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TORTS
Twila Perry Fall 2008 duty breach what is the standard of care? and did defendant fall below it? causation plaintiff must prove that defendant's negligence cause her injury injury 1) establish plaintiff's case. plaintiff must prove case by proving all four elements of a tort case (duty, breach, causation, injury) 2) then defenses contributory negligence, assumption of risk 3) jury usually decides cases of breach and causation. duty and injury are usually set/definite procedural items: summary judgment and directed verdict no negligence as a matter of law. reasonable people could not differ, or important social policy issue. summary judgment happens before trial after discovery. directed verdict happens at trial after plaintiff has presented case Underlying POLICY 1. compensation 2. deterrence 3. corrective justice restore to status quo 4. punishment 5. avoid violence/chaos 6. effective tort system keep court costs down I. Introduction to Tort Liability A. Prologue B. When Should Unintended Injury Result in Liability i. Hammontree v Jenner a) Facts Def driving, suffer epileptic seizure & lost control of car. Crashed into shop owned by Pl and cause damage and injury to Pl. Def had history of medically managed epilepsy & followed all requirements to manage his condition. Could not foresee a seizure. Pl pursues action of absolute liability. Pl did not pursue negligence theory. b) Holding for Def. Would not consider absolute liability as a cause of action C. The Litigation Process i. aggrieved party initiate claim ii. burden is on the plaintiff at trial iii. directed verdict iv. motion for summary judgment v. judgment n.o.v. D. The Parties and Vicarious Liability i. Christensen v Swenson a) Facts security guard went to restaurant on break hit another vehicle. Person hit sued security guard and her employer b) Respondeat Superior let the master answer - employer is responsible for the actions of their employees in the course of employment c) vicarious liability attachment of responsibility to a person for harm or

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damages caused by another person in either negligence lawsuit or criminal prosecution d) Birkner Factors (for vicarious liability) employee's conduct be of general kind the employee is hired to perform (must be about the company's business) employee's conduct must occur substantially within the hours and ordinary spatial boundaries of employment employee's conduct must be motivated (in part) by the purpose of serving the employer's interest ii. Roessler v Novak a) facts - surgeon independent contractor within hospital b) Apparent authority the appearance of being the agent of another (employer or principle) with the power to act for the principal. A representation by the purported principal reliance on that representation by a third party change in position by the third party in reliance on the representation II. The Negligence Principle A. Historical Development of Fault Liability i. Brown v Kendall a) Facts action of trespass for assault and battery dog fight between dogs belonging to Pl and Def. Def attempt to break up fight by hitting dogs with stick, accidentally hits Pl in eye causing severe injury b) Holding abolished the rule that a direct physical injury entailed strict liability. Def only liable if intended to strike the Pl or if he was at fault (negligent) in striking him. c) When Def is engaged in a lawful act and injures Pl, Pl may not recover damages if Pl and Def exercised ordinary care Pl and Def failed to exercise ordinary care Pl alone failed to exercise ordinary care B. The Central Concept i. The Standard of Care a) Adams v Bullock Facts Pl was walking over bridge, near which Def's wire that operate trolley cars ran. Pl swinging wire which came in touch with trolley wires which resulted in Pl. getting shocked and burned. Pl sues Def successfully. Pl verdict affirmed on appeal. Def appeals. Issue Did Def breach a duty of reasonable care? Holding Def must only exercise ordinary care in light of ordinary risk. Foreseeability of the harm is balanced against the ability to prevent the injury. b) United States v Caroll Towing Co. Facts barge got loose, sank, damaged other boats Issue what should the standard of care be? Holding bargee should be present Test Learned Hand Formula B<LxP (an economic meaning of negligence) B burden Def will bear to avoid the risk P probability of the potential injury L gravity of the potential injury Traditional balancing test = whether a reasonable person would have recognized the risk and taken strides against it. c) McCarty v Peasant Run Facts Pl guest in Def resort. Pl attacked in hotel room after leaving and failing to lock the sliding door. Pl brings suit claiming negligence on part of

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Def. Pl no serious injuries, but emotional harm Holding apply Learned Hand formula formula more analytic than operational significance; must usually assess reasonableness. ii. The Reasonable Person a) Bethel v New York City Transit Authority Facts Pl fell and incurred a severe back injury when sat on a folding wheelchair accessible seat that collapsed. Pl argued that recent repair to seat put Def on constructive notice that the seat was subject to collapse, and that a proper inspection would have revealed the seat's defect. Issue whether a duty of extraordinary care for common carriers should be abandoned in favor of a duty of reasonable care. Holding yes. Common carriers should be held to the basic standard of reasonable care for negligence cases. Because of this case common carriers are now uniformly held to a standard of reasonable care b) Reasonable Person Jury Instruction Was Def as careful as they could be? Not a proper instructionbecause care should be reasonable not subjective to Def. What if Def intended? Doesn't matter. It's what you actually did; not intentions/state of mind. Action versus intention. What would YOU do? No. Should be a reasonable person standard. What if Def did what most would do? No. Doesn't matter what custom may be. Should do what a reasonable person would do. What if person is in an emergency? Some states have an EMERGENCY DOCTRINE. Children? Elderly? Mentally handicapped? C. The Role of Judge and Jury i. In General a) Baltimore & Ohio Railroad v Goodman Facts Pl was driving in his car and was struck at a train crossing by a train operated by Def Issue jury instructions on determining standard of care Holding questions of due care is generally left to the jury. But when dealing with a standard of conduct, and when the standard is clear it should be laid down once and for all by the courts. Stop, look & listen rule b) Pokora v Wabash Railway Co. Facts Pl traveling in his car across four tracks of Def's railroad. Pl's view was obscured and after not hearing bells and whistles of oncoming train, proceeded to cross the tracks and was subsequently struck. Holding using the standard in the Goodman case is for application for the judge. Jury should decide unless reasonable minds couldn't differ then the court would take the issue from the jury via a directed verdict. c) Andrews v United Airlines, Inc. Facts Pl flying on Def flight. Upon arrival @ gate while they were disembarking the plane, a heavy briefcase fell on head and seriously injured her. Issue Was Pl's injury foreseeable and Def was negligent in failing to prevent it? What should the standard of care be? Who determines the standard of

