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TORTS OUTLINE (FALL 2010, CHIANG)

Table of Contents
Table of Contents...................................................................................1 Intentional Torts....................................................................................2 Assault................................................................................................................ 3 Trespass to Chattels.............................................................................................5 Necessity as Defense.............................................................................................6 Exception to Duty: Duty to Rescue and Duty to Control Others.............................8 Reasonable Person..................................................................................................9 Negligence: Assessing the Reasonableness of Conduct........................................11 Causation: Proximate Cause (PC)..........................................................................13 Contributory Negligence; Intervening Cause.........................................................14 Res Ipsa Loquitur; Strict Product Liability..............................................................17 Product liability......................................................................................................18 Land Owner...........................................................................................................20 Vicarious Liability; ................................................................................................ 21 Statutes of Limitations.........................................................................24 Damage...............................................................................................24 Defamation..........................................................................................26 Intentional Infliction of Emotional Distress............................................27 Negligently Cause Emotional Distress....................................................28 Invasion of Privacy...............................................................................29 False Light...........................................................................................29 Fraud...................................................................................................29 Tortious Interference with Contract.......................................................31 Appendix ............................................................................................32

Intentional Torts
Battery & Assault
Battery
1. Definition: Intentional infliction of a harmful or offensive bodily contact upon a person (Garratt v. Dailey) Or the imminent apprehension of such a contact 2. Elements of Battery A. Touching (or Contact) a) Contact must be unlawful and unconsented b) It could be P is touched by a third party or a thing, for example, a ground. (Garratt v. Dailey) c) D must know with substantial certainty that the act will cause contact (Garratt v. Dailey) d) Actual physical contact is not necessary I. Can be contact with Ps clothing or an object connected with Ps body (Fisher v. Carrousel Motor Hotel Inc.) e) Injury from the touching is not required (Example: D spitting on P) B. Intent a) Intent to cause contact or imminent apprehension b) D voluntarily acts for the purpose of inflicting a harmful or offensive contact on P or with knowledge that the contact is substantially certain to result. i. It is not required that D knows that the contact is substantially certain to result with P, it is sufficient that D know that the contact is substantially certain to result with someone. Example: D throw a bottle into a crowded party room. c) Intent to cause harm is not required (Lambertson v. United States) d) Intent to commit an assault e) If the intended act is unlawful, the intention is also unlawful (Vosburg v. Putney) C. Harmful (or Offensive) a) Whether a contact is harmful or offensive is determined based on what a reasonable person in Ps circumstances thinks, not based on what D thinks whether the contact is offensive. b) An intent could be good, but nonetheless harmful c) Motivation is irrelevant (e.g., doctor saving a patient) D. Consent a) Acts are offensive if without consent. If there is consent, then the act is inoffensive (no battery).
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c) A consented-to contact is an affirmative defense E. Not privilege a) E.g., self-defense F. Imminent apprehension a) Apprehension of future contact does not support tort liability b) Imminent does not mean immediate, but means there is no significant delay c) Apprehension is the anticipation of a battery d) Fear on the part of P is not required for apprehension (or battery) e.g., A intended to hit a boxing champion, but missed. 4. The intent is not necessarily malicious (motivation is irrelevant) 6. P needs not be aware (Distinguished from assault) Example: D touching P while P is sleeping 7. Damage A. D is liable for all of the consequence of the intentional contact whether foreseeable or not, if Ds act sets in motion a chain of causation. B. P has the burden to prove the causation. (Vosburg v. Putney) a). P can recover for emotional distress b). Even if there is no harm, P can recover for nominal damage c). If the tort is willful (intent to cause harm),the actor is liable for punitive damage 9. Technical battery - for health care professionals

Assault
1. Definition: an act putting another person in reasonable apprehension of an imminent harmful or offensive contact (i.e., imminent battery) 2. Elements of Assault A. Reasonable a) Average reasonable person test - a reasonable person acting reasonably would have been apprehensive of a battery. (Bouton v. Allstate Insurance Co.) B. Apprehension of contact a) Apprehension that personal sovereignty gets violated b) Fear is not required to satisfy apprehension c) P must be aware of the imminent contact (unconscious person cannot be aware of imminent contact) C. Imminent D. Harmful or Offensive E. Intent a) Intent to make contact
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b) Intent to cause apprehension I. D does not necessarily intend to act or follow through II. P does not necessarily have to fear c) D does not necessarily intent to harm P Example: D pointing a toy pistol at P, where P thought it was a real gun F. Consent G. Privilege 3. Word alone cannot constitute assault unless combined with other acts or circumstances that put the other in reasonable apprehension of an imminent harmful or offensive contact with that person. (Conley v. Doe) 4. Actual apprehension is required for assault A. If P has no apprehension, then no assault - unsuccessful plank or joke B. A successful plank may constitute assault, if it causes apprehension to P.

False imprisonment
1. Definition: Intentional infliction of a confinement 2. P must know of the confinement - unconscious P cannot sue for false imprisonment 3. Elements of false imprisonment A. Act with intent to confine or restrain a) The restrain may be by means of physical barriers (Example, within U.S.), or b) by threats of force which intimidate the plaintiff into compliance with orders (Dupler v. Seubert) B. Confinement within closed boundaries - confinement must be inclusion not exclusion C. Knowledge by person confined

Trespass
Trespass to Land
1. Definition: A physical intrusion upon the property of another without the proper permission from the person legally entitled to possession of that real estate. 2. Modern trespass requires intent 3. Actual harm is not required to establish trespass for physical entry 4. Intangible entry A. Requires actual damage to the property (Public Service Company of Colorado) 5. Unlawful or unauthorized entry is required 6. Mistake is NOT a defense in Trespass Cases

7. Trespass may result from being invited on to property but then abusing and overstaying welcome 8. Difference btw Nuisance and Trespass a. Nuisance protecting the interest in the use and enjoyment of property b. Trespass protecting the exclusive possession of property

Trespass to Chattels
1. Definition: Trespass to personal property is the intentional use or interference with a chattel which is in the possession of another, without justification (Texas-New Mexico Pipeline) 2. Intent: Trespass requires act with the purpose of interfering with the chattel or with knowledge that a disturbance thereof is substantially certain to occur (Texas-New Mexico Pipeline)

Defenses to Intentional Torts


1. Definition: If P consents to an intentional interference or contact, then no intentional torts A. Consent can be expressed or implied B. Consent can be inferred 2. Implied consent is very narrow - only allows P to take reasonable measure in light of the circumstances. (Mohr v. Williams) 3. Medical Arena (Mohr v. Williams) A. Good intention is not an effective defense B. Damage. a) Actual damage b) Nominal damage if no actual damage resulted - the difference between surgery and no surgery c) Good intention will be taken into account when awarding damages C. Emergency constitutes implied consent D. Technical battery if no harm suffered 4. Consent in sports: A. D is liable if intent to break the rule and cause the harm (Marchetti v. Kalish) B. P assumes ordinary risks of the activity and cannot recover unless D acts recklessly or intentionally C. Policy - encourage free & vigorous participation and prevent lawsuit involving backyard games. 5. Consent in other arenas: Consent to illegal act is not an effective defense - dueling (Teolis v. Moscatelli) A. Policy - encourage disputing parts to go to courts to obtain remedy B. Courts penalize those who bypass the legal remedy and take law into own hands 6. Privilege must be reasonable (TWEN case: Haworth v. Elloitt) A. The actor is privileged to apply only such force as reasonable man under the circumstances would believe to be necessary to prevent a further disturbance of the peace

