly jury. Wagon Mound.
Posner: social waste that goes along with incentivizing people to gather too much info about possible harms that go
along with their behavior.
Wagon Mound 1, p. 275. Foreseeability is key test for proximate cause (because of intuitive relationship to
fairness). Shipworkers who did not foresee any risk from torchwork on dock after oil spill not liable for re.
Union Pump Co. v. Allbritton Tex '95 (269). No proximate cause as a matter of law for P who slipped after
chemical re, too remote/unforeseeable as a matter of law
Concurring judge (Cornyn): considerations of proximate cause=foreseeability plus policy considerations. Here,
not foreseeable.
accuses majority of twisting language of proximate cause by using language of condition. being a necessary
condition doesn't even make something a cause, much less a proximate cause.
most jurisdictions use but-for causation as sufcient for cause in fact, and then the mess comes under
proximate cause
says majority messes up this nice analytic distinction
fair accusation, but majority had basis for doing that
even though but-for causation and cause in fact, we still need proximate cause. here, we do proximate cause
by foreseeability, but we all know that foreseeability includes equitable gatekeeping, and here there are
enough policy factors to say no foreseeability as a matter of law, so no proximate cause as a matter of law.
Dissenting judge: in response to 'she should have walked around the pipes,' that is an argument about
comparative responsibility, which should go to jury
B Negligence
Elements
2 **Foreseeability: American courts overwhelmingly use foreseeability. If some injury is foreseeable, P can recover for
all resulting injuries. Mostly jury. Wagon Mound.
Union Pump Co. v. Allbritton Tex '95 (269). No proximate cause as a matter of law for P who slipped after
chemical re, too remote/unforeseeable as a matter of law
Concurring judge (Cornyn): considerations of proximate cause=foreseeability plus policy considerations. Here,
not foreseeable.
even though but-for causation and cause in fact, we still need proximate cause. here, we do proximate cause
by foreseeability, but we all know that foreseeability includes equitable gatekeeping, and here there are
enough policy factors to say no foreseeability as a matter of law, so no proximate cause as a matter of law.
Dissenting judge: in response to 'she should have walked around the pipes,' that is an argument about
comparative responsibility, which should go to jury
emergency is over, but if there is principle of sending questions of proximate cause and foreseeability to jury,
then we should send to jury
Superseding Cause: special case of proximate cause where some other cause was so strong that destroys Ps
argument against D. Test is generally foreseeability. overtly normative, equitable idea. in looking at total situation,
another act with higher level of wrongfulness, seems wrong to hold D liable. by and large the law of superseding
cause has really eased up in favor of Ps
all superseding cause arguments have same structure
conduct by an actor other than D that is in some ways negligent, tortious, wrongful, criminal, or worse.
intervening (between original negligent act of D and injuring of P), erase causal signicance of acts of D
Test: character of intervention plus foreseeability of origin
most courts let Ps recover for 'extra' costs of ordinary medical malpractice. ordinary med mal is a foreseeable
intervening cause, so not a superseding cause
Britten v. Wooten: house was burned down bc store had been keeping stacks of boxes in an irresponsible way.
Court found the fact that an arsonist started the re not unforeseeable, so no superseding cause.
Pollard v. Oklahoma City Ry. Co. p. 288. little boy injured by explosive collected and stored by friend (with
parents' knowledge) cannot recover from company because other little boy was intervening/superseding cause,
so no prox cause
Clark v. E.I. Du Pont de Nemours Powder Co. 1915, p. 292. Company left explosive nitroglicerine, boy found it,
got injured, sues company and wins, because foreseeable for a person of ordinary caution or prudence so an
issue of fact for the jury
Distinguish Pollard and Clark:
posture of two cases are different
already been a jury verdict in Clark, and the jury looked at superseding cause arg. and rejected it
Pollard is summary judgment motion
3 Risk Rule (adopted by restatement 3d for test for proximate cause): needs to be nexus/alignment between risk that
made conduct negligent and risk that's realized in the injury.
Jolley v. Sutton London Borough Council, p. 277. Boat in London projects' yard falls and cripples kid. Class of
harm (injured child), although not specic harm (boat falls on child) was foreseeable, so county (owner of housing)
liable
central question becomes the description/breadth of the risk. how narrow or broad is the type of harm that is
foreseeable, and how broadly should it be dened?
Calabresi: use b/c of law and econ: get right level of deterrence by matching the actual harm with the harm we think
ppl should be responsible for
Restatement 3d wants proximate cause to play a signicant restraining rule because all courts feel like there is
signicant oodgates problem in negligence
have proximate cause play bigger role in oodgates because alternative is for duty to play a bigger role. but if it's
under cause, it goes to jury, which is better becaues it stops courts from making broad statements of prox cause
and ripping broad cases away from juries
people (including BZ) think this is better. can argue that it's an interpretation of foreseeability
Injury (issue of fact)
a Physical Harm to:
1 body
2 land/property
b Loss of wealth
c Others including emotional distress
Statutory Supplements
i Wrongful Death Acts (two types, for different types of damages, different social functions)
a wrongful death actions: spouses and other limited family members can sue in their own name for $$ for wrongful killing
of their family member
1 derivative of victim's underlying claim
2 spouse will be made whole by the way D cut off income stream to spouse. 'wrongful death' statute, under surviving
spouse's name
3 statutorily designated set of beneciaries
4 Damages Recoverable:
used to be limited to pecuniary losses, not pain and suffering
generally permit money for services your spouse was providing
loss of consortium (here, category of damages)
question of how to guide the jury, whether it has to be actual services or just company, etc.
to compensate for reduced QoL of survivor
NOT emotional distress/grief
big split on whether you can recover for grief
b loss of consortium (means 2 things)
1 in the context of wrongful death, its the name of a category of damages that Ps are typically allowed to recover for in
a wrongful death action, big question is what will guide the jury. does it have to be about actual services? can it be
company? how limited? compensates for reduced quality of life for survivor, NOT emotional distress/grief over death
of loved one
B Negligence
Statutory Supplements
i Wrongful Death Acts (two types, for different types of damages, different social functions)
b loss of consortium (means 2 things)
1 in the context of wrongful death, its the name of a category of damages that Ps are typically allowed to recover for in
a wrongful death action, big question is what will guide the jury. does it have to be about actual services? can it be
company? how limited? compensates for reduced quality of life for survivor, NOT emotional distress/grief over death
of loved one
2 in cases where injured person has not died but is seriously injured, P's lawyer will commonly add a cause of action
by spouse of injured person for these damages for loss of company or loss of services, also caused loss of
consortium
derivative of victim's underlying claim, and so limited
used to be for men to recover loss of sexual services that spouse was providing, now provided to both (for loss of
company, which is broadening of loss of services)
c survival actions: allow tort claim to proceed after death of a party (P or D), to recover what deceased P would have
recovered had he not died (including the pain and suffering experienced due to D's tortious conduct before dying.
d Nelson v. Dolan (1989), p. 359: Appeal from winning mom contesting exclusion of mental anguish. She can't recover
for her own mental anguish because it is not covered by Nebraska's wrongful death statute. She can recover for
decedent (son)'s pain and suffering in a survival action
1 Facts: aggrieved mother recovers $37,000 from defendant despite terrible conduct and injury. man hit by motorcycle
after chase, died soon after being hit. very low damages award.
2 P's lawyer argues two things to the court to increase amt of damages:
other places let mom recover for emotional harm. why not let her recover it here?
if Nelson had lived, he would have been able to get damages for suffering he experienced during period when he
was being pulled by d's car.
3 H1:only pecuniary damages for next of kin (no pain and suffering for Mom) b/c Nebraska's statute is only for
pecuniary loss (court does not go with P on this one). NOT about the harm that P incurred b/c of death
4 H2: estate of decedent can recover damages for decedent's pain and suffering/fear of death (the court goes with P
on this one). cause of action survived P. jury q of what he actually suffered
5 BZ: irony. both are statutory, and ct seems to believe is what legislature wanted is concreteness and not too much
spread. but isn't the one that the court allows (for terror experienced by Nelson before he dies) much mushier/
broader/speculative than the one it denies (specic psychiatric costs incurred by mom due to son's death).
