Bowman Torts Outline

Tort Exam Answer Structure
1. What torts may have been committed?

2. Who parties are for each tort?
a. Discuss prima facie case for each tort (separately)
i. If P has not satisfied the case for each tort, then he loses.
ii. If P has satisfied the case then you move on.
b. Defenses – Are there any good affirmative defenses?
i. If there are none and P has satisfied his case, then he wins.
I. Introduction to Tort Liability

a. Goal
i. Compensate the victim – make him whole
ii. Deter tortuous acts
iii. Spread Losses
iv. Fairness (sometimes added) – provide clear rules
b. Categories
i. Negligence
ii. Strict Liability
iii. Intentional Torts
c. Hammontree v. Jenner (p. 3) (bike shop car accident)
i. Epileptic has accident, P argues for SL because only D would know about the potential
danger he poses to society – he takes the risk.
ii. Jury verdict for D.
iii. No S.L. for drivers, not like product liability, no exception for suddenly stricken (knew
about epilepsy): still unforeseeable for driver
d. Christensen v. Swenson (p. 18) (security guard car accident)
i. Security guard lunch accident, SJ for employer. S.Ct. reverses.
1. Doctrine of Respondeat superior (vicarious liability) – 3 criteria
a. Conduct is of general kind that employee is hired to perform
i. So it’s not just a “personal endeavor”
b. Employee’s conduct must occur substantially within hours and ordinary
spatial boundaries of employment
c. Employee’s conduct must be motivated, at least in part, by the purpose of
serving the employer’s interests.
II. The Negligence Principle
a. Historical Development of Fault Liability
i. Tort Law and the Economy in 19th Century
ii. Brown v. Kendall (p. 35) (dog fight)
1. dog fight; P wins – reversed
a. ORDINARY CARE. No recovery to P if
i. D & P using ordinary care
ii. D use ordinary care, P no ordinary care
iii. Neither D & P using ordinary care
b. Impact for industrial revolution – allow for risks of “progress”
c. If D has lawful, unintentional act, w/reasonable care = no recovery for
P.
b. The Central Concept
i. The Standard of Care
1. Adams v. Bullock (p. 40) (boy swinging wires, electrocuted)
a. P wins – reversed.
Torts Outline – Prof. Cynthia Bowman Adam King
Fall ‘06
b. Reasonable Foreseeability is rule used. D has duty to adopt all reasonable
precautions to minimize resulting perils.
i. Again, industrial revolution was key to decision.
c. Cardozo
2. Braun v. Buffalo (p. 41)
a. D had strung electric wires 25ft above vacant lot.
b. Insulation of wires expected to last 3 years.
c. 15yrs later, man dies from contact.
d. Question of fact: was it reasonably foreseeable?
3. Green v. Sibley (p. 42)
a. Woman stumbling over mechanic’s foot in store – not reasonably
foreseeable for the mechanic.
4. U.S. v. Carroll Towing Co. (p. 44) (B<PL)
a. Recovery for lost barge.
b. Bargee should have been aboard the barge – sufficient risk that it would
break free.
c. Negligence reasonably foreseeable.
d. When the Burden of adequate precautions is less than the gravity of the
injury multiplied by the probability of the resulting injury it is deemed
unreasonable. The owner’s duty is to provide reasonable care, under
ordinary circumstances, by a standard of care exercised by a reasonable
and prudent person.
ii. The Reasonable Person
1. Bethel v. NYC Transit Authority(p. 50) (wheelchair seat collapses on bus)
a. Duty of care for common carriers – still extraordinary? NO.
b. Reasonable person standard applies
i. Court scraps the whole “highest care” notion.
2. Consider deficiencies? NO
a. Vaughan v. Menlove
i. Hay stacked by retarded guy – this is NOT a defense
b. Bashi v. Wodarz
i. D flips out in her car, going crazy
ii. Mental defectives should pay for mistakes (not like Hammontree-
court is suspicious of mental problems)
c. Roberts v. Ramsbottom (p. 56)
i. Elderly man has stroke before going out to drive
ii. “if he retained some control, albeit imperfect control, and his
driving, judged objectively, was below the required standard, he
remains liable.”
3. Subjective Exceptions
a. Ellis v. D’Angelo
i. Four year old charged with shoving babysitter to floor.
ii. Common knowledge of mental development of 4yr old is that they
don’t have capacity to foresee possibilities of their conduct –
CAN’T be negligent at this age.
b. Dellwo v. Pearson
i. 12yr old drives motorboat
ii. “minors are entitled to be judged by standards commensurate with
age, experience, and widom when engaged in activities
appropriate to their a, e, and w, it would be unfair to public to
permit minor to observe other standards of care in these
situations.”
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c. Certain disabilities are taken into account: blind, deaf, crippled; essentially
becomes “reasonably prudent blind person” std.
d. Emergency Doctrine exception: Cabbie jumps when gun to his head – car
hits pedestrian. Reasonable? Hell yes.
i. Still is essentially RPP std., just in different context
c. The Role of Judge and Jury
i. In General
1. Baltimore & Ohio Railroad v. Goodman (p. 60) (run over by train)
a. Man struck at RR crossing
b. Nothing to indicate to relieve him of duty to check safety.
i. Contributory negligence used
c. P’s win is reversed.
d. Standard is you have to stop and look.
2. Pokora v. Wabash Railway Co. (p. 62) (run over by train on busy hwy)
a. Struck at RR crossing, D wins on directed verdict – reversed.
b. Question for Jury if reasonable caution forbade going forward in reliance
on the sense of hearing, unaided by sight.
c. Cardozo – Holmes shouldn’t be laying down rules –jury Q’s.
3. Andrews v. United Arilines, Inc. (p. 66) (stuff fell from overhead bin)
a. Briefcase fell from overhead compartment; dismissed – remanded
b. Injury was foreseeable (happened before), UAL took no action
c. B<PL? That’s for the jury to decide! You can make arguments either
way.
ii. The Role of Custom
1. Common practice is still not necessarily a conclusive or compelling test of
negligence. Jury must be satisfied with its reasonableness.
a. proof of common practice aids in forming society’s general
expectations; reflect judgment and experience of many
2. Except in malpractice cases, courts have rejected the argument that a prevailing
custom defines the standard of care.