Consent as Defense: Privileges

Necessity as Defense
1. General rule: It is necessary for D to harm P in order to prevent great harm to third persons or to D him/herself 2.Private necessity: Circumstances justify an unauthorized entry on the land of another in order to preserve life or property A. D must pay for Ps cause damage if any, but no punitive damage (Vincent v. Lake Erie Transp. Co.) In general, either the dock owner will be building less nice docks, or the ship owner will sail less. But once the ship sails, the ship owners behavior will not change regardless
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of what the rule is (will always sacrifice Ps property to prevent Ds own lost). C. Necessity must be sufficient - Whether D has an imminent threat. (London Borough of Southwark v. Williams) 3. Public necessity (Surocco v. Geary and Wegner v. Milwaukee Mutual Insurance Co.): A. U.S. jurisdiction system has Irreconcilable conflict between Surocco and Wegner a). Ds damage is not compensable (Surocco v. Geary) b). acknowledges the right to property under 5th amendment and require compensation of the owners lost for property taken for public use or benefit (Wegner v. Milwaukee Mutual Insurance Co.). 4. Distinction between taking and public necessity A. Taking generally planned action by government; owner of property should be compensated B. Public Necessity - generally unplanned and in emergency circumstances; no compensation for owner

Negligence
Components of Negligence
Duty Breach of Duty Causation Damage Defense

Duty of Care

1. neighbor principle: persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question. (Donoghue v. Stevenson) 2. Product liability: The manufacturer owes a duty to a consumer if the product is not subject to intermediate examination. If the product is subject to intermediate examination, then whoever responsible for the intermediate examination is liable. 3. 3rd Party to utility contract cannot sue utility companies (unless it appears contract was so intended)

Exception to Duty: Duty to Rescue and Duty to Control Others


1. Even if see someone in peril, there is no legal duty to help; moral obligation irrelevant (Yania v. Bigan) Arguments for no legal duty: a). Moral hazard #1: If P knew that D has a duty to rescue him, he would be risking his life more often and has an incentive to do less than what a reasonable person would do. In so deciding, the court deters P from doing stupid things. b). Moral hazard #2: Even if the rule requires the P to involuntarily fall into danger, it is difficult for the D to know whether the P is voluntary or not. Imposing a duty on the D would still create an incentive for the P to voluntarily jump into the ditch in order to have the D pay for the damage. c). Example: starving children in Africa. We dont have a legal duty to donate money to rescue those children even the cost of donation is relatively low. 2. Once a person engages in the act of rescuing others, then the person has a duty to do it right, or he would be guilty of negligence. (A relationship is created so that the person has a duty) A. if you take action to attempt to help/rescue, you have a duty to finish the rescue. B. Rationale: in attempt to help could make things worse or

deter others from helping or crowd out a competent rescuer to come help the victim. 3. Exception: Remedy for avoiding people to do nothing in face of emergency: A. For certain persons having special relationship with the D, imposing the duty Examples: Common carriers, innkeepers, storekeepers, employers B. Good Samaritan status: NO liability if rendering emergency care in good faith, even if not effective, so long as not grossly negligent. 4. In medical case: Duty is judged on the SPECIAL RELATIONSHIP between the doctor and the patient (Tarasoff v. The Regents of the University of California) A. The doctor-patient confidentiality is to be scarified to save the greater good (i.e., the patients life.) B. What is wrong with the doctor informing the insurance company about a patients genetic predisposition of a cancer? a). Breaching the confidentiality between doctors and patients. b). What is wrong with not enforcing this confidentiality? People is not going to the doctors to find out their genetic information and more people will die. c). No such problem if the doctor informing the patients family, because it wouldnt discourage people from seeing the doctor. 5. Entrustor where entrustor of a chattel or $ to buy a chattel knew or should have known some reason (youth, inexperience, or otherwise) while entrusting the item or $ to another was foolish or negligent, there is a duty created to all 3rd party victims A. The issue is where to break the chain of causation, or who on the chain of causation should be held liable - foreseeability. (Vince v. Wilson) B. Key is KNOWLEDGE knew or should have known b/c foolish or negligent: a). Knowledge of Drug/Alcohol Abuse & giving $ for a car, dealer knew of bad driving record (Vince v. Wilson). b). Car dealers dont have duty to inquire; only liable if they knew anyway.

Reasonable Person
1. The basic problem of all negligence: Objective Standard of a Reasonable Person rather than any Subjective Individualism A. Would a reasonable person of ordinary prudence, in the Ds position, do as D did? The D does not escape liability merely because she intended to behave carefully or thought she was
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behaving carefully. B. It is impossible to construct a reasonable person with all of Ds characteristic and the jury wouldnt be able to project such a reasonable person with super precision. C. General: Negligence should not be coextensive with the judgment of each individual a). How stupid someone is irrelevant! Always apply the reasonable person standard. b). An argument that the D lacked ordinary intelligence failed and court applied a standard of reasonable person instead (Vaughan v. Menlove). D. Physical and mental characteristics: If D has a physical disability, the standard for negligence is what a reasonable person with that physical disability would have done (Roberts v. State of Louisiana). E. Children a). In general, a child is help to the level of conduct of a reasonable person of that age and experience b). When a child engages in a potentially dangerous activity normally pursued only by adults, he will be held to the standard of care that a reasonable adult doing that activity would exercise. F. By playing the factors of a reasonable person, the court can change the standard in each case and thereby selectively encouraging or deterring certain conduct. a). In Roberts v. State of Louisiana, why didnt the court impose more stringent standard? - Because it would result in less conduct, not necessarily more careful conduct b). In Robinson v. Linsay, imposing the same reasonable person on minor, because it would lead to less and also more careful conduct. G. Reasonable Person standard is not based on individual training a). Particular Training or Experience of Professional is Irrelevant i. If the training is specific to the person or is individualized, then the training is not part of the reasonable person standard ii. In Robert, the D received a training that is generally required for every blind person to operate the stand, it is therefore part of the standard. Policy - holding D liable would discourage the state employer to hire blind persona and therefore would encourage discrimination. b). Airplane pilots are held to minimum standard of care applicable to all pilots = reasonably prudent pilot
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c). Exception: medical industry (highly specialized areas) Because medical industry are highly specialized whereas most other industries are generalized, there are more individualization in reasonable person in medical industry while the reasonable person standard are rather uniform in other areas, e.g., pilot, lawyer, truck driver

Negligence: Assessing the Reasonableness of Conduct


1. Custom: Custom of an industrial is relevant but it is not dispositive. A. Evidence by D: a). D shows that everyone else in the industry does things the way D did. The jury is still free to conclude that the industry custom is unreasonably dangerous and thus negligent. (T.J. Hooper) b). Example: D can be liable if the custom is stupid (i.e., bleeding the patient in medical industry). B. Evidence by P: a). P shows that others in Ds industry followed a certain precaution that D did not, will be suggestive but not conclusive evidence that D was negligent. b). If a doctor use innovative technique which is not supported by industrial custom and the patient die. The doctor is difficult to defense against negligence. c). This policy limit the patients options 2. Statutory Violation Causing Damage - D liable for negligence only if the conduct violate the statue and results in damage that the statue is designed to prevent

The Hand Formula


1. Whether B < PL [B=cost of burden; P=probability of accident; L=cost of injury] A. If the cost of taking precaution is less than the cost of the lost, then D has a duty to take the precaution. (U.S. v. Carroll Towing Co.) B. Essentially: Cost of precaution < Benefit of precaution D is liable 2. B and PL are calculated at margin: for every extra measurement designed to lower the possibility of harm, is B<PL? 3. Grimshaw v. Ford Motor Co. - Ford is gambling ones life v. one is gaming his own life.