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care? Judge? Jury? ii. The Role of Custom a) Trimarco v Klein Facts - Pl fell thru glass door tub enclosure in building owned by Def. Glass was thin regular class. Not tempered glass as was customarily used for tub enclosures. Pl sued Def for negligence due to Def's failure to use the shatterproof tempered glass. Holding b) Custom does not determine negligence; reasonableness of conduct. c) Custom is relevant in determining use of ordinary care in cases where a reasonable person would have no knowledge to make a decision d) CUSTOM DOES DETERMINE STANDARD OF CARE IN MEDICAL MALPRACTICE iii. The Role of Statutes a) Martin v Herzog Facts Pl riding in buggy. Def driving in car that struck Pl's buggy. Pl was driving without lights on. Issue Did Pl contribute to the accident because of failure to have lights on. Holding yes violation of statute. b) Tedla v Ellman Facts Pl's were walking eastward on the eastbound Sunrise Highway. Struck from behind by Def car. Lower ct found for the Pl. Appellate affirmed. Def appeal and argues Pl's were contributorily negligent as a matter of law (for violating statute which states which direction pedestrians should walk) c) Implications Negligence Per Se Negligence in itself. If person violates statute, it is not negligence. NOT a question for the jury. NY has negligence per se rule --> not all states have this rule; case does not go to jury Evidence of Negligence unexcused violation of a statute is only evidence of negligence for the jury to determine Presumption of negligence often jury unless def offers evidence to rebut presumption d) Statutory Purpose Restatement 286 when statute should be standard of care (statute has to apply to the injury that occurred) statutory purpose to protect a class of persons which includes the one whose interest is invaded to protect the particular interest which is being invaded to protect that interest against the kind of harm which has resulted to protect that interest against the particular hazard from which the harm has results e) Compliance with statute does not shield Defendant from Negligence f) Exception - Licensing statutes generally not used to set a standard of care purpose is to protect the public from actions by unskilled persons. g) Do not use statute in cases where harm occurred was different from the harm that the legislation was seeking to prevent Platz v Cohoes DeHaen v Rockwood Sprinkler D. Proof of Negligence i. Negri v Stop and Shop, Inc. - Constructive Notice a) Facts Pl slip and fall in supermarket and alleges that broken jars of baby food causes her to slip and fall. Evidence shows that aisle was not cleaned/inspected for 50 min 2 hrs before incident b) Issue Did Def have constructive notice? c) Holding a prima facie case of negligence may be established by circumstantial

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evidence that a party did not act to remedy a potentially hazardous condition. Up to the jury to determine if Def had constructive notice. d) Constructive notice circumstantial evidence giving rise to negligence. Must be visible and apparent and must exist for a suficient time prior to accident. Knowing of the danger, or have known of the danger, which Def has control over and takes no steps to remedy the situation. Construe that Def had notice rule of circumstantial evidence of notice e) Actual Notice a direct positive knowledge of fact or information sufficient to put a reasonable prudent person on notice of such fact. ii. Gordon v American Museum of Natural History a) Facts Pl injured when fell on Def front steps. A piece of paper was on the stairs near or at where Pl fell. Waxy paper came from food stand that was contracted by Def. Other paper on another portion of steps was there ~~ 10 minutes before Pl fell b) Issue Did Def have constructive notice that there was a waxy piece of paper on the stair which could result in an injury? c) Holding NO evidence of paper being there before Pl fell. Lack of evidence establishing constructive notice of the particular condition that caused his fall iii. business practice rule = Vermont does not require constructive notice for business practices that create a reasonable foreseeable risk of harm to invitees. Should anticipate dangerous conditions. Also called mode of operation iv. Byrne v Boadle res ipsa loquitor a) Facts Pl struck with barrel of flour from Def's shop which deals in flour. Though Pl did not see where the barrel came from. b) Holding case can go to jury simply by showing that there wsa an accident and it was caused by the barrel. It is only necessary that reasonable persons would sya that more likely than not there was negligence. The falling barrel is prima facie evidence of negligence. Def was in custody of the barrel and is responsible for the acts of his servants. If there are any facts inconsistent with negligence, Def must prove them. v. McDougald v Perry a) Facts Def's spare tire came loose from under his tractor trailer and hit Pl's windshield. Def stated that before the trip he inspected the spare but not every link in the chain, and that probably one of the links slipped from the nut which secured the tire to trailer. Chain couldn't be found. b) Issue Is Pl required to prove negligence beyond the inference that the injury resulted automatically from negligence of Def. c) Holding No. Tire would not have fallen from the cradle unless someone is negligent. Res Ipsa proof that the instrument causing injury was under the exclusive control of Def and te accident doesn't happen unless negligent. vi. Res Ipsa Loquitor rule of evidence that permits, but does not compel, an inference of negligence under certain circumstances. Essentially, the injured Plaintiff must establish that the instrumentality causing the injury was under exclusive control of the Def and that the accident is not one that would not, in the ordinary course of events, have occurred without negligence on the part of the one in control. a) Accident must be of a kind which ordinarily does not occur in the absence of someone's negligence b) it must be caused by an agency or instrumentality within the exclusive control of the Def. c) It must not have been due to any voluntary action or contributory negligence on the part of the Pl vii.Procedural Effects of Res Ipsa Loquitor (state specific) a) Inference of Negligence a fact situation is so strong that the jury is