3. Trimarco v. Klein (p. 69) (shower glass doors)
a. Man cut by shower door, P wins – reversed.
b. Was a custom that established a standard D bound to follow? Don’t need
prior notice or other accident.
iii. The Role of Statutes
1. Can also set standard of care: State defined conduct
2. 3 standards/procedural approaches to circumstances of statutory violation
set forth:
a. Some Evidence: jury can go either way b/c decides which side has
preponderance
b. reubuttable presumption
i. Have to find evidence of negligence unless
ii. Considers whether presumption has been rebutted
c. per se negligence (conclusive presumption):
i. Legis. said it, so neg. if don’t comply
ii. judge may decide himself or tell jury they must find
negligence
iii. Most states have standards set of per se negligence
1. But can be excused depending on situation
iv. Majority rule
d. Structure of Analysis for Statutory Violation
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i. To protect class to which P belongs?
ii. To protect particular interest invaded?
iii. To protect from kind of harm that resulted?
iv. To protect against the particular hazard that occurred?
v. Evidence of excuse?
vi. Common law negligence if not under the statute? (fall-back
position)
3. Martin v. Herzog (p. 75) (buggy w/o light)
a. Jury instruction were wrong
i. Jury instructed to consider the absence of light as some evidence
of negligence but wasn’t negligence in itself
1. omission of use of signals was definite negligence
according to statute – should’ve been told to jury.
2. can’t leave jury to decide whether no light was culpable or
not – jury can’t decide the duty of hwy traveler to another
traveler: that’s why we have statute!
4. Tedla v. Ellman (p. 78) (walking on wrong side of street)
a. Legislature created statutes to command standard of care when deems
traditional RPP note enough
b. Statute here doesn’t prescribe add’l safeguards which help rpeserve life
nor impose a higher standard of care  just provides rules of road for
usual circumstances
c. Under unusual circumstances, following statute might not be reasonable!
Might even be to own detriment
d. Negligence is failure to exercise care required by law  if statute
mandates standard of care then it has to be followed
e. On other hand, statutes don’t always give def. Standard of care – just
supplement common-law rule or if it regulates conflicting rights in a way
to promote public safety then w/o clear language it can’t be construed
inflexibly
f. If observance of statute would lead to more danger in situation, then we
can’t force people to follow it when it was created to help preserve their
lives.
iv. Proof of Negligence
1. Evidence – involve questions of proof/facts
a. Constructive Notice – D should’ve known
b. Actual Notice – D did know
2. P’s burden to show that D’s conduct fell below standard of rsnble care
3. Negri v. Stop and Shop, Inc. (p. 87) (spilled baby food)
a. P fell in D’s store and injured b/c broken glass and baby food on floor that
hadn’t been inspected/cleaned in awhile even though D knew about mess
b. Jury found D liable b/c enough circumstantial evidence to draw inference
c. App. Div. Wrongly dismissed case b/c evidence had to be viewed in light
most favorable to P and it was legit for jury to infer D’s liability
4. Gordon v. American Museum of Natural History (p. 88)(hot dog wrapper)
a. No evidence on record that shows D knew about condition so shouldn’t
have gone to jury
i. To constitute constructive notice, defect must be visible and
apparent and must exist for enough length of time prior to accident
so that D could find and remedy it
5. Res Ipsa Loquitor
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a. “The thing speaks for itself” = type of circumstantial evidence which gives
rise to a presumption of negligence just from the fact of the accident alone
b. Applicabale when
i. The accident wouldn’t have happened in the absence of the
negligence
ii. Instrumentality was within D’s control
iii. No contributory negligence on the part of P
c. Theories/Bases of Res Ipsa
i. Probability res ipsa: more likely than not so D must show there
was some other cause
ii. Access res ipsa: if more info is necessary to explain the accident,
D is likely to have it, not P.
d. Way to establish facts and get inference from them
i. We don’t know what led to accident
ii. We don’t know exactly what D did that was negligent
e. Certain way a court may treat a statutory violation (states differ)
i. Inference states: Majority Rule
1. Plaintiff has made prima facie case for negligence, can’t
dismiss
a. Goes to jury, which can either draw the inference
of negligence or reject it.
ii. Presumption States: like California
1. res ipsa raises presumption of negligence, may formally
shift burden of proof
a. so D must present evidence to rebut in order to get
a jury/judge to dismiss
f. Byrne v. Broadle (p. 92) (flour barrel)
i. Barrel of flour fell on P’s head while walking next to D’s flour
shop
ii. An accident alone can be prima facie evidence of negligence
1. it is up to D to show facts that would make it inconsistent
w/negligence.
g. McDougald v. Perry (p. 95) (spare tire fell off)
i. RIL in an auto case – tires don’t just fly off of trucks
ii. W/in D’s control to tell what happened – does he have the
evidence?
1. no b/c the chain, etc. wasn’t preserved
2. when evidence in D’s control and he no longer has it
(unless it blew up) – we’re allowed to infer that the
likeliest thing is that it worked against him so it magically
“disappeared”
iii. injury can permit inference of negligence if together with strong
showing of its immediate cause.
iv. Based on:
1. past experience: general knowledge that such events don’t
occur w/o negligence
2. expert testimony shows that situation wouldn’t normally
happen
v. P not required to eliminate w/certainty all other possible causes or
inferences.
h. Ybarra v. Spangard (p. 102) (bunch of Drs/Nurses; med malpractice_
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i. RIL needed in malpractice cases b/c otherwise patient can’t
recover unless Drs/nurses voluntarily disclose the identity/facts
establishing liability in situation
ii. First and Thrid RIL conditions fulfilled
1. 1st: accident must be kind which doesn’t ordinarily happen
w/o someone’s negligence
2. 3rd: must not have been due to any voluntary
action/contribute of P
3. 2nd condition:
a. D argues that since P can’t show the injury was
caused by instrumentality in D’s control b.c can’t
pinpoint which instrumentality and which D
i. S.C. rules that this alone cannot determine
whether doctrine applies since P was
unconscious, burder of initial explanation
is on D.
ii. Test of actual control of instrumentality
not strictly followed
iii. Right of control is more imp. Test.
iii. If court didn’t hold for P, then P’s would never win when put
unconscious at hands of Drs.
i. DEFENSE TO RES IPSA: ATTACK FACTS, PROVE ACTUAL CAUSE
was something else
v. The Special Case of Medical Malpractice
1. Drs get higher standard of care b/c have specialized knowledge and skill
2. Whether D acted in conformity w/common practice w/in his profession =
heart of the suit
a. P must prove what standard is usually used and that D strayed from it
i. Expert witnesses almost always necessary
1. only they can explain the intricacies in order for jury to be
able to make a judgment b/c layperson doesn’t know the
issues well enough to make it on their own
2. role of custom when dealing w/professionals is hgue b/c
est. standard of care
3. Sheeley v. Memorial Hospital (p. 111) (overqualified expert)
a. D argued that P’s expert was overqualified, outdated, and not of similar
locality
i. Medicine is more nationalized now, so we can’t tolerate this
argument. Rural medicine shouldn’t be held to lower standard
than city.
b. Expert will say what the standard is and how this D deviated from it.
i. Nothing in statute req. expert to be in same specialty as D 
unnecessary burden
c. Hospitals can be negligent for failing to use reasonable care to keep
facilities safe or select/retain competent physicians
d. Still have to understand the limitations of the community, such as
available equipment when considering what is “reasonable.”
e. lot of cynicism as to the battle of the experts. Basically a dr.-for-hire.