Causation: Cause-in-Fact

1. Generally: P must show that Ds conduct was the cause in fact of Ps injury
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2. But for test: But for Ds conduct, Ps injury would not have resulted - P must show that it is more probable than not that P would not have been injured but for the defendants negligence 3. Joint torfeasors: There can be multiple but for causes of an event (Richardson v. Richardon-Merrell, Inc. ). If P proves that there is a 51% of chance that the drug can cause birth defect, then P win. If P prove that there is a 49% of chance, then P lose 4. Liability for reduced chance (Falcon v. Memorial Hospital) A. Ds tortious conduct does not cause Ps harm in a but for sense, but merely reduces Ps chances at a favorable outcome B. Redefined the concept of lost: D is liable for increasing the probability of death if P proves more probable than not D decreased the Ps opportunity of survival. D. Downside of the decision: Asymmetric Damage a). usually: 51% patients survive; for incompetent surgeon: 48% patients survive; 52% die and sue and win. By the surgeon only causes extra 3% of deaths, so only 3% should have been compensated. 5. Failure to Identify the Specific Actor A. Joint Tortfeasors when multiple Ds act negligently, but the specific CIF is unknown, courts may impose joint & several liability. a). Joint & Several Liability each D is held liable for the entire amount of the P injuries; it is up to Ds to apportion the actual payout among the them b). Court shifts the burden of proof of non-negligence to the Ds. B. Often is awarded when there is a single indivisible injury w/ an unknown specific cause a). Shooting Accidents when two people both shoot at a 3rd, both are negligent regardless which one actually hit the P and caused the injuries; each D can prove out that he did not cause the injury and therefore is not liable (Summers v. Tice) b). Market Share Theory of Products Liability (Hymowitz v. Eli Lilly & Co.) i). If P cannot prove which of the multiple companies caused the injuries, but can show that all produced a defective product, the court will require each of the Ds to pay that percentage of Ps injuries which that Ds sales bore to the total market sales of the that type of product at the time of the injury ii). Use the national market to determine the market share to get a plat rule, but Ds have incentive to pick the market with the most maker so that they has the smallest share.
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iii). P will not recover entire amount of damages because all possible Ds will not be joined. iv). The court does not allow prove-out, even a D did not sell the drug to P, D still need to pay for the portion of the damage. Eliminate the incentive for D to prove out, which can potentially increase social costs. C. Multiple Causes (concurrent causes) - substantial factor test A. When two events concur to cause harm, and either one would have been sufficient to cause substantially the same harm without the other, EACH of the concurring events is deemed a cause in fact of the injury since it would have been sufficient to bring the injury about. a). If Ds Railroad caused-a-fire that merged with another already existing, naturally caused fire, both fires are substantial factors and thus cause-in-fact of any resulting damages (Anderson v. Minneapolis)

Causation: Proximate Cause (PC)


1. Generally after a P has shown that D was CIF of Ps injuries, P must show that D was the Proximate Cause (PC) of those injuries. The PC requirement is a policy determination that a D, even one who behaved negligently, should not automatically be liable for all consequences, no matter how improbable or far-reaching, of his act. 2. Foreseeability i) Generally - D is liable only for those consequences of his negligence which were reasonably foreseeable at the time of Ds act. ii) Requires foresee some damage; Otherwise no negligence the fact that the damage it causes is not the exact kind of damage one would expect is immaterial, so long as the damage is in fact directly traceable to the negligent act. iii) A high level of forseeability (Kinsman Transit Co.) a. One should be liable for a large risk of small damage AND a small risk of large damage, of the same general sort, from the same forces, and to the same class of person b. The D owed a duty to all potential Ps w/in the ships destructive power; even though specific P was unknown and the exact development was unforeseeable c. Different level of details leads to different results (conclusions) of foreseeability (i.e., proximate cause). Court generally keep the frame of the foreseeability questions at a relatively high level (damage of same general sort) iv) Exception Rule: once P suffers any foreseeable impact or injury, no matter how slight, D is liable for any additional unforeseen physical consequences
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a. Ex: car crash that produced no physical injuries but

exacerbated a mental condition, D liable (Barolone v. Jeckovich). b. A defendant must take a plaintiff as he finds him and hence may be held liable in damages for aggravation of a preexisting illness. v) D is liable for all damages that are reasonably foreseeable at time of action a. Wagon Mound 1 - D not liable for oil spill that destroyed Ps wharf b/c no reasonable person could foresee that the damages would result from the actions of the D b. Wagon Mound 2 - D is liable for oil spill which destroyed Ps vessel b/c the damage was foreseeable to a reasonable chief engineer; there was foreseeable small risk (i.e. even if only small risk foreseen, still liable) c. Caveat: If the consequence was very much foreseeable, then D would argue that the consequence is clearly foreseeable, and D is indeed negligent. But D would also argue that so is P (contributory negligent). vi) Foreseeable Plaintiff - D is not liable for injury to an unforeseen plaintiff (Palsgraf v. Long Island RR) a. Holding - since Ds conduct did not involve an unreasonable risk of harm to P, and the damage to her was unforeseeable, Ds conduct was not the PC of Ps injuries thus no recovery b. Duty and Negligence are correlative i. D cant owe a duty to an unforeseen P ii. D does not owe a duty of care to P to prevent P from unforeseeable harm. (i.e., D only has duty to P to prevent P from foreseeable harm)

Contributory Negligence; Intervening Cause


1. Where a D creates a foreseeable & unreasonable risk of danger to a foreseeable class of Ps, intervening cause will not cut of Ps liability (Weirum v. RKO General) 2. Malice v. Negligence - Ds are not required to anticipate the intentionally malicious acts of others but are required to assume the negligent acts of other parties (Watson v. KY & IN RR) i) If intervening cause is malicious, not foreseeable; if negligence, foreseeable ii) The court play with the level of generality or specificity to deter certain acts -How to generalize the foreseeability question depends on whether the 3rd party has intent iii) Marginal benefit of deterring certain act by holding Duerr liable a. If Duerr acts unintentionally-Marginal benefit very high because many people like Duerr would unintentionally light up gasoline
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b. If Duerr act intentionally - The marginal benefit is low because not many people would intentionally light up gasoline iv) Deter certain act depends on holding how liable a. If Duerr act unintentionally, the railroad is important here because even if Duerr did not light up the gasoline, someone else would do it b. If Duerr wanted to burn down the city, then Duerr is more important because even Duerr did not light up the gasoline, he could also find some way to destroy the city 3. Foreseeable Criminal Acts where a criminal act is foreseeable, liability will not be severed (Braun v. Soldier of Fortune Magazine) 4. Social Host Liability a host that serves liquor to a guest, knowing both that the guest is intoxicated and will thereafter be operating a motor vehicle, is liable for injuries inflicted on a 3rd party as a result of the negligent operation of a motor vehicle by the guest when such negligence is caused by the intoxication (Kelly v. Gwinnell) i) Why suing the driver as well as host - Because the court wanted to deter both the driver and host ii) The allocation of liability to both or to only one of them depends on who is at the best position to avoid the consequence a. Reasons for holding the Social host responsible - Encouraging the host to get insurance 5. Contributory negligence based on Hand formula i) Hand formula calculated at margin.