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instructed that it must find negligence in the absence of a persuasive exculpation. Can infer negligence without Plaintiff proving any evidence of negligence b) Presumption (prima facie) of negligence creates presumption of negligence unless defendant rebuts the presumption. Once the defendant rebuts the preseumption, the presumption is gone but case still continues and Plaintiff still has the burden of proof at trial. If the Defendant offers not plausible rebutting evidence the Plaintiff is entitled to judgment as a matter of law in liability. c) Shifts burden of proof defendant has to prove non-negligence by at least 51% viii. Ybarra v Spangard a) Facts Pl underwent an appendectomy. Several doctors/nurses involved in the surgery. Pl awoke and felt sharp pain in upper back. Pain spread to arm. Pl suffered diminished sensation atrophy of muscles. b) Issue Should the trial court have used theory of res ipsa loquitor c) Holding since Pl was unconscious those entrusted with care have the burden of explaining. Rebuttable presumption of negligence- burden of production of evidence shifts to the Def. If Def sufficiently rebuts --> burden shifts back to Pl. d) Res Ipsa in Medical Malpractice cases applies to all Def's who have control over the instrumentality which may cause injury to Pl while unconscious. Respondeat Superior liability is imputed to the surgeon as a result of the negligence of his aids and assistants. E. The Special Case of Medical Malpractice i. Case of negligence a) standard of care must take into account the specialized knowledge and skill of a physician higher standard of care; however, it has allowed physicians to set own legal standards of rasonable conduct b) role of custom c) questions of proof Pl must prove that a physician departed from the relevant recognized standard of medical care while treating the Pl by introducing expert witnesses ii. Sheeley v Memorial Hospital a) Facts Pl gave birth in Def hospital. Def doctor (family practitioner) performed an episiotomy. Pl developed complications and sued. Pl witness was OB/GYN with significant experience. Def try to exclude expert testimony argued he was essentially overqualified. b) Issue Did trial court err in not admitting Pl's expert testimony c) Holding yes d) strict locality requires that the expert testifying be from the same community as the Def e) similar locality allows for experts from similarly situated communities to testify concerning the appropriate standard of care iii. States v Lourdes Hospital a) Facts Pl in hospital for surgery to remove ovarian cyst. Pl at some point injured her arm claims anesthesiologist to blame. Before surgery, Pl received IV tube in hand to administer anesthesia. Pl complain of pain and burning sensation during & pain after. Pl diagnosed with right thoracic outlet syndrome & reflect sympathetic dystrophy. Cause of injury in dispute. Pl claim negligence in positioning of her arm. b) Issue Should Pl be able to pursue res ipsa loquitor? c) Holding yes d) Allow expert testimony to bridge the gap between jury's common knowledge and the case.

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iv. Matthies v Mastromonaco informed consent

a) Facts 81 year old fell and broke hip. When taken to ER, Def prescribed bed rest; not surgery. Pl had osteoporosis Def felt bones would not have withstood surgery. Pl's fracture dislocated during bed rest leg shortened and Pl never regained ability to walk. b) Issue Whether the doctrine of informed consent requires a physician to obtain patients consent before implementing a nonsurgical course of treatment & should Dr. discuss alternative courses of treatment that a Dr. does not recommend? c) Holding yes. To obtain patient's informed consent; physician should explain medically reasonable alternatives; including the risks and likely outcomes, even when chosen course is noninvasive d) Informed Consent have autonomy over body; others can not do anything without your consent. Consent can be revoked risk insufficiently explained e) What is the standard for how much a patient should be told reasonable patient standard physicians obligation to provide information that a reasonable patient would want to know professional standard standard frames as that which would be made by a reasonable practitioner under similar circumstances; customary for doctors III. The Duty Requirement: Physical Injuries A. Duty i. Def had no duty to exercise due care in the particular situation; negligence is often referred to as the breach of duty - must determine duty element before determining negligence ii. Does a general duty of due care exist unless the Def can invoke an exception iii. 3rd restatement ordinarily a duty to exercise reasonable care exists with regard to physical harm but recognizes that exceptions should be created iv. Privity doctrine cts held that the manufacturer of a product generally owed a duty of due care to the person who acquired the product from the maker no general duty of care was owed to remote buyers or users B. Affirmative Obligations to Act if an individual is in danger should the law impose a duty on others affirmatively to assist that person? i. Harper v Herman special relationship a) Facts Pl guest on Def boat. Pl invited on boat by another guest. Pl and Def did not know each other. Def skilled boat owner. Def parked boat in area shallow enough to park the ladder; but deep enough to swim. Pl dove off boat in about 23 feet of water struck the bottom and severed his spinal cord. b) Issue Does def who is a social host owe a duty of care to warn a guest that the water is too shallow for diving? Was a special relationship created? c) Holding No d) Exceptions to the No Affirmative Duty Rule special relationships 2nd Restatement Sec 314a special relationship only found on part of common carriers, innkeepers, possessors of land who hold it open to the public & persons who have a custody of a person under circumstances contract non-negligent injury non-negligent creation of risk ii. Farwell v Keaton a) Facts Pl and Def drinking. Followed girls to engage them in convo. Girls tell male friends they are being followed. 6 men follow Pl and Def. Pl severely beaten. Def put Pl in care and drive around then left Pl at grandparents home. Next day, Pl found, taken to the hospital and died 3 days later.