Though you can cross-examine the expert about all the cases that he
testified about.
4. States v. Lourdes Hospital (p. 119)
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a. Question of whether expert estimony can be used to educate jury as to
likelihood that occurrence would take place without negligence where a
basis of common knowledge is lacking.
b. Court holds “yes.” Experts medical testimony to inform the jury’s
decision on this element of res ipsa loquitur.
c. Expert opinion does not negate the jury’s ultimate responsibility as finder
of fact to draw the necessary conclusion. Burden of proof is still on P. D
could have expert witnesses as well to tell that there might be an inherent
risk of the surgery and that it isn’t wholly preventable.
5. Informed Consent
a. Type of medical malpractice (negligence) case in most states
b. Issues arise when:
i. Risks in treatment
ii. Dr knows of risks and alternatives
iii. Dr does not tell patient about them
c. Don’t need expert to testify about custom of what Dr’s do b.c rules deal
w.duty to disclose
d. Rely on jury to put themselves in objective position of reasonable patient
e. Failure to obtain informed consent – 3 parts to this case:
i. Duty – differs if professional or reasonable patient standard
ii. Breach
1. need expert to say how person deviated from standard
2. failure to inform
iii. Causaution
1. reasonable patient standard comes in
a. that it wouldn’t have made nay dif. To decision to
undergo the procedure or not
iv. For Doctor Defense, need to show:
1. Detrimental to the patient to disclose
2. Implied consent
a. Emergency situation or incompetent patient
i. Limiting b.c suppose to get consent from
patient or person who can speak for a
patient so can only be used when decision
needs to be made quickly
3. Unknown risk  if risk that led to injury was quite
rare/small then a defense
a. E.g. are we really going to make Drs point out
every single possible injury that can result from
treatments?
4. dispute prima facie case: no risks, patient knew about
them, didn’t cause…
f. Matthies v. Mastromonaco (p. 123) (bedrest v. surgery decision)
i. Whether informed consent req. a Dr to obtain the patient’s consent
before implementing a nonsurgical treatment?
ii. Whether Dr should discuss reasonable alternatives w/the patient if
doesn’t necessarily recommend them
iii. Old lady fell and broke hip; Dr said “bedrest” instead of surgery
1. didn’t tell patient about surgery as an alternative
iv. expert said bedrest not advisable unless patient doesn’t expect to
be able to walk again
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1. patient says wouldn’t have consented to bedrest if knew
about not walking again
v. Ct. decided informed consent applies to all procedures b/c patient
should make informed decision after hearing all risks/possibilities
1. Dr’s failure to inform is breach of professional
responsibility – medical negligence
2. what would reasonably prudent patient do if knew the
risks in an alternatives??
g. Competing standards regarding informed consent
i. Professional standard approach: what RP dr. in that community
would disclose
1. Rationales
a. Consistent with medical malpractice rule
b. Protect patients from anxiety.
ii. Reasonable Patient Approach: P must show:
1. material risk
2. failure to disclose
3. disclosure would’ve led reasonable patient to reject
pcoredure/pick dif. Treatment
4. duty to disclose, whatever the custom
a. rationales
i. right to control over body
ii. rely on doctor for information but right to
chosoe
iii. ideas about bodies may be very indvidual
III. The Duty Requirement: Physical Injuries
a. Introduction
i. General Duty of Care exists toward others
1. misfeasance: the commission of a wrongful or unlawful act involving or affecting
the performance of one’s duties, i.e. action harms someone
2. nonfeasance: the failure to do something that should be done, esp. something that
one is under a duty to do, i.e. non-action harms someone. If accused, can argue no
duty of care.
ii. Possible Basis of Duty to Aid
1. Special Relationship
2. “Undertaking”
a. start to rescue, then must use reasonable care and/or not leave worse off
than when started
3. Reliance
a. Cases where assume someone is doing something but they don’t; if not
relying on them, would’ve made other arrangements (ex: sheriff not
warning; manager not call re wife in labor)
b. Obligations to Others
i. Harper v. Herman (p. 134) (guest on boat)
1. affirmative duty to act only arises when special relationship btw parties
a. Harper should’ve proved this but he was just on Herman’s boat as a guest
– not special
2. Special relationship when duty to warn exists normally = common carriers,
innkeepers, possessors of land open to public, persons who have custody of
another person
3. No evidence in this case shows anything to provide duty to warn
a. Superior knowledge of a dangerous condition by itself w/o duty to
provide protection is insufficient to establish liability in negligence
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ii. Farwell v. Keaton (p. 140) (companions on social venture)
1. F & Seagrist companions on social venture, so implicit understanding that will
render assistance to other when in peril if can w.o endangering himself, otherwise
shocking to human norms
2. “undertaking” – voluntarily takes charge over another
a. started taking care of him but he stopped
c. Obligation to 3rd party
i. Randi W. v. Muroc Joint United School District teacher=molestor (p. 148)
1. Prior employees had duty of reasonable care in recommending teacher for future
position
a. Even though no special duty or known specific threat, still had to use
ordinary care to prevent others from being injured
i. The prior employers withheld information and made misleading
misrepresentations
b. The school district relied on the info given and the prior employers knew
they would
ii. Tarasoff v. Regents of University of California (p. 157) (shrink duty to victim)
1. If therapist has or should have determined (some states require actual knowledge)
that patient poses serious danger of violence to others then:
a. Duty to exercise reasonable care to protect foreseeable victim
i. Victim must be known or identifiable
iii. Rowland v. Christian (factors when to impose duty to 3d Party)
1. Foreseeable harm to IDENTIFIABLE plaintiff
2. plaintiff suffered injury
3. connection between Defendant’s conduct & injury suffered
4. moral blame – not just negligence
5. policy of preventing harm
6. burden on Defendant
7. consequences to community of imposing duty
8. availability of insurance
d. Fraud or Negligent Misrepresentation: Elements
i. Giving of false information to another
ii. Knowing it is false,
iii. Reasonable reliance by another party upon that information
iv. Resulting in damage to them
e. Negligent misrepresentation duty runs to 3rd party only if affirmative misrepresentation that
presents foreseeable & substantial risk of physical damage
f. No Duty Based on Policy
i. Strauss v. Belle Realty Co. (p. 176) (NYC blackout, fall in apt bldg)
1. NYC power outage case where guy fell in apt. bldg  co. not held liable
2. Policy Considerations
a. Even though arguably D has duty to P, cts. Have to control legal
consequences of wrongs and protect crushing liability
3. Privity of Contracts  Cts typically have declined to extend duty of care to
noncustomers
g. Landowners and Occupiers
i. Common Law Categories of duties owed to those coming onto land
1. Trespasser (no permission)
a. No duty or very limited duty owed (unless known trespassers, children,
etc.)
b. Can’t willfully/wantonly try to hurt them
2. Licensee (gratuitous license)
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a. Includes social guests and relatives
b. Duty to warn, protect against known danger
3. Invitee (comes in same way related to your interest)
a. Duty to use reasonable care to make premises safe
i. To use reasonable care to protect against dangers landowner
could discover by inspection and to fix them
ii. Generally, becomes invitee when possessor invites with the
expectation of a material benefit from the visit or extends an
invitation to the public generally.
iii. Stitt v. Holland: “prospect of pecuniary gain is a sort of quid pro
quo for the higher duty of care owed to invitees
b. Defenses: “open and obvious harm” – courts are mixed on this, so the
argument could go either way, but some courts think that no duty is owed
since danger was apparent to invitee. Others say that no duty unless
possessor should anticipate the harm despite such knowledge or
obviousness.