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Strict Liability (Absolute Liability)


1. Distinction from negligence: A. Negligence indicate some degree of culpability or responsibility B. Strict liability does not require either culpability or responsibility 2. Definition A. Liability without requiring proving that D is acting unreasonably, negligently, or unlawfully B. Historical (traditional) strict liability: a. Wild or other dangerous animals b. Ultra dangerous activities c. Product liability 3. Strict liability only provide up to a limit (the maximum damage caused by the act, PL) of precautions (B). Any precaution beyond that is not guarantee. 4. The strict liability assigns an responsibility to D with or without negligence. a. Disadvantage: Moral hazard - P can be contributory negligence but be free from liability. (Because D is strictly liable) b. Advantage: Cause D to change activity level to the socially optimal level 5. Wild or other dangerous animals (Filburn v. The peoples palace and aquarium company) A. Separating the animals into categories and making the decision base on he categories. a). Categories of animals - Always dangerous - Could be dangerous - Never dangerous b). Unsafe category - NO need to ask if the owner knows it is dangerous and the owner is strictly liable; c). Safe category - need to ask if the owner knows the animal is dangerous. If the animal is not dangerous by nature, the keeper must have a reason to know that it is dangerous in order to establish negligence (Marshall v. Ranne). B. Hypo - P keeps a lion in his backyard and the lion is very important and value to him. Does strict liability still make sense? a. The act of keeping the lion is inherently dangerous. The benefit of keeping it is almost always outweighed by the probably lose caused by the lion 6. Ultra Hazardous Activities (Fletcher v. Rylands) A. If it a non-natural use of the land, then D is liable for all the damage it caused. If the reservoir is a nature use of the land, then D is not liable.
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i). If a naturally occurring lake on property floods, no liability; if you damn up a river and it floods is strictly liable for all resulting damages ii). Natural is not exactly non-artificial (non-man-made): Swimming pool example iii). Natural use should mean: ordinary/common use of the land 7. Policy Supersedes Strict Liability if the activity is related to a vital activity of the surrounding area, no liability (Turner v. Gig Lake Oil Co.) 8. Storage of explosive materials (Yukon Equipment Inc. v. Firemans Fund Insurance Co.) A. Rejects the Restatement Factors b/c too much like negligence and instead relies on precedent stating that if you store explosives you are strictly liable E. D knows the explosives is dangerous and he created the risk of explosion, and therefore it is liable. 9. Allow assumption of risk defense (Marshall v. Ranne). - P did not assume the risk because he had no reasonable choice - P did not assume the risk of being attached on his own property

Res Ipsa Loquitur; Strict Product Liability


1. Elements of Res Ipsa Loquitur - The accident is attributable to D (D has exclusive control, not P) - The injury not something that ordinarily occurs without negligence (injury happened someone was negligent) 2. RIL skips right by proximate causation because it is unknown what caused the injury. 3. Logical elimination process underlying Res Ipsa Loquitur (Escola v. Coca-Cola Bottling Co.) A. It is more probable that Ds act causes the loss than freak chance; or B. Between holding D liable and choosing freak chance, it is more reasonable to hold D liable and allow D to prove himself out - better incentive than the alternative. C. Concurring opinion: Even without negligence, it is better to have the manufacturer to pay for the damage when the injury occurs and distribute the costs among the public as a cost of doing business. 4. Medical malpractice (Ybarra v. Spangard) a. Lump all Ds together because it is difficult for P to prove the loss was caused by one of them as P was unconscious. b. Policy reasons: P should get recover. The profession should bear the loss. Give each D a chance to prove it out. c. Difference between court and P: The level of generality applied to the circumstance (P. 262)
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P: Does something rarely happen? Court: When something happens, is it ordinarily the result of negligence?

Product liability
1. Definition: A seller of a product which, because of a defect, causes injury to a consumer. The P can be the purchaser or a user who has no contractual relationship with the seller. 2. Three theories: - Negligence - Warranty (contract theory) - Strict product liability (a combination of strict liability and negligence.) 3. General product liability claims: A. Manufacturing defect: Something is wrong with a particular article, which is different from other articles in the same product line (Escola v. Coca-Cola) B. Design defect: The line of products are all bad due to the design problem. The product is unreasonably dangerous for its intended use. (Phillips v. Kimwood Machine Co.) C. Failure to warn: The design is by and large on the whole fine, but the design is dangerous if it can be predicted that it will be misused. Or the product will be foreseeablely misused. (Phillips v. Kimwood Machine Co.) 4. Manufacturing defect (Escola v. Coca-cola) 5. Design defect (Phillips v. Kimwood Machine Co.) A. Ferrari example: Should manufacturer be held liable for producing Ferrari that goes over 300 miles per hour? - No, because the consumer expect that Ferrari is dangerous, and the product is no more dangerous than the level that consumers expect. B. Courts reasoning: a. A reasonable seller will not sell a product that a reasonable seller knows or should have known that the product is unreasonable dangerous b. Why the reasonable seller standard - Because consumers are not completely rational and sometimes dumb. Therefore, consumers will sometimes make unreasonable choices. C. Holding

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- The manufacturer should have provided a warning - The cost of putting up a warning is practically nonexistence while the possible injury is relatively high (B<PL) D. Distinction between negligent and strict liability - Negligent: Focusing on the manufacturers conduct - Strict liability: Focus on the product itself: whether the product is unreasonably dangerous E. The seller were entirely reasonable in selling the product without a warning considering what he knew or should have known at the time of the sale. However, the product is dangerous without the warning. F. How to prove the design is defected (Barker v. Lull Engineering Co.) i. A balance between negligence and strict liability: Two tests: a). reasonable consumer test: the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner; or b). alternative design test: The designs dangers outweigh its utility (B<PL) ii. The court did not want to use unreasonably dangerous and gauge the danger from reasonable consumers perspective because the consumers are dumb and using unreasonably dangerous standard makes things more complicated. ii. On the other hand, the court did not want to be paternalistic and telling the consumer what should or should not have by imposing the unreasonably dangerous standard. 6. Failure to warn (Vassallo v. Baxter Healthcare Corp.) A. The seller only needs to warn something that he found or could have found out B. Sellers have to tell the consumers the risk even if the sellers dont know but could have known about it (e.g., by way of testing). C. There is no difference in activity level between charging D negligent or strictly liable D. A manufacturer also has a duty to perform reasonable testing prior to marketing a product and to discover risks and risk avoidance measures that testing would reveal. 7. Privity requirement (Henningsen v. Bloomfield Motors, Inc.) A. Normally, only the contracting party can sue the other party B. Court: Relax the privity requirement specifically for the purchasing case - the member of the household could sue for product liability
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C. In product liability a. in generally, sue both the manufacturer and the dealer b. sue strict liability, negligence, failure to warn, and breach of implied warranty at the same time