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b) Issue did Def owe Pl a duty of ordinary care to seek medical treatment for Pl or to inform someone of Pl's condition? c) Holding yes. Voluntary assumption and special relationship. Pl and Def were companions on a social venture. Common undertaking = special relationship. Common understanding that one will render assistance to the other when he is in peril. Failure to do something would be shocking to humanitarian conditions. d) Voluntary assumption even if no duty, but begin rescue/assistance must use reasonable care. If begin, then stop person may be worse off. Must follow through. May have cost victim opportunity to have someone else assist. e) Affirmative Action alert someone, intervene iii. Tarasoff v Regents of the University of California a) Facts Poddar was a patient of Dr. Moore. Confided his intent to kill Pl Tarasoff to Moore. Moore requested that Poddar be detained by campus police was subsequently released as he appeared rational. Moores supervisor ordered that Poddar not be further detained. Neither Tarasoff nor her parents were notified of Poddars threat. Poddar eventually killed Tarasoff. b) Issue was there a duty to inform Tarasoff or someone else of the possible threat of Poddar harming her? c) Holding Yes. Mental health professionals have a duty to protect individuals who are being threatened with bodily harm by a mental patient iv. Uhr v East Greenbush School District a) Facts Pl was screened for scoliosis as part of a school program (as mandated by state law) in the 7th grade. Not screened in the 8th grade. When Pl was screened in 9th grade, she tested positive. However, her condition progressed to the point where surgery was required. Pl argued that Def owed a duty because it created a special relationship with them via Ed. Law Sec 905(1) & breached duty by failing to perform exam during the year. b) Issue can violation of statute give rise to a private cause of action? c) Holding No d) Test for the availability of a private right of action (Sheehy v Big Flats Community) Whether the Pl is one of the class for whose particular benefit the statute was enacted Whether recognition of a private right of action would promote the legislative purpose Whether creation of such right would be consistent with the legislative scheme v. Sherrice Iverson Case a) CA legislature enacted law to penalize those who failed to report witnessed crimes. Crime against person under age 14 shall notify a peace officer if witness to a commission of murder, rape or other listed crimes. b) Should a criminal statute establish a civic duty Statute establishes a specific duty to notify a peace officer In a civil case, would need to persuade the ct that a general civil duty is required not just the specific duty dictated by the court. vi. Omission vs Commission vii.Misfeasance vs Nonfeasance C. Policy Bases for Invoking No Duty i. Strauss v Belle Realty Co. a) Privity lack of privity is a factor in determining whether a duty is owed. b) Foreseeability foreseeability is only a factor in determining whether a duty is owed. c) Facts Pl lived in building. Def (Con Ed) supply power to Pls apartment pursuant to an agreement and to common areas pursuant to an agreement with landlord.