4. The possessor’s intention in offering the invitation determines the status of the
visitor and establishes the duty of care the possessor owes the visitor.
ii. Carter v. Kinney (p. 195) (Bible Study)
1. Obvious ice on the driveway – had been shoveled the night before – was for a
bible study and general member of the group, NOT an invitee, just a social guest
(licensee)
2. don’t have any obligation to make house safer for anyone coming there than it is
for you
iii. Heins v. Webster County (p. 201) (fall in front of hospital)
1. P denied recovery simply b/c licensee and not invitee
a. Hosptial wouldn’t have undue burden to care for social visitor like P b/c
was already exercising reasonable care for its invitees (i.e. everyone uses
the same front entrance).
2. 7 factors to consider to evaluate if Reasonable Care has been used:
a. foreseeability of harm
b. purpose for which entrant entered premise
c. time, manner, circumstances under which entrant entered
d. use to which premises are put or expected to put
e. opportunity and ease of repair/correction/giving warning
f. burden in terms of inconvenience/costs in providing adequate protections
iv. Duty of Landowners to protect others on land from criminal acts of 3rd parties
1. Kline v. 1500 Mass Ave (p. 210)
a. Cut back on security precautions and then P was assaulted in hallway
b. Does landlord have duty to protect tenant against Crim acts of 3rd party?
i. Look at foreseeability!
ii. Recognized duty on part of landlord based on policy grounds
1. tenant can’t do it for themselves and LL is in situation
where they can and the police really aren’t b/c it’s interior
bldg security
2. Posecai v. Wal-Mart Stores, Inc. (p. 211) (mugged in parking lot)
a. balancing test:
i. If high foreseeability then greater burden  Used here
ii. Seeks to address interests of both bus. and their customers by
balancing foreseeability of harm against the burden of
imposing duty to protect against crim acts of 3rd person
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b. Wal-Mart owed no duty. P has burden of proving the duty
defendants owed under the circumstances
IV. The Duty Requirement: Non-Physical Harm
a. Emotional Harm
i. Falzone v. Busch (NEW JERSEY, 1965, p. 264)
1. no longer requires physical impact
a. so long as reasonable fear of immediate personal injury
i. broader than zone of danger
b. provide compensation for emotional distress when
i. the emotional distress is intentionally or reckless inflicted
ii. when the emotional distress results from phy injury negligently
inflicted
iii. when negligently inflicted emotional distress results in physical
injury
2. Zone of danger test (Bovsun – NEW YORK, 1984, p. 292, note 6)
a. Says that as long as 3rd party is in the zone of danger, there will be
liability. But this is a way of limiting liability – immediate family
member who is in zone of danger.
b. Allows one who is himself threatened w/bodily harm in consequence of
D’s negligence to recover for emotional distress resulting from viewing
the deat/serious phy injury of a member of his immediate family
i. Limits liability
3. Require consequent physical injury
a. What harm results, serious or trivial?
b. What type of proof required?
c. Gammon v. Osteopathic Hospital of Medicine ( MAINE, 1987, p. 281)
i. Establishes two new factors – foreseeability and reasonable
person.
ii. He didn’t go to Dr, but clearly anyone would suffer from
this.
iii. Foreseeability has to do with the “ordinarily sensitive
person” not the eggshell plaintiff
4. Direct vs. Indirect Victims – bystander claims allowed by 3rd parties
a. New York Bystander Actions
i. Zone of Danger (3d party could have been injured)
ii. Immediate family
iii. Serious and verifiable distress
b. California
i. Dillon v. Legg (1968)
1. 3 factors determine whether emotional injury is
compensable bc foreseeable
a. P near scene of accident
b. Direct emotional impact upon the P from the
sensory and contemporaneous observance of
the accident
c. Close relationship b/w victim and P
2. Thing v. La Chusa (1989)  narrows Dillon b/c
recovery should be limited
a. To relatives residing in same household or
close family relationship
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b. Viewing of the consequences of an accident
was insufficient – so have to be at scene and
aware that even was causing the injury
c. Distress has to be level beyond disinterested
witness, but not abnormal
c. New Jersey
i. Portee v. Jaffee (1980) – 4 elements
1. Death/serious physical injury of another caused by D’s
negligence
2. Mairtal or intimate familial relationship b/w P and injured
person
3. Observation of the death/injury at the scene of accident
4. Resulting severe emotional distress
b. Economic Harm
i. Courts haven’t protected econ interest as extensively as phys security of person/property
ii. Glanzer v. Shepard  Cardozo
1. seller has contracted with P to seel beans
a. D = public weigher who has contract with seller to weigh beans for sale;
error in weighing, weighed less than said, so P overpaid and sues D to
recover overpayment
2. P can recover b/c D had duty that extended to 3rd party b/c:
a. D had knowledge of prosepective use of the information
b. D acted to induce P’s action
c. D made representation directly to P
3. Different from other cases b/c
a. Involves finite liability and relationship approaching privity
iii. Test 1:
1. Duty to 3rd party case, e.g. D owes duty or service to X, which D performs
negligently, and P, a 3rd party to the K, suffers economic loss
iv. Nycal Corp. v. HPMG Peat Marwick (p. 306)
1. P filed civil complaint against D seeking damages and costs incurred as result of
alleged reliance on auditors’ report
2. 3 tests to determine duty of care owed by accountants to nonclients for common
law or statutes in other jurisdictions
a. foreseeability test  broad standard of liability, generally disfavored
i. accountant can be held liable to any person whom the accountant
could’ve reasonably foreseen would obtain his opinion and rely on
it
b. near privity test
i. limits accountant’s liability to any person whom the accountant is
in privity or in a rel’p sufficiently approaching privity
c. test in Statute 552 of restatement (2nd) of torts – test to use
i. accountant is liable for economic loss caused by reliance on
negligently inaccurate information supplied if:
1. identified recipient about whom accountant knows
2. relies on the information in transaction
3. acct. knows about the particular transaction the info is
intended to influence
v. Test 2
1. D creates a dangerous condition or physical harm to one party, and as a result P
suffers economic harm – no contractual or 3rd party benefiary relationship to D.