Land Owner
1. General definitions of trespasser, invitee and licensee and distinction between invitee and licensee (Rowland v. Christian). A. Abandoning the traditional rules differentiating invitee and licensee B. New rule: where the occupier of land is aware of a concealed condition involving in the absence of precautions an unreasonable risk of harm to those coming in contact with it and is aware that a person on the premises is about to come in contact with it, failure to warn or to repair the condition constitute negligence. The status of the guest does not change the duty of the host owed to the guest. a. Essentially, the court uses the rule of negligence to evaluate the landowners conduct and require the high degree of care b. The court encourages people to take more care by imposing high degree of care onto land owners just like everyone is invitee (the highest degree of care among the three categories): C. Problem: will impose too high a cost on land owners because they have to take high degree of care all the time. - Effects of the new rule - The land owner will change their behavior according to the hand formula B<PL - For places where invitee/licensee usually visit (supermarket), the landowner will take high degree of care because of private interest (damage and reputation): high P and high L. . On the other hand, trespassers are few, because most visitors are not trespassers: low P and low L. - For places where trespasser usually enter (back of the store), the landowner will take less degree of care because the possibility of accident is low. D. Black letter: - States are evenly divided between the traditional approach and the negligent approach - Even for those states that switch to negligent approach, they still use traditional approach for trespassers. 2. Nature event occurs outside the land (Sprecher v. Adamson Cos.)
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A. Traditional common law rule: for natural event occurs outside the land, the landowner has no duty. B. New rule: The land owner has a duty with regard to natural conditions of land 3. Trespasser exception (Crawford v. Pacific Western Mobile Estates, Inc.) - The landowner isnt liable for trespassers for the danger on the land unless the trespasser is a child - Definition of attractive nuisance: landowners only liable for damage caused by artificial attractions 4. Taco Bell v. Lannon A. The robber did not break the chain of causation B. The precautions should be taken by the land owner C. Holding: cost of precaution is low, social utility of not taking precautions is usually outweighed by the risk (B<PL).

Vicarious Liability;
1. General Rule: An employer is liable for an employees negligence if the employee is acting within the scope of the employment. 2. Acting in the scope of employment (Estes v. Comstock Homebuilding Companies, Inc. (TWEN case)) - Conducts that directly further the employers benefit - Conducts that are incidental to the employers business A. The employer has a right to indemnify the employee (collect the money) after paying for the judgment. B. If an employee is negligent while acting in the course of employment and such negligence is the proximate cause of injury to another, the employer is liable in damages under the doctrine of respondeat superior, notwithstanding the fact that the employer, himself, exercised due care in the supervision and direction of the employee, the employee's violation of instructions being no defense to the employer. 3. Restatement tests (OToole v. Carr): 1. The kind of work employed to perform 2. Space and time limits 3. Purpose to benefit the employer 4. Court relied on a general rule that commuting to and from work is not a part of the employment relationship - The justification for the rule - The employer lacks direct control on and interest in the employees conduct with respect how to get to and from the work (e.g., the method of commuting).

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Joint and Several Liability


1. Joint and several liability: P can collect the entire damage from any one of the Ds. And one of the D can sue the other D later to recover (Walt Disney World v. Wood). 2. Contributory liability: P has to collect the portioned damage from each of the Ds. 3. Joint and several liability regime save P leg works because P can collect the entire damage from any of the Ds. A. Problem with joint and several liability in this case - Logical tension between contributory negligence and joint and several liability: i). If we cannot reasonably allocate the damage between Ds, then how can we allocate the damage between P and D. ii). If we can reasonably allocate the damage between P and , then we should be able to reasonably allocate liability between Ds. B. Difference in applying contributory negligence rule. - In some states, joint and several liability is used only when D is at fault more than P (50% rule)

Contributory negligence; Assumption of risk


1. Two tests A. Ordinary consumer expectation: Three reasons for a consumer to buy a product: i). Because they like the design ii). They are misinformed about the product iii). consumers are dumb B. Risk/utility balance - Producers are required to prove that the product is safe in order to show no liability. 2. Requirements for Assumption of Risk i). Actual or Constructive Knowledge of specific Risks ii). Voluntary Assumption of the Risk iii). Appreciation of the Character of the Risk 3. In comparative negligence, assumption of risk can still completely bar recovery. However, if P has no meaningful alternative, P still get recover. 4. In most states, courts has done away with voluntary assumption of risk. If the assumption of risk is reasonable, then P gets recovered; if the assumption of risk is unreasonable, P does not get recovered. (Marshall v. Ranne). i). P did not assume the risk because he had no reasonable choice ii). P did not assume the risk of being attached on his own property 5. Actual and constructive knowledge (Goepfert v. Filler)
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A. Actual knowledge: hard to determine that P has actual knowledge of something B. Constructive knowledge: by looking at the circumstance and it seems to be obvious to say that the P knows the risk a). factor 1: Is there breach of duty on Ds part? - If there is no breach of duty, then voluntary assumption of risk is useless (primary assumption of risk is useless) - the claim of voluntary assumption of risk predicates on breach of duty b). Factor 2: The degree of specificity that P can foresee the risk. - specificity (specific risk): Not only that the injury will result, but also how it would result and in what way it would result. - How many different kinds of bad outcomes? - The degree of concreteness of what would happen C. Proximate causation - Foreseeability: Did the D foresee that his negligent driving will cause the injury to the P? Probably yes, therefore the hospitals act is not a superseding cause. 6. In general, P only assumed risks inherent to the activity , but not Ds future negligence, even if he Risk is divided into two parts (Ray v. Downes). Risk has two parts: 1) risk inherent in the activity; 2) the risk created by Ds negligence. 7. Difficulty in distinguishing generic knowledge from the knowledge about a specific risk (a full appreciation of a character of the risk) Example: A had a coin toss with B, does B voluntarily consent to losing money to A? i. When A uses a fair coin (B has generic knowledge about losing money in a fair bet) ii. When A uses a bias coin (B has not yet appreciate the character of the coin toss)

Voluntary Assumption of Risk in the Context of Strict Product Liability


1. Contributory negligence is not a complete defense to strict product liability (McCown v. International Harvester Co.): Potential problem: moral hazard A. Courts response to the moral hazard problem caused by strict liability - The judge assumes that consumers are stupid and cant help themselves, so they need to be protected. Therefore, enforcing strict liability would not cause moral hazard problem.
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B. Consumers behavior- reasons to buy a product i). They like a design: judge does not believe so and shift the burden on the producer to prove that the design is good. ii). They are misinformed: taken care of by falling below consumer expectation standard. iii). They are irrational: judge assume this is true, so enforcing strict liability would not cause moral hazard problem. 2. Comparative negligence reduce recovery (Daly v. General Motor Corp.) 3. majority of jurisdiction has done away with assumption of risk, for these jurisdictions, judges need to play with duty/breach/causation 4. For those jurisdictions still applying contributory negligence, assumption of risk is still an effective defense to negligence or strict liability.