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During blackout, Pl had no running water and while in search for water in basement Pl fell on darkened, defective stairs and sustained injuries d) Holding for Def. No privity of contract between Pl and Def (Con Ed) ii. Reynolds v Hicks should a criminal statute establish a civil duty? a) Facts Minor consuming alcohol at family wedding. Drove intoxicated. b) Social host liability traditionally no liability for social host for injuries inflicted on 3rd party because social hosts are not as capable of handling the responsibilities of monitoring their guests alcohol consumption as are their commercial and quasi-commercial counterparts c) Dram shop acts provided civil liability for alcohol vendors who provide to minors or already intoxicated people iii. Vince v Wilson negligent entrustment a) Facts Pl injured in car crash when riding in a car driven by Pl's grandnephew. Pl provided $$ to grandnephew to buy car when he wasn't licensed or qualified to drive. b) Issue should the rule of negligent entrustment be applied to a person who knowingly provides funding to an incompetent driver to purchase vehicle and to a person who knowingly sells a vehicle to an incompetent driver. Negligent entrustment usually only applied to someone who owns or has control over instrumentality c) Holding for the Pl. sufficient evidence to go to jury. D. The Duties of Landowners and Occupiers i. Entrants to Land a) Trespassers duty to avoid willful or wanton conduct b) Licensee duty to make safe dangers of which the possessor is aware (mutual benefit to owner and visitor, social guest) c) Invitee duty to exercise reasonable care to protect against both known dangers and those that would be revealed by inspection. (if only owner had material benefit) ii. Carter v Kinney a) Facts Pl at Def house for bible study. Slipped on patch of ice on driveway injured. b) Holding Pl is a licensee, not an invitee. Def owed no duty. iii. Heins v Webster County a) Facts man fell at hospital after visiting daughter iv. Posecai v Wal-Mart Stores, Inc. a) Four Tests from Different Jurisdictions to Determine if a business has duty specific harm prior similar incidents balancing (ie Learned Hand) totality of the circumstances takes other factors ie nature, condition and location & other factual circumstances bearing on foreseeability b) Holding Ct found no duty for Def. Relationship between safety & economics. E. Intrafamily Duties i. Broadbent v Broadbent a) Facts Pl son drown in pool when mother left backyard to answer telephone. Pl son was revived but suffered brain damage. Sons suit brought against mother by father on childs behalf. b) Issue Does the doctrine of parental immunity allow a claim against mother from injured child? ii. Negligent supervision iii. Intrafamilial immunities a) Between husband & wife interspousal immunity for negligence & intentional

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torts --> eventually abrogated disturb family unity fraud and collusion b) Parent-child disturb family unity iv. Duty to Child alone discretionary no sue v. Duty to world at large duty owed to everyone - could sue F. Governmental Entities i. Municipal and State Liability a) Riss v City of New York Facts Issue whether police have a duty for special protection. Police already have a duty to protect, but was Linda Riss owed special protection? Resource allocation issue when determining whether a duty was owed b) Lauer v City of New York administerial v discretionary acts discretionary acts may not result in municipalities liability even when the conduct is negligent. However, ministerial acts (conduct requiring adherence to a governing rule) may subject the municipal employer to liability for negligence ii. The Federal Tort Claims Act a) Cope v Scott IV. The Duty Requirement: Nonphysical Harm A. Emotional Harm i. Falzone v Busch zone of danger a) Facts Def struck and injured Pl Charles. Pl Mabel witnessed this injury and feared for her safety b) Issue whether someone may recover for bodily injury or sickness resulting from fear for her safety caused by a negligent defendant, where there was no physical impact c) Holding imposed liability for inflection of mental distress when negligence creates potential for physical harm to the traumatized individual. d) LANDMARK CASE IN NEW JERSEY a physical impact used to be necessary to sustain a negligence action ii. Metro-North Commuter Railroad Company v Buckley a) Facts Pl worked as pipefitter for railroad. Was exposed to asbestos. While he had no symptoms of any asbestos-related disease, he feared that he would develop cancer. b) Issue whether a railroad worker negligently exposed to a carcinogen (asbestos) but without systems of any disease can recover under FELA for negligently inflicted emotional distress. Is physical contact the same as physical impact? c) Holding No. Can not recover until manifests physical symptoms iii. Gammon v Osteopathic Hospital of Maine, Inc. - exception to Zone of Danger a) Facts Pl's father died and Def hospital mistakenly sent bag with a patient's severed leg to Pl's home instead of deceased's belongings. Pl, thinking leg was his fathers, suffered severe emotional distress resulting in nightmares and problems with personal relationships b) Holding Ct abandoned requirement that Pl show physical impact, objective manifestation, underlying or accompanying tort, or special circumstance to assert a claim of emotional distress without physical injury. A person is entitled to protection of his psychic well being as much as his physical well being. Def should have foreseen that its actions had a probability of causing emotional distress. The exceptional vulnerability of a family of recent decedents supports the finding that Def should have foreseen the resulting mental distress, and it also eases the court's fear of fraudulent claims iv. Portee v Jaffee (test for bystander recovery)

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a) Facts Pl watched her son died from being trapped between an elevator door and wall in Def's apartment building. Pl became severely distressed, selfdestructive, and attempted suicide b) Issue Whether Def can be liable for negligently causing mental distress where Def's conduct creates neither the risk nor the occurrence of physical harm but where emotional injury is foreseeable. c) Holding Yes. d) Dillon Factors Whether Pl was located near the scene of the accident Whether Pl directly observed accident Whether Pl and victim were closely related e) Portee Factors The death or serious injury of another caused by Def's negligence a marital or intimate relationship between Pl and injured person observation of the death or injury at the scene of the accident severity of physical injury causing emotional distress f) Portee/Dillon Factors There was a death or serious injury caused by negligence Plaintiff must be near accident There must be a close relationship to the victim There must be a shock (physical manifestation) resulting from witnessing the accident v. Johnson v Jamaica Hospital a) Facts Pl's newborn daughter was abducted from Def hospital. Child was recovered 4 months later. Pl sued for emotional distress brought about by Def negligence b) Issue whether Pl may recover damages for mental distress they suffered as a result of direct injury inflicted upon their daughter by Def's breach of duty of care to her. c) Holding No. Def owed no duty of care to parents. Court refused to recognize Pl's contention that it should have been foreseeable to Def that any injury to their child would cause Pl's mental distress. This foreseeability does not establish a duty from Def to Pl. In the absence of duty, there is no liability. To permit Pl recovery would be to invite open-ended liability for indirect emotional injury suffered by families resulting from negligent care or treatment of the very young, elderly or incapacitated. vi. Loss of consortium loss of society, companionship, advice and comfort. a) Either spouse can recover for the loss of the other's services and consortium b) there must be a complete loss of companionship and intercourse with the injured spouse for a definite period of time c) limited to legally married couple only d) parent can recover for the loss of consortium of a child, but a child cannot recover loss of consortium for a parent e) contributory negligence reduces liability for loss of consortium B. Wrongful Birth and Wrongful Life i. Wrongful birth claim by parents that, because of Def's negligence, they gave birth to a child with a genetic or other congenital defect ii. Wrongful Life a claim by a child born with a genetic defect who was born as a result of Def's negligence (public policy court cannot make judgment on whether a child would have been better off if never born) iii. GENERAL RULE parents may recover for emotional distress and for physical harm caused by that emotional distress, offset by whatever emotional benefits they may derive from the existence of their first child, offset by any benefit that may be derived by the wrongful life, and offset by the cost to raise non-handicap child a) When wrongfulness of birth is due to a physician's negligence, parents can