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vi. 532 Madison Avenue Gourmet Foods, Inc. v. Finlandia Center, Inc. (p. 317)
1. Closure of streets as a result of building collapses. Is building liable to stores in
the area?
2. Court essentially limits liability to only those who are actually injured.
3. “Absent a duty running directly to the injured person there can be no liability in
damages, however careless the conduct or foreseeable the harm.
a. We want to avoid exposing D’s to unlimited liability to an indeterminate
class of persons conceivably injured by any negligence in a D’s act.
V. Causation
a. Cause in Fact
i. Introduction
ii. “But for” cause
1. If the harm would have happened even without D’s negligent conduct, then D’s
negligence did not cause it – thus cause of action for negligence must fail.
iii. Statistical Probability
1. Problem  All-or-Nothing approach
a. Overompensation  ppl compensated even tho would’ve gotten disease
anyway
b. Undercompensation  no one compensate even though some got disease
only b/c circumstances
2. Solution  Proportional Recovery
a. Mauro: if 50+ chance of getting future disease, get full recovery now
b. Petriello: proportional recovery even if <50%
c. Two lawsuits rule: wait until disease develops and sue later
iv. Substantial Factor
1. To prove causation, P must generally show:
a. That the D’s negligent act/omission was a “but for” cause of the injury
b. That the negligence was causally linked to the harm
c. That the D’s negligent act/omission was proximate to the resulting injury
v. Stubbs v. City of Rochester (reasonable cause)
1. Just need to have reasonable cause that the D caused the harm. If jury/judge
believe so, it’s good. (don’t have to rule out every other possible cause)
vi. Zuchowicz v. United States (p. 347) (Daubert Factors and Substantial Factor Causation)
1. Assessment of expers requires looking at 4 Daubert factors outlined by Sup Ct.
a. Whether the theory can be/has been tested according to the sci method
b. Whether the theory/technique has been subjected to peer review
c. In the case of a particular scientific technique, the known potential rate of
error
d. Whether the theory is generally accepted
2. Substantial factor causation  to prove causation, P must generally show:
a. That the D’s negligent act/omission was a “but for” cause of the injury
b. That the negligence was causally linked to the harm
c. That the D’s negligent act/omission was proximate to the resulting injury
b. Alberts v. Schultz (p. 360) (loss of chance)
i. A claims a loss of chance is predicted upon the negligent denial by a healthcare provider of
the most effective therapy for a patient’s med prob
1. Under the loss-of-chance theory, the malpractice has obliterated/reduced the odds
of recovery that existed before the malpractice.
a. It is the lost chance of avoiding the injury and achieving a better result that
becomes the item of value for which the patient seeks compensation. (not
the physical harm itself)
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Fall ‘06
2. Test to est. loss of chance still requires showing: duty, breach, loss/damage, and
causation
a. The causal connection b/w the negligence and the resultant injury must be
medically probably and est. w/proof  will need expert witness
ii. Proportional Damages: % value of P’s chance for better outcome prior to negligent act (%
difference from before and after – determined by expert)
c. Joint and Several Liability (Multiple Defendants)
i. Cases in which more than one relevant cause may be involvedi n the harm of the P
1. Join and several liability:
a. P can recover the whole amount of damages from either of two (or more)
D
i. So if one is bankrupt or absent, P still gets full recovery from the
other
2. Several Liability:
a. P may only recover the amt of damages for which that D is responsible
under comparative fault
i. So may not receive full recover (D doesn’t have resources)
ii. P bears risk of insolvency of any D (whereas joint, the other D’s
bear the burden)
3. Comparative Negligence (replaces contributory negligence)
a. Having D’s obtain contribution from each other in proportion to their fault
b. Makes less unfair to Ds when one party is insolvent and make less all-or-
nothing for Ps.
c. Jury asked to allocate btwn parties how much each was at fault and
allocate damages accordingly
4. Dif. States have different remedies (p. 372)
a. Joint and Several
b. Separate Only
c. Joint and several but reallocate uncollectible among remaining parties
d. Joint if % at fault is 50+; separate if <50%
e. Joint and several for economic damages but not for non-economic
damages (California/few others)
ii. Multiple Defendants
1. Concert of Action Theory
a. Classic example: Drag racing cars
b. Everybody has agreed to engage in negligent enterprise
c. Whole enterprise is the “but for” cause of the harm
2. Summers v. Tice (p. 375) (gunshots, comparative fault)
a. Jumps question of causation
b. Finds both Ds negligent and liable for full amount
i. If Ds actually knew who caused what, one would have to disprove
ii. Effectively shifts the burden of proof back to D.
c. Ds can split costs among themselves either thru suit or contract b/c P only
getting money from one of the D.
d. The policy favors compensation of Ps even if it means breaking loose of
trad’l standards of causation.
3. Hymowitz v. Eli Lilly & Co. (p. 379) (market share liability)
a. Market Share Liability
i. Latent nature of the injuries and identification of manufacturer
was impossible.
ii. Shift the burden to D because no one would recover – Ds would
just be silent – they have the info!
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iii. D’s can pay damages according to % of nat’l mkt they had at time
P’s mother took pills.
1. In both Cal & NY, liability several, not joint
a. Shouldn’t be inflated when all participants in the
mkt aren’t before the court in particular case
b. CA: Each pays damages in relation to the
approximate likelihood they caused the harm
i. Ds can exculpate self, e.g. prove never
sold in that market
c. NY: Each pays in relationt o the risk of harm they
created rather than the likelihood they caused the
harm in this case.
i. Not a defense if D can prove it did not
manufacture or market the drug taken by
the P – just share of nat’l market
b. Limited to cases when:
i. mass tort
ii. manufacturers acting in parallel manner
iii. product indentical, generically market products, which
interchangeable
iv. causing injury many years later, so can’t identify one of many
v. legis. Showed interest in damage recovery by reviving previously
barred claims
d. Proximate Cause (or “legal causation”)
i. Generic rule = D is liable for foreseeable harm
1. but need not foresee exact manner, extent of harm, or victim
ii. Either P made duty, breach, and cause in fact or D can’t est. absence of any as a matter of
law
1. D will argue that the admitted/assumed negligence wasn’t the proximate cause of
P’s harm
iii. 3 ways to talk about Proximate Cause
1. Extent or type of harm
a. Idiosyncratic reaction
i. Benn v. Thomas (p. 401) (idiosyncratic reaction)
1. A tortfeasor whose act, superimposed upon a prior latent
condition, results in an injury may be liable in damages
for the full disability
2. Deems the injury, not the dormant condition the
proximate cause of P’s harm
3. aka, eggshell plaintiff – D must take P as he finds him,
even if means must compensate for damage much beyond
what ordinary person would suffer, or which foreseeable.
a. Exception to foreseeability on proximate cause
b. Aggravation of secondary add-on harm
i. Pridham v. Cash & Carry Bldg. Center
1. P seriously injured by D’s negligence but died on
ambulance trip bc it crashed
a. D held liable for death
c. Unexpected types (or extent) of harm to expected victims
i. 2 lines of precedent
1. Polemis - direct causation – extending liability;
(unexpected harm to expected victims)
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Fall ‘06
• Type of harm? Ship and Cargo destroyed
• Manner of harm? D drops wooden plank into hold
of ship that is full of petrol vapor  explosion and fire
• D’s argument against liability? Prox cause: too
remote and unexpected to lose ship from dropping a plank
• Rule: Liable for all harm that was directly
caused
2. Wagonmound I – foreseeability – limiting liability
• Type of harm? Fire burned P’s wharf.