Statutes of Limitations
1. Statues of limitations is a procedure defense 2. The theoretical time when P could file a suit (all of the elements of the suit are available) 3. If D poisoned P using a slow poison, when could P sue for battery: When D introduced the poison into Ps body without consent 4. Modern life has many delayed factors, so that P did not know the injury until long time later . Discovery rule: time starts running at time P discovered the injury 5. Under traditional rule, P would be barred from suit 6. What does injury mean in this case - consuming substance that does harm to Ps body by increasing the possibility of developing cancer, does not mean cancer itself

Damage
1. Damage to property - Example: If I bought a Dell laptop and it exploded on itself, it is not recoverable for economic damage. It can be recoverable only if something other than the laptop (e.g., a cup nearly) is damaged by the explosion. 2. Limitation of liability (People Express Airlines v. Consolidated Rail Corp.) A. Foreseeability is a little problematic: The line could be arbitrary and there could be an unlimited chain of after effects that tend to impose unlimited liability B. An identifiable class:

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D owes a duty of care to take reasonable measures to avoid the risk of causing economic damages, aside from physical injury, to particular Ps comprising an identifiable class with respect to whom defendant knows or has reason to know are likely to suffer such damages from its conduct. C. Without pure economic loss rule, how would the plaintiff argue proximate cause in order to prevail in a negligent case: i. The plaintiff would have to define the foreseeable class of person in which plaintiff would fall. Foreseeable in terms of: a). The type of persons or entities b). The certainty or predictability of their presence c). The approximate number of persons d). The type of economic expectations disrupted. ii. One example: define the foreseeable class based on the area within a certain radium of the fire. D. Pure economic loss rule has some arbitrary element in it. E. Not all sate have the same rule of pure economic loss, the question is what do we do with the rule. How many exceptions that need to be invented to get around the rule. 3. Problem with compensatory damage - If compensation is too low, it gives D too little incentive to take precaution - If compensation is too high (higher than the actual damage PL), then D would take too much precaution. 4. Pain and suffering damage (Seffert v. Los Angeles Transit Lines) A. Quantification of pain and suffering: How much people are willing to pay to avoid pain and suffering - Per Diem, per day wage to bear the pain B. It is possible to quantify pain and suffering - by way of survey - paying enough money would eventually induce people to voluntarily bear the pain and suffering - The variant of the number is huge - judges and legislator hate it. 5. Punitive Damage (BMW v. Gore): Not attempt to compensate the P, assuming P has been fully compensated A. Justification for punitive damage: Reason 1: The law of economic The Ds conduct injures not only the P in this case, but also other people. The punitive damage is awarded to compensate these unclaimed torts. Reason 2: The D has done something wrong. The punitive damage is awarded to punish the D. Example: Theft B. Three Part Analysis to Determine Whether Punitive was Excessive 1. Degree of Reprehensibility of Ds conduct
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Economic Damage or Personal Harm? Criminal actions? Etc. 2. Ratio btw Punitive Damages to Compensatory Damages reasonable relationship to compensatory 4:1 ok but 500:1 is not; usually only single digits are ok 3. Sanctions of other Law Look at civil & criminal sanctions for the activities

Defamation
1. Definition of libel and slander Libel - Caused by written statements - Does not require pleading of special damage Slander - Caused by written statements - Require pleading of special damages unless falls in per se categories 2. Prima facie case of defamation: - Statement of facts (false statement) - Of and concerning plaintiff - Published (or communicated to someone else other than P): If only passing on a rumor or repeating someone elses statements, the person passing the statement will be liable 3. Special Damages (Matherson v. Marchello) A. Requires very high specificity, particularity, and high degree of quantification to satisfy, very difficult to plead, impossible to quantify B. Exception of special damages - Four per se categories - Criminal conduct - Loathsome Disease - Trade or profession - Unchastely of woman 4. Liable per quate and liable per se - Liable per quod require considering facts not set forth in the publication - Liable per se is apparent from the fact of the publication itself. 5. Under traditional common law rules: P only has to plead a statement is false and it is Ds burden to prove the statement is true. 6 What does the court have to decide: A. Decide if the statement is defamatory as a matter of law (four categories) B. If the statement is ambiguous (does not fall into any of the four categories), then let the jury decide whether the statement is defamatory in the context 7. Two situations in Defamatory statement
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- A statement directed to a class of people in which the P is a member - A statement directed to a fictional person that seems to describe the P but also cause reasonable deniability 8. Fantasy or fictional statement: (Pring v. Penthouse International) Fail the statement of facts test - No reasonable jury, given the context, would think the statement is true (debatable among reasonable minds) 9. Public figure (New York Times v. Sullivan) - For public figure, in order to be liable for libel, the statement must be false and defamatory and made with actual malice. i). Actual malice: with knowledge that the statement is false or with reckless disregard as to whether or not it was true ii). An occasional, trivial false statement is unavoidable during the course of life. If one is held liable for libel for the trivial false statement, then you will likely be liable for any statement. This is contradict with the constitution 10. Defense: A. Under traditional slander rule:it is defamatory per se if the statement is false and D has a good reason to know it is false, B. Defense: D can prove that he has a privilege to make the defamatory statement. 11. Establishing libel case: Hinge on whether the facts are true of not. - If it is true, then no case. - If it is false, then a good case - Next to consider whether P is a public figure

Intentional Infliction of Emotional Distress


1. In general, the P can recover for emotional distress that is attached to other culpable acts. It is undecided whether pure emotional distress is actionable against D. 2. Element of intentional causing emotional distress (Harris v. Jones) - Intent - Outrageous - Causation - Severe emotional distress 3. Analysis of elements: i). Intent (foreseeablility): a). Ds conduct may not be intentional or outrageous (objective standard) because D did not intent to cause severe emotional distress. In order words, D did not foresee that P will suffer severe emotional distress. d). intent should be understood as the intent to cause the emotional distress c). The D should be able to foresee that his act will cause severe emotional distress.
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d). Intent is inferred from Ds conduct and circumstances ii). Outrageous (objective standard): - Up to the jury to decide a). Behavior must go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community. b). Behavior may not be merely insulting, profane, abusive, annoying, or even threatening c). Effect of Ps particular sensitivity: The extreme and outrageous conduct may arise from the actors knowledge that the other is peculiarly susceptible to emotional distress due to some physical or mental condition or some peculiarity. The conduct may be held as extreme and outrageous when proceeding in the face of such knowledge, where it would not be so if he didnt know. iii. Severe emotional distress a). The D should suffer severe emotional distress. If the D did not suffer severe emotional distress, even the P has intent and the act is outrageous . b). Severity is tested by the reasonable person standard. 4. Comparison with battery: - Battery: intent to cause contact, no matter how minor it is culpable - Emotional distress: intent to insult the P; but the act is not outrageous - not culpable 5. Public Figure: The scale of outrageous is different for public figure (Hustler Magazine, Inc. v. Jerry Falwell) A. Even if the statement is false, D is not liable without showing actual malice, i.e., with knowledge that the statement is false or with reckless disregard as to whether or not it was true. B. In general, whether the statement is outrageous is within the state law, and the US supreme court do not generally decide on the state law matter

Negligently Cause Emotional Distress


1. Three types - bad news type: a doctor tells a patient the he was going to die, which is untrue, causing the patient emotional distress - The narrower scale: A persons conduct caused P fear or panic, which then cause emotional distress - Spin off the second: A persons conduct caused a third party (bystander) fear or panic, which then cause the third party emotional distress 2. Severe emotional distress: Need a physical manifestation - Severe distress that manifests in physical symptoms 3. Within the zone of danger standard (Quill) - various state by state. 4. Three elements (Thing v. Thing)
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i). Closely related to the victim ii). Have to be at the scene and see it happened iii). suffers serious emotional distress (linked back to the first element) - have to severe beyond what the normal disinterested

Invasion of Privacy
1. Distinction between publication of private facts and intrusion of privacy (Shulman) A. Publication of private facts may be public concern, therefore there is no publication of private fact tort B. The method used to obtain the information may constitute intrusion of privacy C. The court made a conceptual distinction between the method used (breaking the law or not) to gather the news and the publication itself 2. Book about P: the book is about northern migration: within public interest. Using the two people as an important example to tell the story, show the effect of the government policy. It is not equivalent to peering into someones privacy. - Problem of the rule: One can take any story of another person and turn it into a story about the effect of the government policy. 3. Balancing test. The public interest may be outweighed by the injury to the P.