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recover for extraordinary expense incurred in consequence of the disorder, however, a child will normally not be able to recover for a physician's negligence if the parents recovered already. iv. Emerson v Magendatz a) Facts - Pl went to Def to perform a sterilization procedure; performed it but got pregnant afterwards; baby born w/ congenital defects; Pl got second sterilization procedure done after birth and sued b) Holding Limited recovery rule grant compensation to plaintiffs for the medical expenses of the ineffective sterilization procedure, for the medical and hospital costs of the pregnancy, for the expense of a subsequent procedure, for loss of wages, and sometimes for emotional distress arising out of the unwanted pregnancy and loss or consortium to the spouse arising out of the unwanted pregnancy. They also generally include medical expenses for prenatal care, delivery and postnatal care.\ c) Full recovery rule without offsetting either the economic or the emotional benefits derived from having a healthy child. Recovery of all damages that are reasonably foreseeable and that would result from the negligent performance of the sterilization procedure d) Child could have claims courts generally do not hear wrongful life claims but could recover for permanent physical harm and medical expenses V. Causation a causal relationship (actual and causal) must exist between the defendant's conduct and the plaintiff's harm. If Def did not cause the injury in fact, he is not liable. But even if Def did cause the injury in fact, he is not liable if he was not the proximate cause A. Cause in Fact i. But For Rule if the injury to Pl would not have happened but for the act or omission of Def, such conduct is the cause in fact of the injury. a) Proof of causation Pl has the burden of proof to prove that, more likely than not, Def was a substantial factor in bringing about result ii. Basic Doctrine a) Stubbs v City of Rochester Facts Def city negligently intermingled water supply, crossing drinking water with contaminated water used for firefighting. Pl contracted typhoid and alleged that it was caused by contaminated water. Pl's experts agreed typhoid could be caused by the water and statistics showed a greater number of typhoid cases reported after water was intermingled. Holding Pl submitted sufficient evidence that Def's negligence caused injury, allowing a reasonable inference of causation to be drawn. Pl need only prove with reasonable certainty that Def was cause in fact. Substantial Factor Test where two events concur to cause harm, and either one would be sufficient to cause substantially that same harm, causation requirement is met. Loss of Chance/Opportunity Pl must prove, more probably than not, that Def reduced the opportunity of avoiding harm b) Zuchowitz v United States Facts Pl prescribed an excessive amount of a drug Danocrine. Pl wound up with PPH. Became pregnant, exacerbated her illness. Died after giving birth Issue Pl couldn't prove that the overdose of Danocrine caused the PPH. Had Pl experts that said that the Danocrine to a reasonable medical certainty and more likely than not caused her PPH. Was the overdose of Danocrine a substantial factor in causing Pl's illness and subsequent death? - - the Pl must establish a causal relationship between the physician's negligent actions or fialure to act and the resulting injury by showing that the action or omission constituted a substantial factor in producing the injury. When expert medical testimony will be admitted Daubert

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c)

whether the theory can (and has been) tested according to the scientific method, whether the theory or technique has been subjected to peer review and publication, in the case of a particular scientific technique, the known or potential rate of error, whether the theory is generally accepted. Holding Albert v Schultz loss of chance Facts Pl lost leg. Holding - For Def. Pl couldnt prove that there was a window of time during which measures could have been taken to save his leg; because it wasnt clear he had the right kind of vein. Therefore, they didnt demonstrate a causal link. Loss of Chance where the defendant has negligent deprived or reduced Pls chance to survive. The injury is the lost opportunity of a better result, not the harm caused by the presenting problem. Pl has burden of proof that the harm for which he originally sought treatment was made worse by the lost chance. Standard of Proof liability if Pl can demonstrate to a reasonable degree of medical probability that there was a causal link between the negligence and the lost chance