• Who were D’s? Charterers of ship WM, which spilled oil
in Harbor.
• Manner of harm? Several days after spill, P’s worker
dropped molten metal onto cotton waste in water, which
started fire which burned P’s wharf.
• Rule: Liability must be limited to foreseeable risks.
o Here it was not foreseeable that D’s negligence
(oil spill) would result in a fire
3. Wagonmound I vs. II
• Wagonmound I: Wharf owner can’t prove it was
foreseeable
o This would amount to proving own cont. neg. b/c
resumed working with torches
• Wagonmound II: P was owner of Corrimal, boat that
burned at the wharf, so no problem with contributory
negligence.
o P pleads that fire was reasonably foreseeable, and
o Judge found that it was, so they got their damages
2. Superceding Causes
a. Intervening conduct of intervening actor doesn’t supercede orig. neg. of
the 1st person
b. Key = D2’s knowledge of risk
c. Derdiarian v. Felix Contracting Corp
i. P = worker at worksite, injured by scalding
ii. D1 = negligent employer who did not erect required barrier
iii. D2 = negligent driver (did not take epilepsy medication) drives
into worksite, hits kettle, splatters and scalds P.
iv. D1 argues lack of proximate cuase
v. Issue: Does D2s negligence “break the chain of causation”?
Superceding cause?
vi. H: No – harm is of sort foreseeable
1. manner of occurrence does not matter
a. what risk did D take in negligent setup of
worksite?
i. That worker would be injured
b. What is hard to foresee? Exactly how it happened,
the manner
d. McLaughlin v. Mine Safety Appliances Co.
i. Fireman’s intervening gross misconduct – knew to insulate block
– didn’t tell nurse
ii. Intervening gross misconduct of D2 breaks the chain of
causation and D1 (i.e. the company) is no longer liable.
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e. Caitlin
i. D1 = supplier of kerosene who’s negligent b/c mixed 2 substances
ii. D2 = guy selling it
iii. P – buys it from seller and it blows up
iv. D2 knew of the problem b/c 2 deliveries (and first was sent back)
v. D1 negligence + D2 knowledge of risk = D1 not liable.
f. Rosebrock
i. D1 had shipped transformer to D2 and had negligently failed to
warn that it was being shipped w/wooden blocks that had to be
removed
ii. D2 is negligent b/c sold w/them and the P used it w/blocks
iii. D2 just simply/ordinarily negligent and doesn’t break
causation
iv. D1 negligence + D2 negligence = D1 liable (so is D2)
g. Hines v. Garrett (Hoboes Hollow”)
i. The “except” of intent  Hobos Hollows
ii. Rape is intentional crime so should make RR company not
negligent and not liable.
1. Ct. held not true b/c harm that occurs is due to risk the
D1 (conductors) created
Foreseeability in Court iii. Intervening Action breaks the chain of causation when:
P describes in general terms 1. Intentional, maybe even reckless or gross negligence
D describes in specific terms a. B/c = knowledge and conscious disregard of risk
2. NOT if the intervening wrong is both
a. Foreseeable, and
General = foreseeable
b. The principal hazard which the original
Specific = unforeseeable negligence created (Hobo Hollow)
i. D1 is still liable even if the intervening
conduct was criminal.
h. Doe v. Manheimer (p. 416) (Rape in Yard)
i. Court won’t extend scope of foreseeable risk presented by
“obnoxious overgrowth” or accumulated debris beyond
injury produced by physical contact with such conditions.
ii. The yard did not CAUSE the rape.
A. Spectrum of Intervening Conduct
B. Negligence
Intent
1)intervening negligent (3)Traxler (2)intentional
conduct (d/n matter closer to intent end: D1 usually won’t be
to D's liability) knowledge -- could liable (except Hobo)
be classified with -breaks chain of causation
3. Who is Hurt – and When? Unexpected Victims
a. Palsgraf v. Long Island Railroad Co. (p. 425) (fireworks at train
station)
i. Cardozo: NO question of Prox cause b/c no duty  end of case
ii. Case should be analyzed as Q of duty:
1. only owe duty to each person to whom a reasonable
person would foresee a risk of harm under the
circumstance
2. P here was not foreseeable because she was not in
apparent zone of danger
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Fall ‘06
iii. Andrews: D owes society at large a duty of care
1. more plaintiff-oriented
2. broader – so more extended liability
iv. Q of proximate cause
1. foreseeability of result just one factor
2. also have to take into account:
a. intervening forces
b. remoteness in time, space
c. continuous sequence of events
3. Doesn’t matter if unusual, unexpected, unforeseen, and
unforeseeable
a. One limitation: damages must be so connected
w/the negligence that the latter may be said to be
the proximate cause of the former.
Look to Kinsman for blending of Polemis, Wagonmound, and Palsgraf.
Generally, the manner and extent of an injury do not have to be foreseeable unless
there is an intervention that is egregious. E.g. man knowing the gas and kerosene was
mixed and under wagonmound and palsgraff, the harm would have to be foreseeable.
b. Petition of Kinsmen Transit Co. I (p. 437)

i. D’s:
1. boat: Shiras owners, Kinsman transit – moored negligently
in circumstances
2. dock – Continental grain, dock owner – defective device
on mooring block
3. city – Buffalo, negligent in not opening bridge into which
ships crashed
ii. Liability:
1. Court holds Ds liable for property damage from flooding
2. Polemis:
a. If harm to P foreseeable, then liable for broader
consequences…
b. A marriage of Palsgraf and Polemis
i. Harm to P was foreseeable (Cardozo)
ii. Then liable for all the damages
(Polemis/Andrews), though unforeseeable
c. Kinsman Transit II
i. P’s = wheat shippers who couldn’t remove & corn transporter who
couldn’t unload.
1. suffered economic loss
ii. Denied recover as Question of Proximate Cause b/c no duty to
protect Ps from economic loss.