False Light
1. Elements of false light action Publication to large number Places P in false light Highly offensive Actual malice 2. distinction between defamation and intentional portray in a false light (Lake) A. Defamation: the reputation is harmed. Under common law, a D has various privileges to protect against defamation B. False light: The P itself is harmed and mentally distressed 3. The distinction is completely irrelevant as a matter of litigation? A. As a practical matter, there is no distinction in assessing damages for them. B. Very few states adapt false light because it is often undistinguished from defamation: How mentally distress the P suffers almost always depends on how much the reputation is hurt.

Fraud
1. Intentional misrepresentation (fraud) (Bortz v. Noon)
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Elements 1. a material misrepresentation 2. knowledge of falsity or recklessness 3. Intent to induce reliance 4. Actual justifiable reliance - If the P knows Ds words are false, but does it anyway, then it is not fraud, because Ps reliance is not justified. 5. Injury 2. Intentional misrepresentation Fraud with respect to the future expectations: If one makes a statement but did not intent it to be false, and later change his mind, it is not fraud because he has no knowledge of falsity or it is reckless. 3. Negligent Misrepresentation A. Should have known or should have reasonably known of falsity B. Duty - Do not have a duty to tell the buyer the defect that the agent did not know about. Have a duty not to lie about known defects 4. Materiality requirements for intentional and negligent misrepresentations A. Negligent misrepresentation: - materiality requirement is higher. The fact that inadvertently misstating some facts will require the fact must be very important to hold the D liable. B. Intentional misrepresentation - the very fact that one lies about the facts will make the D liable 5. In fraud, P is required to make specific allegation about what is being said by D that injured P ((CAM v. RAW).). 6. Fraudulent conception of a child - When a male sues a female for fraudulent statements in inducing him into conception of a child, the suit almost always fail. - When a female sues a male, she may be successful for getting awards for child support. However, because the female usually gets the custody of the child and the female usually gets monetary damages for child support, whereas she can get some benefit out of the monetary awards, which are supposed to benefit the child only. However, it is difficult for courts to separate the monetary awards to the child from the mother unless the courts take away the mothers right to custody. So, courts almost always awards the plaintiff but not for her injury.

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Tortious Interference with Contract


1. Policy question (Pennzoil Co. v. Texaco, Inc.): What is the problem with Texacos offer? Why is it not ok to bid for an oil company whereas it is ok to bid in an auction? Compare this with a case where A is offering $15000 to buy a car a B came in when the deal was done and offered $16000 to buy the car. B induced a party of the contract to breach the contract. 2. B. Tortiously interference with contract decision is very problematic, so it requires intentional and malicious interference. It seems to capture a very general area of economic activities. So the fact that it requires an existing of a contract seems to limit the problem in this type of cases (Lumley v. Gye). 3. Interference with economic relationship: requires an independent and intentional act which is wrongful (Della Penna v. Toyota Motor Sales).

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Appendix
The problem of social cost 1. Coases reasoning A. There are a lot of but for causes in each accident B. We dont care how the responsibility is allocated initially C. The parties will negotiate and contract before hand to reallocate the damage 2. Cattle and fence example: A. How you allocate the responsibility for building the fence doesnt matter, because the parties will contract themselves to reallocate the damage. B. There is a distribution consequences: Either farmer or the cattle-raiser will be made relatively poorer C. The Transaction cost doesnt have to be zero, it just has to be low enough D. If the transaction cost is too high, then it is difficult to contract to reach the optimal distribution of the damage Justification for comparative and contributory negligence regime 1. Pedestrian-Driver example: An accident involving a motor vehicle and a pedestrian Plaintiff A: Cost of precaution $10 B: Cost of precaution $20 Damage v. $100 Defendant $20 $10

2. What is the traditional common legal rule for allocating damage when an accident happens Situation A: 1. Ps argument: D is negligent in hitting the P (B<PL) 2. Ds defense: But P is also contributorily negligent (B<PL) Situation B: 1. Ps argument: D has a duty to act reasonably and breaches that duty in hitting P and B<PL 2. Ds defense: P is contributorily negligent. One has duty to act reasonably to take care of oneself and P breach that duty. (B<PL) Moral hazard in contributory negligent: 1. It is difficult to see this MH in physical injury 2. But it is easier to see in economic injury 3. In Situation B: P will bear the entire damage if found contributorily negligent. Since D knows P will pay $20 to avoid the damage, he will just drive negligently. P will just pay $20 or stay home to avoid the injury.
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3. Davis v. Con. Rail Corp. P (Davis) v. D (Con. Rail) Cost Blue Flag Blow Horn Damage $100 (Lost if both P and D do not take precaution) Analysis: B<PL is calculated at margin: The difference between damage if precaution is taken and damage if precaution is not taken (for each of P and D) Example: Total damage = $100 If P take precaution: damage = $75 (P = 0.25) PL = 25 (marginal damage) If D take precaution: damage = $25 (P = 0.75) PL = 75 (marginal damage) A. For D: B<PL, Assuming P takes precaution, Then PL is less than initial PL. (PL = The lost if D does not take precaution ($50) - the lost if D takes precaution ($10) = $40) B. The conditional nature of B<PL (condition on the other party takes precaution) C. Even if P or D takes precaution, and the other party does not, P bear the entire damage because P contributory negligent (justified by B<PL for P: $10<$25) 4. Accident unless both parties take care Loss = $100 Cost for each = $10 Even with care, 10% chance of accident Assuming: Each side is selfish and wants the highest payoff for him/herself Payoffs for P, D: a. In a regime where there is no tort liability Driver No care Pedestria No care -$100, $0 n Due care -$110, $0 Incentive: Moral hazard 1. D will take no care because he pays $0 care

Due care -$100, $10 -$20, -$10 for no

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2. P will take no care, because, knowing D will take no care, no care is the most reasonably action b. Strict liability regime Pedestria n No care Due care Driver No care Due care -$0, -$100 $0, -$110 -$10, $100 -$10, -$20