iii. Introduction to Joint and Several Liability a) Joint and Several Liability - where there are multiple defendants, Pl can recover 100% from an Def. Defs can later sue each other and untangle facts. b) Several liability Pl takes loss; Defs only liable for their share of damages iv. Multiple Defendants when there are multiple defendants, there will always be a rebuttable presumption of negligence a) Summers v Tice Facts Pl was struck by a bullet discharged from the gun of one of two negligent hunters he was hunting with. Pl cannot identify the responsible Def. Holding Def's are joint tortfeasors and each is jointly and severally liable, even though only one inflicted the injury. The alternative liability rule used here shifts the burden of causation to Def's each must absolve himself. Both Def's must be negligent for this rule to apply Alternative liability shifting the burden of proving causation onto negligent Defs (joint tortfeasors) and each must dissolve himself from liability because Defs are morally culpable and put the Pl in peril b) Hymowitz v Eli Lilly & Co market share concept Facts DES caused vaginal adenocarcinoma in daughters of women who took DES asa miscarriage preventative. Due to the fact that there were numerous manufacturers of DES and the latent nature of Pl's injuries, it was difficult to determine which particular manufacturer of DES actually caused Pl's harm. Issue can a Pl recover from DES manufacturer when identification of the responsible drug is impossible. Holding alternative liability available to permit recovery burden shifting. IN this case, Def's are not better equipped to provide evidence of who is at fault; alternative liability does not provide Pl's relief. Switch to market share concept focus more on culpability than causation Market Share Liability in case where there are multiple Def's in a commercial enterprise, some courts have required all producers who are unable to prove their noninvolvement to pay in proportion to their

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percentage of the market share. c) Concerted Action drag race v. The Special Case of Toxic Harms B. Proximate Cause assuming cause in fact, whether there is still a reason why Pl shouldn't be permitted to proceed. Proximate cause becomes an issue when there is a (1) unforeseeable or unexpected harm (2) unforeseeable or unexpected victim (3) unexpected manner or (4) break in the chain of causation i. Unexpected Harm a) Benn v Thomas eggshell plaintiff, thin skull rule not an intervening factor and will not break the chain of causation. Facts Pl was rear-ended. Bruised his chest and died of heart attack 6 days later. Court said the eggshell Pl rule should apply and Def is liable, though damage might be reduced because of his fragile condition Eggshell Plaintiff an exception to the reasonable foreseeability test for proximate cause. Def must take Pl as he finds him. Medical aggravation negligence of the original tortfeasor is a proximate cause to normal efforts by third parties in rendering aid it is an intervening cause scenario. If Pl injury is aggravated via a medical treatment, the Def is still liable unless the medical treatment was GROSSLY NEGLIGENT so that it was a superseding factor. b) In re Arbitration between Polemis and Furness, Withy & Co directness Facts falling wooden plank in hold of ship triggered a fire fueled by benzene Rule negligent party is liable for all harm caused by acts or conduct regardless of foreseeability Directness Test a negligent act is the proximate cause of any harm it directly causes. Regardless of foreseeability. c) Overseas Tankship v Morts Dock I (Wagonmound) foreseeability Facts - Def dumped oil. Caught fire, and burned Pls property when oil caught on fire from welding job Holding Def is liable for damage to the docks but not for the ensuing fire, which was not reasonably foreseeable. Overturned the Polemis directness test. ii. Superseding Causes if a third partys conduct is sufficiently egregious and willful it can break the chain of causation and relieve negligent Def of liability. a) Doe v Manheimer iii. Unexpected Victim someone gets hurt, when they shouldnt have a) Palsgraf v Long Island Railroad Co Facts passenger with bag of fireworks jumps on train, but drops bag. Fireworks explore, and causes a scale to fall landing on someone. Holding ANDREWS MAJORITY there is a duty to the public at large for any and all injuries resulting, foreseeability is not needed no zone of danger. DIRECTNESS not too many intervening acts that would sever liability Dissent Cardozo no liability for actions outside of foreseeability, there is zone of danger thus no duty, no negligence. VI. Defenses A. The Plaintiff's Fault i. Contributory Negligence a) Last clear chance defense to a defense. Def says Pl contributorily negligent. But Pl counters by saying Def had last clear chance ii. Comparative Negligence mitigates but does not bar recovery. Award damages according to % Def is responsible considering Pls a) Pure comparative negligence Pl recovers % of damages from Def who is at fault, for their percentage of fault, regardless if Pl was more at fault (ie Pl 75% at fault, recovers 25% from Def)