6 different jurisdictions will go different directions on each of these issues
ii Vicarious Liability (respondeat superior). Employer responsible for risks endemic to enterprise of employer. CA standard:
whether the risk was one that may be fairly regarded as typical of or broadly incidental' to the enterprise undertaken by the
employer. domain of vicarious liability by reference to whether D was acting within scope of his employment?
a policy purpose: big players with deep pockets both to cover costs and to think through the larger settings, to make
changes that will lead to better safety in society.
b Limitations
1 no double-recovery
2 no vicarious liability for crimes or intentional torts (with some exceptions, like bouncer who beats person for no
reason)
3 NOT for independent contractors
c usually, employee remains liable, questions is only whether you're going to add the employer as potentially liable person.
adding employer could make life worse for employee, b/c if you couldn't sue them, P might often not sue at all
d direct vs. vicarious liability (p. 507)
e detours and frolics: a little out of your way is a detour, a lot is a frolic (to determine scope of employment)
f vicarious liability is seen by some as an example of where tort law has strict liability
1 BZ says: if you believe in liability for corporations, then it needs to be through its actions, and it acts through people,
so not really strict liability in his view
g Calabresi: determine vicarious liability by assigning liability to cheapest cost avoider (promote efcient deterrence)
1 theoretical justication for respondeat superior under the idea that torts is about holding people responsible for their
wrongs?
Calabresi thinks its a waste of time to think about torts as wrongs. thinks its a mistake. wants to think about what
pattern of liability imposition is going to lead to the best result. mostly its about safety. so how is imposing liability on
US going to help with safety? wants cheapest cost avoider.
h Taber v. Maine, 2d. Cir. 1995, p. 502. drunk navy driver, sues D and navy. Gvt responsible under respondeat superior
b/c drinking was incident, damage was reasonably foreseeable
1 US thought it had good argument that because he wasn't doing something part of his job, they were not responsible
under respondeat superior. used older idea of respondeat superior that required closer relation, saying that person
has to be doing something for the benet of the employer
2 argument that gvt benets: part of what makes it ok to work for the military. something the gvt knows about and
benets from (calabresi believes, and not the only one)
Defenses
i P's Fault/Comparative Negl (partial recovery)/Contributory Negligence
a contributory negligence (old common law doctrine). if P was negligent at all, bars recovery, with some extra doctrines
1 "last clear chance" rule says: if P's Negligence was a cause of injury, P recovers nothing unless timing of fact pattern
was such that D had opportunity, by using due care, to avoid injuring the P notwithstanding P's own fault. P invoking
has burden of proof
B Negligence
Defenses
i P's Fault/Comparative Negl (partial recovery)/Contributory Negligence
a contributory negligence (old common law doctrine). if P was negligent at all, bars recovery, with some extra doctrines
1 "last clear chance" rule says: if P's Negligence was a cause of injury, P recovers nothing unless timing of fact pattern
was such that D had opportunity, by using due care, to avoid injuring the P notwithstanding P's own fault. P invoking
has burden of proof
2 in old workplace injury cases from industrial revolution, Ds claimed that Ps knew how dangerous workplace was, and
weren't careful enough, so if either of those two went through, P recovered nothing
whole new system brought about: worker's comp. legislation through out common law tort actions that people at
work could use to sue employers
under workers comp, strict liability and we know that it's about compensation, so no question of what to do
employers liked it, too
no longer had to pay p+s, punitive
no longer had to spend a lot of time litigating because no fault requirement
judge damages based on table, so no jury trials
3 multiple causes/superseding cause: as long as P played some role, he could not recover
b now, statutory: comparative fault (allocate degree of carelessness), comparative responsibility (allocate liability $$). P's
fault must play causal role in P's injury to diminish recovery. 46 states have some form of comparative negligence
(deeply rooted idea that if you're somehow at fault, inhibits your ability to recover)
1 pure: recover any percent that P is found not responsible for (if P is 90% responsible, he recovers 10%). no matter
how egregious P's conduct, if the injury is bad enough, a lawyer for P might be encouraged to bring a lawsuit. NY.
2 modied: nd the amount P negligent and deduct that percent of damage, but if P is more than 50% negligent, he
cannot recover anything. P would not bring lawsuit if he himself had acted really badly. if disproportionality is marked
enough, doesn't make sense for our legal system to try to encourage P to recover
3 to the degree that you think of the tort system as providing compensation as opposed to the blame game, you may
think that P's negligence doesn't matter that much
4 NY Post case: jury believed that P was negligent, but did not believe that he was negligent to a very high percentage
even if this is not a just outcome, it doesn't follow that there is something wrong with our legal system
on the face of it, what happened is that we decide to give this kind of case to the jury, and so the fact that both
actors acted carelessly is a question for the jury on how to split the blame and what the damages are
so if people don't think it's a good outcome, probably we're expressing our view of what we would have done on the
jury.
alternative: the old doctrine of contributory negligence (where if P was negligent at all, bar to any recovery)
under old system of contributory negligence, still not obvious that there would have been no recovery in this case.
(last clear chance)
5 US v. Reliable Transfer Co. 1975, p. 393. Admiralty case that overrules divided damages in favor of comparative
responsibility. allocate proportionate to degree of fault. only allocate equally when parties are equally at fault or it is
impossible to tell
6 Hunt v. Ohio Dept. of Rehab and Correction, 1997, p. 395. Prisoner severed nger in snowblower, is resp. for only
40% of accident.
D (dept of correction) owed duty to warn and instruct, so breached that duty in failing to do so.
P's own negligence (of common sense not to stick ngers in a motor machine) was 40% cause
amount of damages goes to jury
ii Assumption of Risk (p. 404)
a Express Assumption of Risk
1 Tunkle factors to evaluate whether a contract that expressly assumes risk is void. Not strongest for rec. activities,
strongest for surgery, etc.
Duty to the public if the public has no choice but to consent, agreement becomes adhesion contract; the more
something is needed, the more likely the exculpatory clause is to be void
Nature of the service
Contract entered into fairly (equal bargaining power)
Unambiguous intentions of the party
Publicly regulated industry
2 in public recreational facilities, usually exculpatory contracts are void/not enforceable
3 Jones v. Dressel, Colo '81, p. 404. Exculpatory contract for skydiving/ parachuting is not contract of adhesion
(could've paid $50 to escape waiver), is not contrary to Public Policy (under Tunkel factors). Partial summary
judgment for D after P hurt in plane crash.
4 Dalury v. S-K-I Ltd Dev. Corp. p. 409. Exculpatory ski agreements at Killington void as contrary to public policy under
rst of Tunkel factors (b/c skiing is such a big deal in Vermont). P injured, had season pass with waiver
b Implied Assumption of Risk (no recovery)
1 NOT that you are doing something careless. nesses the question of whether the activity that P is undertaking to
engage in is something that is negligent to engage in. not necessarily not negligent, just puts the q to the side
2 largely in disfavor. when used, usually swept into comparative negligence.
3 continues to be vital, independent afrmative defense that fully destroys liability in recreational activities (most explicit
in NY)
4 Smollett v. Skayting Dev. Corp., p. 414. No recovery on broken wrist from roller skating. Barred by implied
assumption of risk (assumes P knew risk).
woman and husband went skating, observed and asked about lack of handrails, etc. fell and broke her risk. rink
asserted she assumed the risk (P maintains she knew the individual risk but not in combination). At trial, jury verdict
and 50% comparative fault. rink motioned for jnov, denied, appealed
B Negligence
Defenses
ii Assumption of Risk (p. 404)
b Implied Assumption of Risk (no recovery)
4 Smollett v. Skayting Dev. Corp., p. 414. No recovery on broken wrist from roller skating. Barred by implied
assumption of risk (assumes P knew risk).
woman and husband went skating, observed and asked about lack of handrails, etc. fell and broke her risk. rink
asserted she assumed the risk (P maintains she knew the individual risk but not in combination). At trial, jury verdict
and 50% comparative fault. rink motioned for jnov, denied, appealed
Holding: jnov for rink because Smollett assumed risk. she knew risk, voluntarily entered, therefore assumed risk
question of interplay between contributory risk and implied assumption of risk
P tries to argue that it's a comparative negl case, not implied assumption of risk, but
court here says that assumption of risk can still be applied to non negligent conduct which constitutes waiver or
consent but which involved no negligence, and in such a case is an absolute bar to recovery
circumstance in which you're being exposed to something dangerous. clear by nature of circumstances that you're
volunteering yourself for an activity that exposes you to this risk
Dissent: this is a proof question. there is a real question of fact on whether she knew the risks in combination, not
obvious that all reasonable people would decide one way, and since jury decided for P, we should not disturb
5 Murphy vs. Steeplechase p. 423. Man injured on jerky carnival ride assumed risk, so no recovery. Cardozo threw
out the lawsuit on implied assumption of risk
6 Older nomenclature
Primary: special rule of no duty for certain kinds of activity (usually for recreational sports). q of law
Secondary assumption of risk: afrmative defense.