Incentive: Moral hazard 1. P will take no care, because he pays $0 for no care 2. D will take no care, because, knowing P will take no care, no care is the most reasonable action c. Negligent with contributory negligent Driver No care Due care Pedestria No care -$100, $0 -$100, n $10 Due care -$10, -$20, -$10 $100 Incentive: 1. Assuming P takes no care, D takes no care; Assuming P takes due care, then D takes due care 2. Assuming D takes no care, P takes due care; Assuming D takes due care, P takes due care 3. Contributory negligence provides the right incentive, if (a) the parties cannot negotiate before hand and (b) each does not know what the other party will do. 4. Coase theory: If the party can negotiate before hand, we dont really care how the responsibility is divided initially 5. Davis v. Mann: If D knows that P takes no care, then the burden is shifted on to D, because the game theory does not apply anymore. d. Comparative negligent Accident damage: $100 Due care costs: $10 Some care: $5 Both parties have due care: 10% of accidence Both parties have some care: 50% of accidence
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If one party has due, one has some: 25% of accidence If one has some, one has none: %75 of accidence If one has some, one has none, liability split 75-25 Driver No care Pedestri an No care Some care Due care -$50, $50 -$24, $56 -$10, $50 Some care -$56, $24 -$30, $30 -$10, $30 Due care -$50, $10 -$30, $10 -$20, $10

Incentive: 1. Both D and P take due care Relationships among Intentional Torts, Negligence, and Strict Liability A. Hypo Case: If a driver held strictly liable for any injury that he causes, then how much is he going to drive - Injury of a car accident if it occurs: L - The probability of causing injury: P - The marginal increase in pleasure of driving (B): Depends on how much the driver drives - the more he drives, the less marginal increase in pleasure the additional driving will provide. - How much he is going to drive is going to depend on: B >=< PL - If the driver is held strictly liable, he will keep driving until B<= PL. - The strict liability will calibrate the drives activity level of the to the socially optimal level In Louisiana: - Not holding the blind people strictly liable for the injury that he causes when walking around without a cane is equivalent to giving the blind people a subsidy: Social benefit (B) The moral hazard problem caused by strict liability - If the drive is held strictly liable, then the pedestrian starts to run wild Remedy for the problem: - contributory negligence B. Hypo - pedestrian crossing the intersection against a red light, driver run over the pedestrian intentionally: - the driver is liable for an intentional tort
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- Contributory negligence is not a defense to intentional tort - Intentional tort has an implicit requirement of duty: one has a duty not to commit intentional torts against others. C. Hypo - pedestrian crossing the intersection against a red light, driver driving below speed limit and unintentionally run over the pedestrian: - The driver is not liable under the traditional legal doctrine, because the pedestrian is contributorily negligent. - Contributory negligence is a complete defense for negligence - Why contributory negligence is not a defense for intentional tort, but for negligence - Cost-benefit analysis - The cost of having the driver not to intentionally run over the pedestrian is very low, because the only thing lost is the pleasure of running over someone (B<PL). - But it is relatively more costly to avoid the negligent act. So if the pedestrian is contributorily negligent, thereby creating the dangerous condition, the driver should not be held liable. D. Voluntary assumption of risk: - D intentionally accepting the risk of being injured - A full appreciation of the risk that is coming - An effective defense to intentional tort ???? E. Mirrors among negligence, contributory negligence, intentional tort and voluntary assumption of risk: Example: P sues D for $100 loss D P $100 (strict no liability: P always bears the loss) $100 (if P can prove D intentionally causes loss: loss is moved to D) $100 (if P can prove D negligent: loss is moved to D) $100 (Strict liability: D always bears the loss) $100 (if D can prove P contributorily negligent: loss is moved back to P) $100 (if D can prove D voluntarily assumes risk: loss is moved back to P) F. Justification for Strict Product Liability Revisit Donoghue v. Stevenson in light of negligent regime - Benefit of having a clear bottle: - almost none except can seeing through the bottle - Cost of preventing decay snail going into the bottle: - Very costly if every bottle is inspected - Was Stevenson negligent? Yes - Although it is not justified by cost-effective analysis
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- The intuition still says that the because the bad thing happened, there should be something wrong with Stevensons act (Stevenson should have done something.). - Res Ipsa Loquitur: Similar to strict liability G. Benefit and problem: Benefit of strict liability: - If driver is held strict liability, then driver will automatically calibrate their activity level to socially efficient level. (B=PL) - If pedestrian is held strict liability, then pedestrian will do similar. Problem with negligent: - It doesnt allow a party to automatically calibrate the activity level to socially efficient level, because it is hard to prove negligent in court and therefore the rule would not force the party to adjust their activity level. But the problem is that it is impossible to help both party strictly liable. H. When should the court hold D liable? how to define defect? - On one hand, if we can get the negligence right, then we dont need to hold D liable. We just require the consumer to take precaution and the consumer wont have to pay for an insurance premium to use the product. Also avoid moral hazard. - On the other extreme, if we cant say whether the injury is caused by negligence, then we have to held D liable for product liability. - On one end, for the extreme strict liability, defect means something will cause injury that it would not regularly cause. - On the other end, defect requires negligence - In general, the court define defect between the two extremes. - What is the problem of holding manufacturer strict liability - moral hazard - A solution to moral hazard problem: - holding D negligent - What is the different between strict liability and negligence - The level of the activity that is product by these rules Primary v. Secondary assumption of risk (Blackburn v. Dorta): A. Primary assumption of risk: useless because D did not has a duty or did not breach the duty.
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B. Secondary assumption of risk a. Express v. Implied assumption of risk Express: - contractual waiver, resolved within contract law. - In general, express assumption of risk completely bars recovery Implied: Unreasonable i. Ps act is unreasonable, P cannot recover ii. Ps act is reasonable, P can recover Strict v. qualified assumption of risk i. Strict: as useless as primary assumption of risk P did not have a reasonable alternative. It is only a label of a possible defense. ii. Qualified: The P did something stupid b. Secondary, implied, qualified assumption of risk Fact pattern in general P did something stupid, which implied P assumed the risk Hypo #1: A negligently driving, B was intentionally suicidal and jumped in front of the car at the last second Analysis: Although A is negligent in general, but B committed an intentional tort against himself, and therefore cannot recover: because we always seek to deter intentional tort as the highest priority. Hypo #2: A intentionally run B over while B was walked on the street negligently. Analysis: B should be able to recovered because A committed an intentional tort. - As possible defense: consent- not a good defense, because B could not possibly consent to being run over - But B could be negligent - Is this a good defense? - This is a mirror image of Hypo #1: We always seek to deter intentional conduct at the highest priority Knight v. Jewett A. The relationship between comparative fault and voluntary assumption of risk B. What is the actual rule? - a participant in an active sport breaches a legal duty of care to other participants only if the participant intentionally injures another player or engages in
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conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport. C. Hypo: A was negligently driving, when B intentionally jumped in front of the car Analysis: As possible defense: A violated no duty D. After this case, the only thing matter in defending negligent case is whether D violated any duty - duty exists or breaches duty? - depending on: the fact pattern and the specific of the definition of duty. E. Formal doctrine of duty is open, but judges normally apply narrow bound F. By saying voluntary assumption of risk is abolished and the court is required to make decision based on duty/breach/causation regime, the duty/breach/causation doctrine become more complicated.

Tort exam tips 1. Long fact patterns are given and students are expected to resolve the issues 2. Whether the student can articulate the rules and apply the rules to resolve the issues 3. Easy issues - just enough analysis 4. Hard issues - determine what doctrine to use and the intrinsic value of the doctrine

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