2. Defenses
e. The Plaintiff’s Fault
i. Contributory Negligence (440)
1. Trier users an adapted risk calculus to determine reasonableness of P’s conduct
a. Conduct must be an actual cause of P’s harm
b. P’s negligence must also be proximate cause of P’s harm
c. Negligence by P does not bar recovery for intentional wrongdoing by D
2. Brown v. Kendall
a. P had burden of proving freedom from contributory negligence
i. Now, virtually all states have moved burden to D
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3. Trad’l negligence law operated on all or nothing basis
4. Statute: Where statute is intended to protect P, cont. negligence is not available as
a defense
ii. Limitations on Contributory Negligence (442)
1. Recklessness (similar to intent – so reckless as intending to cause harm)
2. Last Clear Chance
a. Contr. Negligence disregarded under circumstances when P behave
carelessly and got into a danger situation that led to injury
3. Refusal to impute Contr. Negligence
a. Respondeat superior – vicarious liability
b. Virtually all imputed contr. Neg. has been eliminated over the years
4. Jury’s Role
a. Increased frequency with which cts found that reasonable persons could
differ over the characterization of the P’s conduct – so that a jury question
was presented.
iii. Comparative Negligence
1. Some states abandoned Cont. Negligence  Comparative Negligence
a. Negl. P’s recovery depends on how serious P’s neg. was compared to Ds
b. Most states refuse to compare intentional wrongdoing by D with
negligence by P
c. Compare negligence v negligence, neg v reck (in pure), NOT neg v
intentional act (if Π is neg and ∆ is intentional, Π % neg doesn’t
matter)
d. Economic Loss – occasional doubt about whether the principles here
apply, but generally they do.
e. 3 Principle Versions of Comparative Negligence
i. Pure Comparative Negligence
1. Π 90% blame, recover 10%
ii. Modified System
1. Modified 2 - Π fault must be < 50%
iii. Modified System (2)
1. Modified 2 - Π fault must be < 50%
2. Fritts v. McKinna (dr. can’t avoid liability idiot patient)
a. Dr. can’t avoid liability for negl. treatment by asserting that patient’s
injuries were originally caused by his own negl.
i. Patient still entitled to non-negligent med. treatment.
b. But, history of substance abuse is relevant to issue of damages.
iv. Avoidable Consequences
1. About damages, not liability
2. Even if accident entirely D’s fault, P’s recovery might be reduced by failure to
mitigate
a. Ct – crucial line was btwn treatments that involved recognized risk and
those that didn’t
i. Duty to mitigate applies in latter, but not former case
3. avoidable consequences versus primary causal contribution
a. P smokes and installs asbestos  gets cancer = question of causation
i. P gets asbestosis, told not to smoke, smokes anyway
1. gets cancer= = avoidable consequences (reduce damages)
4. Anticipatory avoidable consequences
a. Failure to take precaution against injury prior to the accident, rather than
mitigate after
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Fall ‘06
i. Problem: D = negligent driver. P doesn’t wear seat belt. Suffers
$200,000 damages rather than $20,000 b/c not wearing belt.
1. instruct jury that must:
a. reduce $20,000 by P’s own negligence
b. Partial reduction of $180,000 (up to 50%)
according to rules of state
5. It isn’t the place of the ct/jury to evaluate a patient’s reasons for declining
surgery/treatment if risks are recognized.
a. Raises special problems when reasons ppl don’t mitigate by treatment is
b/c of religion.
i. Some argue for eggshell plaintiff treatment
ii. Others say should be taken into consideration with everything else
iii. Others say that you have to look at who suffers
f. Assumption of the Risk
i. Voluntariness by P
ii. Knowledge of Risk by P
iii. Express Agreements
1. Exculpatory or hold-harmless agreement
a. Parties agree in advance that D doesn’t need to exercise due care for P’s
safety
b. Validity:
i. Was agreement clear and unambiguous? Terms clear?
ii. Did nature of risk and risk encountered fall within terms of
agreement?
iii. Does agreement violate policy?
1. Tunkl factors
a. Disclaim invalid (against public policy) if:
i. Business suitable for public regulation
ii. Service of great importance to public
iii. Open to the public
iv. Party seeking disclaimer has a decisive
bargaining advantage
v. Standardized agreement, no way to
bargain over protection
vi. Person or property is subject to risk of
negligence by seller
c. Only ordinary negligence can be waived, not gross negligence or
recklessness
2. Dalury v. S-K-I, Ltd. (p. 467) (injured skier)
a. Must consider totality of circumstances against societal expectations
b. Exculpatory agreement shouldn’t be upheld b/c facility is open to public
c. Major pub. Policy implications are those underlying the law of premises
liability
i. Business owner has a duty of active care to make sure that its
premises are in safe and suitable condition for its customers 
increases if risks of operations is high
d. Policy rationale:
i. Place responsibility for maintenance on those who own/control
with ultimate goal of keeping accidents to min. level possible
1. if Ds permitted to obtain broad waivers of their liability,
the incentive for them to manage risk would be removed
and public would have to bear those costs.
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Fall ‘06
e. Gross negligence or recklessness can never be disclaimed
iv. Implied Assumption of the Risk
1. P must know of risk and voluntarily consent to it
2. Murphy v. Steeplechase Amusement Co. (p. 475) (Flopper)
a. RISK was fall, was FORESEEN by PLAINTIFF
b. D not negligent, not many other accidents – cannot prove prima facie case
c. Volenti non fit injria – person knowingly and voluntarily risks danger.
3. Participants in Sporting Activities
a. Duty to avoid injury from reckless or intentional conduct
b. Assume foreseeable or natural risks
4. Sporting Events
a. Baseball park – foul balls, B>PL costs too high!
i. Fulfill duty by placing limited screen behind home plate
ii. Some states have statutes disallowing recovery unless willful
conduct or negligent screen – encourage sporting activities
b. Hockey rink HYPO – Plaintiff struck by puck, has no knowledge about
dangers
i. D duty to post warnings (higher duty than baseball?)
ii. Knowledge of risks (P from MN) can sub for posted warnings
5. Roberts v. Vaughn (Firefighter Rule)
a. Bars firefighters from recovery for injuries sustained as a result of negl.
that gave rise to their emergency duties. Doesn’t apply to volunteers
i. Rationale:
1. firefighters paid to confront dangers & rescue ppl from
neg. caused situations
2. they are paid to do that and shouldn’t get more. Originally
an assumption of risk case, not considered “no duty” rule
6. Levandoski v. Cone
a. Police officer case (like firefighter rule)
b. Bowman thinks this is a “no duty” case – no duty to professional rescuers.
Or you could say that they assumed the risk in taking the job.