reasonable (smollett):
unreasonable: folded into comparative fault
iii Implied assumption of risk vs. contributory negligence
a there are cases where its hard to tell whether its implied assumption of risk or contrib negl or both. good D will try to
plead both, take both to jury
b in world of contributory negligence, doesn't really matter which it is. If D can prove either one, no recovery.
c in comparative negligence, it does matter. if implied assumption of risk, then no recovery. if you are repackaging P's
fault defense as implied assumption of risk, then court shouldn't buy it.
d some jurisdictions decided to treat implied assumption of risk the same way that P's fault is treated, no longer binary, so
Ds can't play this sort of trick
e more common, more difcult, but BZ thinks more appropriate, for courts to sort it out. Smollett is doing that.
f with both implied assumpt of risk and p's negl, not enough to prove P acted negligently or voluntarily chose the risk, but
rather the right kind of connection between acts that actually occurred and the injury. need to prove that P's action/
negligence was cause in fact and proximate cause of Ps injury
g **key q is if courts disposition to cut off P's claim relates to jury's nding that P actually fully understood the risk and
voluntarily undertook the risk and its decision that that was the kind of risk that people could fully understand and could
voluntarily undertake and that ct. wants to cut off.
iv Immunities
a Sovereign Immunity: series of procedural and statutory barriers
1 discretionary function exception (Riley): interpreted broadly generally, whether conduct in question called for
employees to exercise discretion while pursuing the government's policy objectives (Gaubert). policy:
prevent courts from doing too much second guessing (worry about intrusion in tort law of courts in making policy
decision)
interest in not having law second guess people, wants law not to put people in a box. don't want liability to go after
every decisionmaker. want cushion around some decisions
2 2 part test on 438
is this a judgment/choice
is this the kind of action it was designed to shield
3 Riley v. US, p. 437. Car accident from placement of post boxes. Recovery barred by sovereign immunity of
postmaster. where to put post box was in his discretionary function, but discretionary function exception "protects
only those judgments grounded in social, economic, and political policy"
b Statutory Immunity (good samaritan statutes, Van Horn)
1 Van Horn case (supp). Woman who pulls her friend out of burning car but accidentally causes paralysis is liable
(good samaritan statute doesn't cover non-medical actions)
A this is the sort of the person that the statute was mean to immunize
B if only medical actions and not non-medical actions seems like it would be problematic in lots of situations
C insertion of words and concepts when they're not there for reasons BZ doesn't think are clear
1 unwillingness to read broadly would make more sense in extending immunity, not limiting it
2 BZ thinks puzzling that they reach out and create more space for P
D majority more sympathetic to point of view that everyone has a moral duty to help out in a non-negligent manner,
so read statute narrowly. she won't necessarily lose bc we don't grant summ judg
E other side (BZ likes): lots of reasons to have good samaritan statutes, including the one the court fails to
recognize: that people are drawn to try to help in emergencies, and we want the law to encourage these
motivations, and society is litigious. so statutes about trying to restore ppl's sense to try to help
1 in this read, a narrow read of the statute cuts against what the statute would be trying to do
2 since text doesn't contain description of need to contain medical care, so means we want to support instinct
c Family immunity. exists in some form in all jurisdictions (but gone as a formal immunity). generally lawsuits brought on
these issues get thrown out on no duty issues.
B Negligence
Defenses
iv Immunities
b Statutory Immunity (good samaritan statutes, Van Horn)
1 Van Horn case (supp). Woman who pulls her friend out of burning car but accidentally causes paralysis is liable
(good samaritan statute doesn't cover non-medical actions)
E other side (BZ likes): lots of reasons to have good samaritan statutes, including the one the court fails to
recognize: that people are drawn to try to help in emergencies, and we want the law to encourage these
motivations, and society is litigious. so statutes about trying to restore ppl's sense to try to help
2 since text doesn't contain description of need to contain medical care, so means we want to support instinct
c Family immunity. exists in some form in all jurisdictions (but gone as a formal immunity). generally lawsuits brought on
these issues get thrown out on no duty issues.
1 different rationales from charitable, and different set of attacks
used to be thought that wives and husbands couldn't sue each other
then was changed to prevent insurance collusion
don't want to hash out family quarrels in courts doing tort law
d Charitable immunity exists in some form in all jurisdictions. used to be thought discourages charitable enterprises by
imposing tort liability on them. now, not thought that a right way to subsidize, and that this would be covered by
insurance.
v Preemption Defense. if exhaustively legislated, then there is preemption read in by courts. federal court can look at
whether congress intended to "occupy the eld completely" or if there's any room for state court to act. Compliance with
federal statute does not preempt state tort suit in negligence (Wyeth)
i Federal preemption: mostly done if at all by courts, not legislatures. exceptions (done statutorily): federal law on nuclear
power plants, aviation, some others
ii historically, compliance with federal regulations and statutes would be brought to jury as evidence of non-negligence.
relevant, but not dispositive. this is still the black-letter law.
iii like Grand Trunk: pervasive duty of reasonable care, statutes guide
iv Wyeth v. Levine. Compliance with federal statute does not preempt state tort law. No federal preemption of state tort
suit by FDA approval of drug label, Ps can still recover in state court.
1 Demeral and anti-nausea drug; arm had to be amputated with gangrene
2 P sues Wyeth, who knew of other ways to administer drugs besides IV
warned that there's a risk of gangrene with IV push, and did indicate it on the package that other ways are safer
claim against clinic settled
7.5 mil jury verdict against wyeth
D args: jury should have gotten comparative fault defense against clinic
3 D's major arg: federal preemption argument
crazy system where companies can spend millions making sure they have perfect compliance with FDA
no express preemption clause in FDA law, so have to argue that on facts of partic case, conict between living up to
what FDA says and what state tort law tells them to do (implied preemption arg)
BZ says preemption is perfect defense for this.
Bush puts out preamble saying it sees FDA regs as oor and ceiling (Bush administration loves preemption args),
with new set of regs on how to label products for FDA, so that bolsters preemption argument
Wyeth had suggested changing warning and FDA said not to bother
Wyeth goes to VT supreme ct, takes FDA preamble with Chevron doctrine (deference to agency's determination)
4 if you get rid of all failure to warn claims for all pharma products so long as company has used fda-prescribed
warnings, then all pharma products liability claims are broad
5 VT SCt rules against Wyeth. No broad preemption doctrine in this case
6 Stevens, for majority of ve, said no preemption
very pro-plaintiff
lower courts have been moving closer to preemption position, now less valid
not true that federal law closed off opportunity to provide more warning
similar to VT S.Ct. on FDA preamble:
no evidence that Congress thought that FDA screening would be alternative to tort liability. not plausible that
Congress was trying to close off state tort liability
not Cnostitutional or common law decision, but a
7 Thomas says about states rights, no federal preemption of state tort law (boldest anti-preemption opinion)
8 alito says in spirit, stepping back form geier
9 defense lawyers and drug companies say institutional competencies depend on permitting FDA to determine, and not
permitting juries to second guess.
federalism issues
issue: drug company's argument is good
statutory interpretation and separation of powers
v tobacco precedent: federal gvt regulated warning and said state couldn't do any more, state couldn't add reqts (cipalone,
predecessor case. stevens bought tobacco company's arg that they're preempted in failure to warn). for cigarette law
suits where an express piece of statute says that conicting statutes overruled (no such statute in Geier)
vi Geier v. American Honda Motor Co., 2000, p. 1054. Car crash with P in car that doesn't have airbag. Liability would
conict with federal airbag phase-in program, so no liability b/c D complied with federal safety standards/ statutes
1 Alleged fault in car has no relationship to why there was an accident. case about how bad P's injury was given that
there was a crash.