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b) Modified comparative negligence If Pls negligence was not as great as Defs, can recover iii. Avoidable Consequences even if the accident was Defs fault, Pls recovery might be reduced by a failure to exercise due care to mitigate the harm done. B. Assumption of Risk an affirmative defense. i. Express Agreements exculpatory agreement a) Invalidate an Exculpatory Agreement Tunkl Factors Def business engaged in performing a public service Def business is the type suitable for public regulation Pl is placed under control of seller, Def Def business holds itself open to any member of the public At point of purchase, no provision to purchaser to pay additional to protect against negligence Def possessed advantage of bargaining strength like an an adhesion contract - unconscionable b) Dalbury v SKI, Ltd Facts Pl hit an uncovered ski lift pole and got hurt. Issue Eventhough Pl signed an exculpatory agreement, should Def be held liable? Holding c) Assumption of risk discussion Does not preclude recovery Against not good for people to give up all rights they otherwise have. Goal of tort law is to prevent accidents ii. Implied Assumption of Risk look at the conduct of the Pl. Subjectively KNEW of the risk. Accepted risk voluntarily, knowingly and reasonably. a) Murphy v Steeplechase Amusement Facts Pl went on amusement park attraction, fell and hurt himself. Rule person was aware of the nature of the ride and the risk/consequences involved. He assumed the risk C. Pre-Emption VII. Strict Liability A. Doctrinal Development i. Fletcher v Rylands abnormally dangerous activities nonnatural use a) Holding - Held that a person who brings something onto his land that involves a nonnatural use of the land and is likely to cause substantial damage if it escapes will be strictly liable if it in fact escapes and causes harm. ii. Rylands v Fletcher iii. Sullivan v Dunham blasting case a) Facts guy used dynamite to uproot a tree, and a chunk of it hit a person on the highway b) Holding use of property is an absolute right, but qualified to a higher right of the safety of persons; so if in the use of ones property one hurts another, then there is strict liability c) STRICT LIABILITY FOR ALL DANGEROUS ACTIVITY ON PROPERTY iv. Indiana Harbor Belt Railroad Co. v American Cyanamid Co a) Facts Toxic chemical leaked from a RR tanker. RR shipper is held strictly liable b) Rule RS Sec 520 (below) and sees that there is no other alternative to shipping by rail c) Basis for liability under Second Restatement Sec 520 abnormally dangerous activities - One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land, or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm. This strict liability is limited to the kind of harm, the possibility if which

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B.

VIII. A.

B. C.

makes the activity abnormally dangerous. (Starting to look like negligence) Determinative factors Six facts to be considered and balanced. i) Whether the activity involves a high degree of risk of harm; ii) The likelihood that the harm that results from it will be great iii) Whether the risk can be eliminated by the exercise of reasonable care; iv) Whether the activity is a matter of common usage; v) Whether the activity is appropriate to the place where it is being carried on; vi) The value of the activity to the community. Defenses to Strict Liability i. Assumption or risk ii. Contributory negligence only when Pl knowingly and unreasonably subjects himself to risk iii. An act of god or natural act that caused injury iv. Latent defects in soil Liability for Defective Products Introduction i. Product liability applies when: a) Knowledge of the danger high foreseeability standard b) Knowledge that the product in its normal use will be shared by others c) Defs negligence proximately caused the harm d) Knowledge that the product wont be further tested ii. MacPherson v Buick Motor Co a) Facts defective wheel (made by another company) collapsed and whole car fell apart b) Rule one who negligently manufactures a product is liable for any injuries proximately caused by his negligence. Manufacturer of final product has obligation to make responsible inspection of product. Court abandons privity of contract requirement because of POLICY . iii. Escola v Coca Cola Bottling Co. a) Facts soda bottle broke in Pls hand b) Holding bottle breaking could have been avoided with adequate inspection. Manufacturer incurs absolute liability. nd iv. 2 Restatement 402(A) defective condition unreasonably dangerous a) risk utility analysis b) consumer contemplation test v. 3rd Restatement 1 a) reasonable alternative design Manufacturing Defects product is defective when it departs from its intended design Design Defects a design is defective when the foreseeable risks of harm posted could have been reduced or avoided by reasonable alternative design. i. Soule v General Motors Corporation a) Facts Pl suffered damage to legs when floorboards and wheel well collapsed after a crash b) Rule there out #2 RISK BENEFIT ANALYSIS because product in normal use may often cause injury in a way that minimum assumptions about safety can not be made. Threw out #1 CONSUMER CONTEMPLATION TEST because everyday consumer with everyday experience with normal use of car cannot possibly predict the minimum safety c) Risk benefit analysis balance the cost of curing the design defect with costs of injuries. If cost of resolving defect is less than the cost of injuries, then unreasonably dangerous d) Consumer contemplation (consumer expectation) test if Pl establishes that the product failed to perform as safely as an ordinary customer would expect when used in an intended or reasonably foreseeable manner then it is

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unreasonably dangerous

e) Reasonable alternative design Products Liability Restatement Pg 579

plaintiff must prove that a reasonable alternative design would have reduced the foreseeable risk of harm ii. Camacho v Honda Motor Corp, Ltd a) Facts pl bought motorcycle without crash bars. Crashed and injured his legs b) Rule consumer is justified in expecting that a product placed into commerce is reasonably safe for intended use c) Ct adopts CRASHWORTHINESS doctrine motor vehicle manufacturer can be liable or strictly liable for injuries sustained in accident where manufacturing or design defect, though not the cause of the accident, caused or enhanced the injuries. d) Ortho factors balance the risks and benefits of a product to determine if the design is unreasonably dangerous the usefulness and desirability of the product its utility to the user and to the public as a whole the safety aspects of the product the likelihood that it will cause injury and the probably seriousness of the injury the availability of a substitute product which would meet the same need and not be as unsafe the user's ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility the user's ability to avoid danger by the exercise of care in the use of the product the user's anticipated awareness of the dangers inherent in the product and their avoidability because of general public knowledge of the obvious condition of the product or of the existence of suitable warnings or instructions the feasibility on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance D. Safety Instructions and Warnings inadequate instructions a product is defective because of inadequate instructions or warnings when the foreseeable risks of harm posted could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller

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