2 claim: car should've had an airbag, and if it had, P would not have been nearly as badly injured
3 federal gvt was using slow phase-in policy, so case says it would be wrong to impose liability on Honda for failing to
put an airbag in during phase-in period, because that is equivalent of a safe harbor. imposing liability would conict
with government's plan
4 understanding aims of federal scheme would show you that state tort law would frustrate what fed gvt was trying to do
B Negligence
Defenses
v Preemption Defense. if exhaustively legislated, then there is preemption read in by courts. federal court can look at
whether congress intended to "occupy the eld completely" or if there's any room for state court to act. Compliance with
federal statute does not preempt state tort suit in negligence (Wyeth)
vi Geier v. American Honda Motor Co., 2000, p. 1054. Car crash with P in car that doesn't have airbag. Liability would
conict with federal airbag phase-in program, so no liability b/c D complied with federal safety standards/ statutes
3 federal gvt was using slow phase-in policy, so case says it would be wrong to impose liability on Honda for failing to
put an airbag in during phase-in period, because that is equivalent of a safe harbor. imposing liability would conict
with government's plan
4 understanding aims of federal scheme would show you that state tort law would frustrate what fed gvt was trying to do
5 here, Breyer is the beginning of a good period for Ds in preemption cases. even where Ds can't show clear conict,
can show frustration of purpose (like here, amorphous)
vi superseding cause
vii Procedural Defenses (statute of limitations, etc)
viii Statutory Defenses
Remedies
i damages (main remedy). jury question
a compensatory (core type of damages). jury, normally not reformed by judge unless "shocks the conscience" or
"displays passion or prejudice"
1 economic damages. limited by foreseeability of injury, not foreseeability of harm. if some injury was foreseeable,
then all resulting injury is recoverable. (eggshell skull rule). P should be made whole. see notes on coherence
i Smith v. Leech Brain Ltd., QB 1962 p. 463. Worker burned by hot metal causing cancer and death, q of whether
to compensate unforeseeable injuries of cancer and death (yes, because some injury was foreseeable). Extent of
liability case (eggshell skull in negligence damages)
ii Mustapha (guy who saw y in delivered water) got huge award ($hundreds of thousands). ultimately reversed.
Guy had eggshell psyche, but BZ thinks only emotional harm (so fails on duty)
2 non-economic damages
i makes damages in US on average much bigger than other legal systems (incl pain and suffering)
ii **single biggest target for tort reformers, esp. legislative. majority of states have some sort of damages reform.
many have pain and suffering caps and/or punitive damages cap
iii Kenton v. Hyatt Hotel Corp. MO 1985, p. 469. P injured when hotel skylight fell in, jury verdict was not excessive,
court doesn't want to micromanage evidentiary decisions
a Issue: should evidence have been let in about the disaster at the hotel? (yes)
P says to show how she was injured
D says not probative, inammatory
b Issue 2: on admission of expert ev. on law school
c Issue 3: on whether damages are excessive. defer to jury, as long as fair
d P's lawyer who is representing client well will bring jury info to get them to sympathize, to get them to ratchet up
the size of the verdict
think about all types of damages
think about past and future
past econ: bills accumulated, lost wages
future econ: future medical bills, lost wages
past and future lost wages, pain and suffering
lawyers did a good job of the above in this case
e D will try to protect against the above. Weren't hard-nosed enough to get a stipulation to stop this evidence in
(appealed here)
f appellate court doesn't want to micro-manage how trial court managed evidentiary decision
b punitive damages
1 many states have tort reform here, in the form of punitive damages caps
2 standard: willful or wanton; high negligence, willful blindness or conscious disregard (where court thinks
there's knowledge but can't quite get there); reckless indifference (Restatement 500: wanton disregard or deliberate
indifference). common law/state law standards
i Mathias v. Accor Economy Lodging, 7th Cir. 2003, p. 489. Motel knew of bedbug infestation, as did parent
company, and did nothing to make sure rooms were safe. unjustiably failed to avoid known risk to P, so punitive
damages were justied (in proportion to wrongfulness) as to be effectively deterrent (as based on how bad the
action and how often and how likely to be caught), so D's wealth relevant
ii National By-Products Inc. v. Searcy House Moving Co., AL 1987 p. 485. No punitive damages in car accident
(where truck slammed into moving house) because speeding truck with bad brakes was not wanton/willful (only
grossly negligent). Dissent: actual malice not required. reckless/wanton enough, and here at least reasonable
minds could differ on that, so go with jury decision
3 D's wealth is relevant to punitive damage award (Mathias)
4 district split on burden of proof of wantonness/willfullness/etc. many use clear and convincing evidence (less than
beyond reas doubt, more than preponderance)
5 Purposes are now both: (1) private atty general (penalty through medium of private plaintiff who is also looking for
compensatory damages as in BMW) picture; and (2) person looking for ample damages for himself (more than he
needs to be made whole)
i punitive damages have been around for hundreds of years in torts for purpose of making injured parties whole
ii mistake to infer that what pun damages has always been is private AG mechanism for juries and states to hit bad
Ds with penalties. used to be vindictive, opportunity for private party to inict pain on a defendant who has willfully
wronged them
iii then, not vengeance but compensation (changing the function). BZ skeptical
iv today, more private AG role. big chunk about individual vindication for those where compensatory damages don't
do whole trick. but some is about having a system of private law that can ratchet up the damages and deter
B Negligence
Remedies
b punitive damages
5 Purposes are now both: (1) private atty general (penalty through medium of private plaintiff who is also looking for
compensatory damages as in BMW) picture; and (2) person looking for ample damages for himself (more than he
needs to be made whole)
iii then, not vengeance but compensation (changing the function). BZ skeptical
iv today, more private AG role. big chunk about individual vindication for those where compensatory damages don't
do whole trick. but some is about having a system of private law that can ratchet up the damages and deter
v change in nature has led SCOTUS to reconsider importance of procedural protections in punitive damages in tort
cases
vi lack of guidance for punitive damages is consonant with the idea that where there's a willful wrong, the jury has
the discretion to permit damages that seem just; but needs process if the jury is allowed to pick the penalty
vii Snyder v. Phelps MD 2008 (handout). Court allows punitive damages against Westboro Baptist Church where
hate group/church protested at soldier's funeral, citing deterrence (public law) but clearly contemplating
compensation/vindication (private law)
a jury found protest to be hateful, etc., and gave compensatory damages on IIED, invasion of privacy ($2.9
million). punitive damages, too ($8 million).
b because civil conspiracy alleged, each responsible for all actions
c challenge to punitive damages on ratio
d Ps lawyer said to give big verdict so other families don't have to deal with this in the future
Ds are challenging this on if it's an inappropriate use of prospective non-party harm (like in Philip Morris
allegation of retrospective non-party harm), they say it makes it unconstitutional b/c deprivation of property
without due process
court says it's ne b/c it's future, not past, so not like Philip Morris
e BZ says here, the "private version" of person looking for more than 'compensatory' to be made whole. it's
vindication much more than public law
6 Appellate Review of punitive damages/Due Process Challenges (if grossly excessive)
i black letter law in US in every jx: reprehensibility, ratio of punitive damages to actual harm, comparable sanctions
(BMW v. Gore)
a BMW of North America, Inc. v. Gore, 517 US 559, p. 1001. $2 million judgment (reduced on appeal from $4
million to be only for Alabama) for Dr. Gore against BMW for small repainting (less than 3% of value; $3k
compensatory damages) is grossly excessive and therefore a due process violation based on three-factor test
ii Ratio of Punitive Damages to pecuniary: State Farm v. Campbell says beyond 1-digit ratio won't y; Exxon says
ratio above 1:1 might not work
iii Appellate courts review punitive damages de novo for Constitutional excessiveness (Cooper v. Leatherman)
[unlike Gaspirini, holding no hard look review of compensatory damages by federal appellate courts may ]. So
second bite at getting damages reduced
iv Problem of damages for parties not before the court (Philip Morris v. Williams)
a In BMW v. Gore, ct. appeals reduced trial court verdict of $4mil to $2mil because it included nationwide
behavior (and AL court could only punish for wrongs in AL)
b Philip Morris v. Williams,SCOTUS '07, p. 1012, ct. says you can't base punitive damages on a desire to punish
for wrongs to parties not before the court, but can consider their injuries when considering degree of
reprehensibility.
widow of smoker sues cigarette company, says Philip Morris misled P's decedent to believe product was safe
(negligence and fraud are core of cause of action)
jury nds Philip Morris guilty of negligence and deceit, awards compensatory damages of $821,000, $79.5
million in punitive damages
punitive damages are available bc of evidence of wilfully misleading
Issue: does DPC allow a jury to base its punitive damage award partly on a desire to punish ppl not before the
court? (no)
don't know who all the people are
D can't defend himself against hypothetical Ps
crim law has procedural requirements before punishment, so if we are going to punish, we need
protections. responses:
clear and convincing evidence is already used, so greater than preponderance, closer to crim law's
beyond a reasonable doubt
no liberty deprivation here, so not entitled to full regimen
Scalia says (in BMW v. Gore) due process is time-dated. We should interpret it as demanding that you
get whatever jurisdictions would have deemed necessary in the 19th c. (when it was invented) when the
state took money from you in the guise of punitive damages.
over the last 20 years (mostly products liability) that disallowed recovering for non-present Ps
on BMW guideposts, is there enough reprehensibility to justify the punitive damages?
SCOTUS looks at reprehensibility
SCOTUS doesn't say anything about the ratio, even though Philip Morris asked for it in cert petition
SCOTUS declined to look at gross excessiveness issue
In State Farm v. Campbell, court says anything beyond 1-digit ratio won't y, is presumptively a problem
in exxon (non-const law case), scotus says ratio above 1:1 might not work
maybe the ratio isn't just to actual harm, but to actual and/or potential harm (Stevens fudges on this in
BMW v. Gore).
Now clear that it's supposed to be to actual harm
comparable criminal sanctions
B Negligence
Remedies
b punitive damages
6 Appellate Review of punitive damages/Due Process Challenges (if grossly excessive)
iv Problem of damages for parties not before the court (Philip Morris v. Williams)
b Philip Morris v. Williams,SCOTUS '07, p. 1012, ct. says you can't base punitive damages on a desire to punish
for wrongs to parties not before the court, but can consider their injuries when considering degree of
reprehensibility.
on BMW guideposts, is there enough reprehensibility to justify the punitive damages?
SCOTUS doesn't say anything about the ratio, even though Philip Morris asked for it in cert petition
Now clear that it's supposed to be to actual harm
comparable criminal sanctions
sanctions for murder, etc. are pretty high
What Philip Morris did was engage in massive ad campaign with built-in falsehoods that it knew were false,
and got people addicted, etc. So there is a 'grand bad act' , so gure out right penalty for someone who acted
so badly toward so many people.
not for damage to others not before the court (would be a procedural due process problem)
instead, here, big ne for how bad the behavior was in the state of Oregon.
ok to add punitive damages for added reprehensibility of conduct, and you can infer added reprehensibility
from number of victims (so can look at non-parties as long as it goes to reprehensibility)
dissenters' problem: too-ne distinction in what we're allowed to look at other victims for. also looks like case
is all about looking at reprehensibility. third, looks like Philip Morris' jury instruction doesn't help the jury gure
out the distinction of what they're allowed to use info about non-parties for. trial judge rejected their jury
instructions.
Another case (FORD (Arkin)), Ps said that you SHOULD consider other potential Ps, bc not everyone will bring
suit, and the point is to deter.
It's like class action without a class. But we have class action. If you're going to hold responsible for
damages to other people, you have to litigate those cases and get those injured parties to recover
c nominal damages
d statutory tort reform
1 some states say non-economic damages can't be more than a certain factor or fraction of economic damages
2 some states have total cap including economic damages
3 some states have punitive damage caps
4 informal tort reform: get judges elected who are sympathetic to cutting down verdicts
ii injunctive relief
a lots of ways, but not the core
b examples
1 nuisance is a tort action
2 recalls
3 medical monitoring
iii (declaratory relief)
C Strict Liability
1 Common Law Strict Liability
i Rylands
ii wild animals (the strict liability before Rylands)
iii blasting (still a big one now)
2 Statutory Strict Liability
i dogs
a Pingaro v. Rossi (NJ 1999) p. 147. dog-bitten meter reader can keep jury verdict, needn't prove that D knew of dog's
dangerous propensities (strict liability for dog owners under NJ statute)
1 not a negligence case because strict liability
2 rare to have genuine strict liability for some areas of torts
3 can have or not have contributory negligence in strict liability claims
4 case not airtight because statute says the person has to be there lawfully, and electric company said they wouldn't go
in if D wasn't there
5 statute seems to require choice: don't have do gor be responsible for anything that happens
simplicity for courts and dog owners
ii reworks
3 Ultrahazardous Activities
i Restatement 519 and 520: strict liability for abnormally dangerous activities. six factors for abnormally dangerous
(ultrahazardous)
a high degree of risk
b likelihood that resulting harm will be great
c inability to eliminate risk by reasonable care
d activity is not common usage
e inappropriate activity to place
f weigh value to community against dangerous attributes
ii Rylands v. Fletcher, 1868, p. 825. Miller (D) strictly liable for any result of any non-natural use of land (here, ooding from
digging).
a Miller (Rylands) digs on his land and oods mines of miner (Fletcher)
b no liability for 'natural use' of land
c bringing something to land which he knows will be mischevious if gets on his neighbour's should be obliged to make
good the damage that ensues from not conning
C Strict Liability
3 Ultrahazardous Activities
ii Rylands v. Fletcher, 1868, p. 825. Miller (D) strictly liable for any result of any non-natural use of land (here, ooding from
digging).
b no liability for 'natural use' of land
c bringing something to land which he knows will be mischevious if gets on his neighbour's should be obliged to make
good the damage that ensues from not conning
d Defendant will be liable when he damages another by a thing or activity unduly dangerous and inappropriate to the place
where it is maintained, in light of the character of that place and its surroundings
e BZ: Case is framed by failure of three other causes of action
1 could he have sued in trespass? (is there intentionality to the invasion? prob not)
2 could he have sued in nuisance? (not continuity of ooding; one episode)
3 could he have sued in negligence? (court says it looks like negligence by contractor, but since an independent
contractor with no vicarious liability, Rylands can't be sued). privity problem
f BZ: why don't we do this all over tort law?
g BZ: invasion of a right, rather than a wrong
iii Klein v. Pyrodyne Corp., '91, p. 827. Fireworks company is strictly liable for damages/injuries caused by display because
"abnormally dangerous"
a Ps injured when hit by stray shell
b reworks co had mandatory $1mil insurance
c appeal from summary judgment that strict liability is standard for pyrotechnicians
d Held: Yes, reworks are abnormally dangerous and therefore subject to strict liability based on factors in restatement
e also: policy. problem of proof
f intervening cause relieves strict liability only if it is unforeseeable (Ds claim of manufacturer's liability is not so)
D Products Liability
1 History/Development (TORT and CONTRACT)
i trio of cases that lead up to Greenman
a macpherson (gets rid of privity for negligence claims)
b escola (coke bottler, 845) (softens up a lot on res ipsa in claims about defective products)
c henningson v. bloomeld motors (NJ 1960) declares car sales contract disclaimer of liability for personal injuries void as
against public policy (852) (gets rid of privity in breach of warranty action for people injured by dangerous products)
i focus on long distributional chain in commercial contracts now
ii Greenman v. Yuba Power Prods., CA '63, p. 854: recovery for defective lathe (in negligence/warranty). rst strict products
liability
a man injured using lathe that his wife bought him. jury found liability for manufacturer, not retailer.
b claims in warranty and negligence (succeeded against manufacturer, not retailer)
c Traynor says there is sufcient evidence to nd that claim was in negligence. Don't know if jury found in negligence or
warranty
d Recognizes strict liability for defective lathe, instead of making case in warranty. No privity
e question of notice? Traynor says it's not important because of strict liability
f marriage of negligence and warranty=strict products liability
g Traynor says it's about xing wrong, not fault
iii Greenman caught on, through Restatement (Second) 402(a), 1965. Chronology of Products Liability:
a Phase after Greenman '63-'72: Pro-P movement *
i permitting bystanders to recover suggests its negligence based
b Phase 2: '72-mid-'80s: market share liability, design defect cases (Strict Products Laibility with a vengeance). class
actions, punitive damages,
i SCOTUS gets into Daubert and punitive damages, and standards for saying that a product is defectively designed
c Tort Reform
d Restatement Third: products liability is just a variation on negligence, not strict liability. pulling back
2 Elements
i P was injured
a protects bystanders (on the basis of foreseeable risk) (Greenman)
b bodily injury or property damage, NOT pure econ harm
ii D was commercial seller (manufacturer, distributor, retailer, etc) of product
a leased products count
b product is fuzzy category but does NOT include
i real property (although manufactured homes, winnebagos, count)
ii human body parts
iii used products sold by previous owners
iv usually live animals
v textual materials (but sometimes faulty maps)
iii product was defective at time of sale
a manufacturing defect (Escola; lemon): defective when product left factory
i Gower v. Savage Arms, Inc. (E.D. Pa. 2001, p. 876) All types of defects alleged, only two are feasible claims (existed
when product left factory), must exist at time that product leaves factory to be feasible claim.
2 Elements
a manufacturing defect (Escola; lemon): defective when product left factory
i Gower v. Savage Arms, Inc. (E.D. Pa. 2001, p. 876) All types of defects alleged, only two are feasible claims (existed
when product left factory), must exist at time that product leaves factory to be feasible claim.
Gower was out shooting when he shot himself in the foot. Four defects claimed:
Unloading defect: The rie could not be unloaded when the safety was on. Court rejects the unloading defect
because it wasn't causally related to the injury. Gower wasn't trying to unload the rie at the time that he shot
himself. Court grants D SJ on this.
Insufcient Warnings: The rie didn't come with sufcient warnings. Court rejects the insufcient warnings on two
grounds, rst, that Gower was admits he was aware of the danger of the rie, and second, that ries were shipped
from the factory with manuals, even if Gower himself did not receive one. Court grants D SJ on this.
Detent defect: The rie didn't have a detent system which would have made it stay in the safety position.
Manufacturing defect: The rie was manufactured with a metal ridge not usually present which made engaging the
safety more difcult.
ii Escola v. Coca Cola, CA '44, p. 845. Waitress injured by exploding coke bottle wins against bottler on res ipsa (in
negligence). Traynor concurrence advocates for for strict liability, as opposed to relaxing requirements of res ipsa
P was injured when transferring coke bottles from tray to fridge; lost ngers, messed up nerves, sued coca cola
bottling company (not employer, coke, etc). jury verdict for P (on res ipsa theory)
Issue on appeal: whether res ipsa loquitur applies when bottles had been sitting there, temperature changes,
motion, (relaxing requirements of exclusive control)
The court doesn't agree that nothing could have happened, but there is enough evidence that nothing actually
happened
The court says that evidence is good that glass manufacturer tests for bottle integrity is 'pretty near infallible'
Under Res Ipsa, jury needn't nd for D, just rebuttable presumption
Traynor, famous concurrence, that res ipsa case is too weak. Thinks that its right to come out for P, but giving it to
jury means we know it will come out for P. If we think reasons are good enough for Ps to win in this kind of case
even if they can't reach evidentiary bar, let's just call it strict liability and be open about it
b design defect (Cepeda, Barker, Soule)
i Consumer Expectations Test: if the product disappoints ordinary consumer expectations
some jurisdictions
CA has said you can't use the argument that everyone knows it's dangerous
In CA, limited to circumstances when ordinary consumer would really know what to expect (Soule), so no expert
testimony
ii Risk Utility Test: risks of design outweigh utility
Restatement Second dened design defect, and chose it as the major form, and chose risk-utility as the test for it
majority position
Most famous case of design defects: Ford Pinto gas tank was placed in the back and would explode on light impact.
Ford knew this would happen, and did it only on a cost/benet analysis to save a few dollars a car.
corporations believe risk utility is less discretionary than consumer expectations, and can create a record with risk
utility
iii some courts still do a disjunction or a hybrid. Restatement 3d says that P has to show that there is a reasonable
alternative design (pro-D)
Barker v. Lull Eng'g Co. (Cal. 1978, p. 901). Injured construction machinery operator. Court rejects 'unreasonably
dangerous' and allows either consumer expectations or risk/utility test
Facts: Barker was injured at a construction site when he operated a loader on steep terrain and the load tipped.
He leapt from the loader but was hit by a falling piece of lumber. Jury returned verdict for the defendant after an
instruction that defendant was liable if the product was unreasonably dangerous.
Holding: A product is defective in design either if 1) the product has failed to perform as safely as an ordinary
consumer would expect when used in an intended or reasonably foreseeable manner, or if 2) in light of the
relevant factors, the benets of the challenged design
are outweighed by the risk of danger inherent in such a design.
Opinion: "Unreasonably dangerous" test is an unreasonable bar to recovery, in defective design cases as well as
manufacturing defect
cases. The appropriate test is hindsight, in addition to ordinary consumer expectations. Balancing tests are
impossible to avoid. Reasonable precautions do not matter.
BZ: There are really three tests here: 1) Is the design one that makes the product unreasonably dangerous for its
intended use (trial court), 2) Is the design one that makes the product more dangerous than an ordinary
consumer expects, 3) Does the product fail a risk/utility test? Holding says plaintiff is entitled to proceed under
either Test #2 or #3.
Soule v. GM (Cal. 1994, p911) Risk utility test must be used when consumer expectations test doesn"t work (as in
sophisticated products). Shift to judge choosing which test, instead of P
Facts: Soule got into a crash, and her wheel collapsed, which caused it to crumble part of the car and break both
of her ankles. She sued GM, saying that the collapse of the wheel was a manufacturing defect and a defective
design. Jury, on the ordinary consumer expectations standard, found for plaintiff and gave her 1.65 mil.
Holding: The ordinary consumer test should be limited to circumstances when an ordinary consumer really would
know what to expect, and the cost-benet test should be used in cases like this, with lots of nuanced expert
testimony. However, in this case, the error was harmless. SO GM lost, but corps in general won, b.c now you
have to use risk utility test for sophisticated products. if you're going to use consumer expectations test, can't
have expert testimony
2 Elements
iii some courts still do a disjunction or a hybrid. Restatement 3d says that P has to show that there is a reasonable
alternative design (pro-D)
Soule v. GM (Cal. 1994, p911) Risk utility test must be used when consumer expectations test doesn"t work (as in
sophisticated products). Shift to judge choosing which test, instead of P
Holding: The ordinary consumer test should be limited to circumstances when an ordinary consumer really would
know what to expect, and the cost-benet test should be used in cases like this, with lots of nuanced expert
testimony. However, in this case, the error was harmless. SO GM lost, but corps in general won, b.c now you
have to use risk utility test for sophisticated products. if you're going to use consumer expectations test, can't
have expert testimony
Opinion: Barker meant for the second prong to be obligatory, since sometimes the rst prong simply doesn't
work and will lead to runaway jury verdicts. However, almost all of the testimony at trial was about the costs and
benets, so the jury probably really didn't consider the other test too much, so the error is harmless.
Zipursky: Change from Barker: judge chooses which test is used, instead of plaintiff. Anytime the jury needs
experts to explain the design to them, the consumer test (Test #2) can"t be used and the risk/utility must be used.
Cepeda v. Cumberland Eng'g Co, (NJ '78, p. 886). Guy loses nger in pelletizing machine without safety shield.
Manufacturers cannot escape liability on grounds of 'misuse'/abnormal use if the actual use proximate to injury was
objectively foreseeable. No contributory negligence in strict products liability, but can have assumption of risk.
Judge Wade's conception of design defect includes hindsight: "so likely to be harmful to persons or property that a
reasonable prudent manufacturer who had acutal knowledge of its harmful character would not place it on the
market."
iv Products Liability for Prescription Drugs: Different Approaches (design defect for a certain kind of product)
Comment k, R2 402A: provides an exception from strict liability when a product is deemed to be unavoidably
unsafe. Two interpretations of this:
Comment (k) Selective Exemption: allows D to prove that product is too socially valuable to be subject to strict
liability on a case-by-case basis
Courts should be open to the possibility that some products will carry unavoidable unsafe risks to the
consumer (more than the ordinary consumer would know)but the product has tremendous social value and
cannot be made in a way that is really going to be safe.
Application of comment k has been justied in some jurisdictions as a way to strike a balance between a
manufacturer"s responsibility and the encouragement of research and development of new products.
Seller of product shouldn't be held to strict liability for unfortunate consequences attending their use, merely b/
c he has undertaken to supply the public with an apparently useful and desirable product, attended with a
known but apparently reasonable risk.
Most jurisdictions apply on a case by case basis, (societal interests in ensuring marketing and development of
prescription drugs will be adequately served without the need to resort to a rule of blanket immunity). Majority
of jurisdictions use k as an afrmative defense, with the trend toward the use of risk-utility in order to
determine whether the defense applies
Comment (k) Blanket immunity: total immunity for prescription drugs from strict liability for design defects
most conservative, pro-D route to take.
A few jurisdictions have interpreted comment K in a manner that strictly excepts all prescription drugs from
strict liability.
Under the minority view, a drug that is properly manufactured and accompanied by an adequate warning of
the risks know to the manufacturer at the time of the sale is not defectively designed as a matter of law.
Purposes/Reasons
Institutional Condence issue: may not trust that the jury will take the benets as enough (not trusting them to
do risk-utility test accurately)
May fear that even having the risk of these things going to court and occasionally win for P will drive up the
cost of these products
May have serious qualms about the cost-spreading rationale for this productnot socially benecial.
Cases
Freeman v. Hoffman La Roche, Inc. (Neb 2000), p. 944: apply comment k (limiting strict liability for
prescription drugs) on a case-by-case basis as an afrmative defense against the 'consumer expectations'
allegation.
trial court threw out the whole thing on demurrer, with D's argument that it deserved more than blanket
immunity
court got so angry that it said that it no longer deserved blanket immunity, and was reduced to case-by-
case
P suffered injury as a result of taking Accutane, designed, manufactured, wholesaled, retailed, fabricated,
and supplied by D.
Liability arises when an article a manufacturer has placed in the market, knowing that it is to be used
without inspection for defects, proves to have a defect which causes injury rightfully using the product.
Use Comment K on case by case basis as an afrmative defense against consumer expectations and don't
use Section 6 of restatements b/c too strict (recovery would be nearly impossible)
Court here denies the 3rd Restatement Provision that the ALI adopted. You might be able to argue
assumption of risk here.
*Conditions for Exception to Apply
product is properly manufactured and contains adequate warnings, and
its benets justify its risks, and
the product was at the time of manufacture and distribution incapable of being made more safe.
Brown v. Superior Court (CA), p. 942: D-friendly, disallows the standard design defect tests under certain
conditions. Pharma should be treated differently b/c some products are unavoidably dangerous. Ps can only
sue under mfg defect, negligence, warranty, misrepresentation, or failure-to-warn
P-unfriendly rule for use of PL theories for prescription drugs:
2 Elements
iv Products Liability for Prescription Drugs: Different Approaches (design defect for a certain kind of product)
Comment k, R2 402A: provides an exception from strict liability when a product is deemed to be unavoidably
unsafe. Two interpretations of this:
Cases
Brown v. Superior Court (CA), p. 942: D-friendly, disallows the standard design defect tests under certain
conditions. Pharma should be treated differently b/c some products are unavoidably dangerous. Ps can only
sue under mfg defect, negligence, warranty, misrepresentation, or failure-to-warn
P-unfriendly rule for use of PL theories for prescription drugs:
A P alleging injuries caused by use of a prescription drug
Sold by the seller with adequate warnings of health risks
that are posed by the drug"s use, and
of which the seller knew or should have known at the time of sale,
May not invoke either the consumer expectations test or the risk-utility test to impose liability on the
seller.
Don"t want to use risk utility for drugs because we don"t want to keep all these products off the market. in
general don"t want to penalize the medical profession too much
R3 6 and the Reasonable Physician Standard: whether reasonable providers knowing the foreseeable risks and
benets would prescribe it. (No state courts have adopted this provision)
c FAILURE TO WARN or instruct (Anderson): likely on exam. most pharma cases
i applies to warnings or instructions, applies to verbal materials that accompany a product. can use on anyone who is
seller of product
Failure to warn cases assert that the product is defective because it should have been delivered with more
information for consumers about the dangers associated with it and how to use it safely.
fundamental concept: because of attribute (warning/instructions), product is viewed as dangerously defective
don't need to warn of obvious dangers
BZ says can be very pro-P
all about things that are on paper: express waiver
ii most jurisdictions treat it as products liability, not negligence. (at least for the purposes for statute of limitations or
damages rules, or etc etc)
iii Risks that Require Warnings
Knowledgeeither actual or constructiveof the product"s risks is a requisite for strict liability for failure to warn. jury
q
Unlike design and manufacture defect, for failure to warn you DO look at the manufacturer/seller"s conduct.
To make manufacturer liable for risks they couldn"t know about would be to make them an insurerwhich they
are not.
Strict liability for failure to warn requires proof that the D failed to adequately warn of the risk not just when the
risk was known or knowable but also when the failure to warn renders that product unsafe to users.
Anderson v. Owens-Corning Fiberglass, CA '91, p. 957 : in asbestos case, D must have knowledge of risk or
risk must be scientically knowable at the time and D should have known
P sues for exposure to asbestos on failure to warn claim. (he worked there from '41 to '71)
D wants to present state of the art evidence that at the time of manufacture and sale, there was no scientic
knowledge concerning the risks of asbestosthe risks were not and could not be known and therefore could
not be warned about.
CA Supreme Court says risk must be known or reasonably scientically knowable at the time in order for strict
liability for failure to warn to apply.
D allowed to present state of the art evidence to show risk was not known or knowable by the application of
scientic knowledge available at the time of manufacture. If couldn"t have known abt the dangers don"t have
to warn abt it.
Black Letter Law: Failure to warn of obvious dangers is not actionable.
(Rationale: Fear of slippery slopeso many obvious dangers, we don"t want to have to warn about them all.
(Maneely v. GM (note p. 964): Ps sleeping in back of pick-up truck on highway, thrown from truck and paralyzed.
SJ granted for GMno obligation to warn of obvious risks of forcible impact associated with riding in bed of a
pick-up truck.
Sophisticated Users: Manufacturer"s duty to a sophisticated user will be narrower, because certain risks that will
not be obvious to the layperson may be obvious (or at least reasonably discoverable) to the sophisticated user.
See House below.
Restatement 3rd 2: A seller need not warn of every known or knowable danger that is not obvious. Whether a
warning is required involves whether the omission of the instructions or warnings renders the product not
reasonably safe. (warnings are not a substitute for the provision of a reasonably safe design)
Whether a product is rendered not reasonably safe is normally for the jury to decide.
Livingston v. Marie Callender!s Inc (p. 965).: Seller may reasonably assume those with common allergies
will be aware of them, and he is not required to warn against them. Where the product contains an ingredient to
which a substantial number of the population are allergic, and the ingredient is one whose danger is not generally
known, or if known is one which the consumer would reasonably not expect to nd in the product, the seller is
required to give warning against it, if he knows or should have known of the presence of the ingredient and the
danger.
iv Adequacy of the Warning: (jury)
Factors courts focus on:
Content and comprehensibility
Intensity of expression
Characteristics of expected user groups.
(a) placement and prominence of the warning on the product itself and/or in accompanying packaging or
instructional materials
2 Elements
iv Adequacy of the Warning: (jury)
Factors courts focus on:
Characteristics of expected user groups.
(a) placement and prominence of the warning on the product itself and/or in accompanying packaging or
instructional materials
(b) nature of the risks posed by the product
(c) extent to which the risk and its consequences, if realized, are dened and communicated by the warnings
(d) precautions that can and should be taken in light of the warnings
(e) whether the warning is given in conjunction with other information that might cause confusion or a
downplaying of the danger
(f) what the seller knows or should know about likely reactions to the warnings.
Inclusion of a warning will not necessarily relieve the manufacturer of liability for injuries under a failure to warn
theory. Warnings and instructions must be adequate to notify the consumer of the existence and nature of the
hazard at issue.
Issue of adequacy is normally for the jury
Schwerer v. Union Oil, p. 966: industrial solvent contained warnings about wearing gloves and mask, but no
warning of liver disease, which is what P got, so he got to go to jury; adequacy of warning is issue of fact for jury
P sued manufacturer and distributor of solvent he used at work after suffering liver damage from inhaling and
touching it. Undisputed that Ds provided safety materials to P"s employer, which contained warnings about what
protection users should wear when working with the solvent. Indicated contact could result in rashes, and
asphyxiation among other things.
Questions to ask of D: do they warn of everything? is the warning adequate, is it sufciently prominent and scary
and clear??
adequacy of warning is issue of fact
have to prove that failure to warn is cause of injury, and that, had the warning been adequate, things would have
come out differently (as in motus and wyeth)
Court would not grant SJsaid liver disease is much more devastating than rashes. D knew about risk of liver
disease and failed to warn about it, so Ds have not shown the warnings were adequate as a matter of law.
v To whom should warning be given?
If the product is an ordinary consumer product, any required warnings must be conveyed directly to the consumer
through labels on the product and/or in accompanying packaging or instructional materials.
Learned Intermediary Doctrine: When product alleged to be defective for lack of adequate warning is a
prescription drug, tort law generally obliges seller to provide warnings and instructions only to the prescribing
physician, not the consumer.
Rationale: as a medical expert, patient"s prescribing physician is in the best position to evaluate the often
complex information provided by the manufacturer concerning the risks and benets of its drug or product and to
make an individualized medical judgment based on the patient"s particularized needs and susceptibilities, as to
whether the patient should use the product.
Restatement 3rd 6(d) incorporated the learned intermediary doctrine, and also an exception for when the
manufacturer knows/has reason to know health-care providers aren"t in position to reduce risk of harm in
accordance with the instructions, so duty is directly to the consumer. "A prescription drug or medical device isn't
reasonably safe due to inadequate instructions or warnings if reasonable instructions or warnings regarding
foreseeable risks of harm are not provided to:"
prescribing and other health-care providers who are in a position to reduce the risks of harm in accordance
with the instructions or warnings; or
The patient when the manufacturer knows or has reason to know the health-care providers will not be in a
position to reduce the risks of harm in accordance with the instructions or warnings; so duty is directly to
consumer
so most pharma cases should be failure to warn
Exceptions: Ps suing for certain prescription medicines have sometimes succeeded in arguing that warnings
ought to have been given directly to consumers.
MacDonald v. Ortho Pharmaceuticals: manufacturer owes duty to warn the consumer directly of the health
risks associated with use of contraceptive. For some drugs, the manufacturer may have direct duty to
consumer. This has only been found for contraceptives, but can arguably be applied elsewhere.
Perez v. Wyeth Labs: When a drug manufacturer advertises directly to patients, it can incur liability for failing
to include adequate warnings of health risks in the advertisement itself.
vi Causation (heeding presumption)
Like manufacturing and design defect claims, Failure to warn action requires the P to prove that the defect (absence
of adequate warning) actually caused the plaintiff"s injury.
Unlike the other two sorts of defect cases, the application of cause- in- fact to failure to warn cases necessarily
raises the speculative question: would someone have selected a different course of conduct if different or greater
information or warnings had been provided?
the heeding presumption,
Most jurisdictions have the Heeding Presumption (402A of R. 2nd, comment j) that if instruction would've been
given, P would've followed it (rebuttable, shifts burden of proof)
Once P establishes the manufacturer provided inadequate warnings, the burden shifts to the defendant to show
that an adequate warning would not have been heeded. (Ps are entitled to a rebuttable presumption of
causationlike res ipsa.)
Rationale: Hard for P to prove that had there been an adequate warning, the accident wouldn"t have happened,
but part of the reason for creating strict product liability was to even the playing eld between P and D.
2 Elements
vi Causation (heeding presumption)
Most jurisdictions have the Heeding Presumption (402A of R. 2nd, comment j) that if instruction would've been
given, P would've followed it (rebuttable, shifts burden of proof)
Once P establishes the manufacturer provided inadequate warnings, the burden shifts to the defendant to show
that an adequate warning would not have been heeded. (Ps are entitled to a rebuttable presumption of
causationlike res ipsa.)
Rationale: Hard for P to prove that had there been an adequate warning, the accident wouldn"t have happened,
but part of the reason for creating strict product liability was to even the playing eld between P and D.
Restatement 3rd implicitly rejects the heeding presumption by saying P bears the burden in products liability, like
in other torts.
Some products liability suits involve allegations and proof of egregious wrongdoing. But, many courts have
adopted the heeding presumption, and some have stretched beyond it, often bordering on pure cost-spreading
approach to product liabilitywhere D did nothing obviously wrong but is well positioned to bear the cost of a
hapless victim"s injuries.
East Penn Mfg. Co. v. Pineda (note, 951): P, mechanic, suffered acid burn from car battery that exploded, and
sued for failure to warn. D rebutted the heeding presumption by presenting P"s admission he didn"t read the
label on the battery. Court allows for compensation, saying even if HE wouldn"t have read the warning, one of
his co-workers might have and then warned him.
Ayers v. Johnson & Johnson (note, 951): baby inhaled baby oil and becomes retarded. Parents sue for failure
to warn about risk of inhaling. Judge allows to go to jury which nds for P, despite fact other warnings were
present, just not about inhalation.
Motus v. Pzer Inc., 9th Cir. 2004: Wife sues Zoloft maker for failure to warn of increased suicide risk, after
husband commits suicide while on drug. Says D should have given more information to the doctor about the risk.
Pzer wins SJ motion on causation because doctor admits warning wouldn't have made a difference: he already
knew of increased risk of suicide, and would have still prescribed.
applied the learned intermediary doctrine; thus manufacturer discharges its duty to warn if it provides adequate
warnings to the physician about any known or reasonably knowable dangerous side effects, regardless of
whether the warnings reach the patient
The issue was causation (they use the substantial factor test); Heeding presumption.
But note, the P has to show causation (the relaxed causation standard we use for strict liability)
The question wasn't "did the drug cause the suicide?" instead, it's whether the warning would have made the
doctor act any differently
vii Wyeth v. Levine '09
Facts and PP
P went to clinic for migraine, got IV of Phenergen, which caused gangrene and eventually amputation of arm
P sued in Washington Superior Court for inadequate labeling, won $6mil from jury
D said it was impossible to meet VT common law standards and FDA standards, and that state claims would
interfere with the FDA
Superior Court jury instructions: FDA compliance could be considered but did not establish adequacy of
warning
VT supreme court upheld, saying FDA was a minimum and state tort law wouldn't frustrate its objectives
Held (Stevens): FDA approval of warning labels on prescription drugs does not bar state tort lawsuits
Congress did not intend to bar state law failure to warn suits
drug companies are primarily responsible for keeping their labels up to date and complete
FDA should police more closely
FDA should have clear mandate from Congress if it is going to try to eliminate state court lawsuits
Stevens recounts FDA's capacity problems
Thomas concurrence: only explicit statutory language can have a preemptory effect, and courts will only defer to
agency regulations with the force of law (again, backed by explicit Congressional intent)
iv defect was cause in fact and proximate cause of P's injury
3 Defenses: all negligence defenses except assumption of risk
4 Damages: same as for negligence
i compensatory (pecuniary and non-pecuniary)
ii punitive (if wanton or willful)
5 Indemnication
i statutory
ii contractual
iii equitable
6 Justications
i systemic reasons pertaining to access to proof that make res ipsa not generous enough
ii clean line between evidentiary access strength of D's position and evidentiary access Ps position that we should have a
stronger tool for litigation. "res ipsa plus"
iii as a policy matter, design system to put re under the feet of the manufacturers
E Expert Testimony
1 4 Daubert factors (codied now in federal rules of evidence 702), not just for scientists, for any expert witnesses
i theory/technique must have been tested
ii it must have been subjected to peer review
iii rate of error of theory or technique
iv how widely accepted in scientic community
2 needn't be generally accepted
E Expert Testimony
1 4 Daubert factors (codied now in federal rules of evidence 702), not just for scientists, for any expert witnesses
iv how widely accepted in scientic community
2 needn't be generally accepted
3 D's use Daubert motions to slow down litigation
4 Daubert v. Merrell Dow Pharma, SCOTUS 1993 (p. 992). Under gatekeeping idea of Federal Rule of Evidence 702, expert
testimony must be: (1) based on a reliable foundation, and (2) relevant to the task at hand. "Pertinent evidence based on
scientically valid principles will satisfy those demands."
5 Aldridge v. Goodyear Tire and Rubber (1999), p. 242. Expert testimony inadmissible under Daubert in case against tire plant
for injury from chemicals

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