VI. Strict Liability (Traditional)
a. Doctrinal Development
i. Similar to Res Ipsa Loquitur
1. Res Ipsa a presumption, SL isn’t.
2. In SL, you can still challenge cause, proximate cause and damages, but not duty or
breach of duty.
ii. Prima Facie case – same as negligence, but duty is absolute
b. Fletcher v. Rylands (p. 506) (coal mine next door to mill)
i. D reservoir flooded P’s coal mines
ii. No fault by D, although subcontractor knew (but no respondeat superior)
iii. Strict Liability – water not naturally there – escaped
1. character of activity
2. place and manner of activity
3. relationship of activity to surroundings
iv. Travel on highways different – P takes a risk
c. HYPO – 1947 munitions inspector injured, no recovery
i. Not property, no liability
ii. Not unnatural use of land
iii. Nothing “escaped”
d. Losee v. Buchanan (p. 512)
i. D’s steam boiler exploded and was catapulted onto P’s land and through several building
ii. Rejected Rylands – importance of industrialized society – no recovery
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Fall ‘06
e. Sullivan v. Dunham (p. 514) (blasted tree on highway)
i. P killed by wood from blast while traveling on highway
ii. SL appropriate – opposite of highway thinking in Fletcher
iii. Same court as Losee, different outcome, why?
1. Hay precedent, p. 515
a. Injury a direct consequence of act (Losee was not)
2. Denison precedent
a. Supports Hay – P had right to be there
f. Restatement of Torts
i. 1st – Ultrahazardous activities
1. risk of serious harm that cannot be avoided with the utmost use of care
2. Not common usage or activity
3. HYPO – exterminator uses poison to kill bugs, but commonly used; court says
common use by public is important
ii. 2nd – Abnormally Hazardous; Factors:
1. High Risk
2. Harm is greater than
3. Can’t eliminate risk with reasonable care
4. Not a common usage
5. Inappropriate to the area
6. Value of Activity to the community\
7. Different from Restatement 1 b/c:
a. Added last 2 elements
b. Standard of reasonable care instead of utmost care
i. Poses prob for D b/c if D says could be eliminated w/use of
reasonable care and the accident happened, then still negligent
iii. Abnormally Hazardous Activities include flammable liquids, pile driving, crop dusting,
poison gas, rocket testing, hazardous waste disposal, oil wells, escaping water
g. Indiana Harbor Belt Railroad Co. v. American Cyanamid Co. (p. 519) (leaky railcar)
i. Posner prefers negligence theory of relief, not SL
1. Likes SL when can’t eliminate risk under reasonable care
2. Applied 2nd Restatement Factors
i. whether the shipper of hazardous chemical by rail should be strictly
liability for the consequences of a spill or other accident to the shipment
ii. not to be held strictly liable and remanded for issue of negligence
iii. no reason can’t be negligence case
iv. no one suggests that the leak was caused by the inherent properties of
the chemical
v. it was caused by carelessness
vi. accidents that are due to lack of care can be prevented by taking care
a. when lack of care can be shown in ct such accidents are adequately
deterred by the threat of liability for negligence
b. Elements of Cause of Action Based on Traditional Strict Liability
i. Abnormally dangerous activity (argue factors)
2. Substitutes for duty and breach of negligence
i. Actual Cause
ii. Proximate Cause
iii. Damages
iv. Contributory negligence is not a defense to SL except when P’s conduct involves
knowingly and unreasonably subjecting himself to the risk of harm from the activity
b. Theoretical Perspectives
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Fall ‘06
i. Enterprise Liability  enterprise should bear the risks of accidents it produce b/c:
1. Superior risk bearing capacity compared to victims.
2. better placed to respond to the safety incentives created by liability rules
3. California (under Green)
a. strict liability is imposed b/c the ultrahazardous actor intentionally exposes
others to a serious danger – an anti-social act is being redressed
b. but not logical reason for creating a public duty exception when the
rationale for subjecting the carrier to absolute liability is the carrier’s
ability to distribute the loss
ii. Goals of Strict Liability
1. Loss Spreading
a. Less social and economic disruption if loss is borne collectively, not
individually
b. Have to decide whether the actor engaging in the injurious activity is an
appropriate party to incur and then spread the loss
i. Depends on:
1. extent to which the actor was able to anticipate/evaluate
the underlying risk,
2. take appropriate steps toa ccumulate resources to insure
against loss
3. systematically recapture those outlays by passing them on
to consumers
c. has no stopping point so need other goals
2. Loss Avoidance (or Risk Reduction)
a. Aims at imposing liability in a way that reduces the # and severity of
accidents
b. Seeks to impose accident consts on those who could reduce accident costs
most cheaply
c. Less weighty goal than loss-spreading b/c
i. Contradiction
1. finessed by asserting that, under SL, the threat of liability
operates as an incentive to promote safer conduct, not
deterrence
ii. Efficacy of general deterrence
1. req. unattainable knowledge of relevant risks by decision
makers who don’t have access to that knowledge
iii. threat of liability can over-deter
3. Loss Allocation (or Internalization)
a. Internalization rather than externalization of loss
b. Induce price-mediated adjustments in production and activity, etc. –
allocate to party whose activities allow to reflect loss in cost of product or
activity
i. Price will increase, but then better choices (more informed) by
consumers
4. Administrative Efficienty
a. SL may result in settlement rather than long trials but also may result in
more cases
5. Fairness
a. Victim has right to recover for injuries caused by a risk > in degree and
different in order from those created by the victim and imposed on the D
i. Belief that b/w 2 innocent persons, the initiator who benefits from
the ultimately injurious activity should be liable
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1. temporally bound
a. no clear understanding of what “fairness” means
b. req. consumers to pay higher prices so accident
victims can be compensated
6. Protection of Individual Autonomy
7. Reasonableness Paradigm
a. Commitment to the community’s welfare as the criterion for determining
who is entitled to receive and who ought to pay compensation
3. Liability for Defective Products
h. Introduction
i. Privity doctrine originally shielded manufacturers from liability. Strong movement away
from this.
ii. MacPherson v. Buick Motor Co. (p. 550) (defective wheel)
1. if the nature of a thing is such that it is reasonably certain to place life and limb in
peril when negligently made, it is then a thing of danger
a. if added knowledge that that thing will be used by persons other than the
purchaser w/o new tests then irrespective of contract, manufacturer is
under duty to make it carefully
b. must be knowledge of danger  probable, not just possible
c. must be knowledge that in usual course of events that danger will be
shared by others than the buyer
d. proximity/remoteness of the relation
2. D was responsible for the finished product  had to do inspection/tests.
a. B<PL test
3. Torts wins over Contracts! Privity dead.
iii. Sales Law
1. Express warranty: statement about the product (“This glass is shatterproof”)
2. Implied Warranty of Merchantability:
a. Implication that it as good as any other like it on the market (buy house
paint)
3. Implied Warranty of Fitness for Particular Purpose
a. Seller knowledge of buyer’s purpose or buyer reliance on seller’s
judgment
iv. Escola v. Coca Cola Bottling Co. of Fresno (p. 556) (bottle exploded)
1. Traynor’s concurring opinion:
a. Manufactuter incurs an absolute liability when places an article on the mkt,
knowing that it’ll be used w/o inspection, has a defect that causes injury to
humans
b. Source of manufacturer’s liability was negligence in manufacturing
process or inspection of componenet parts
i. But even if no negligence, public policy demands responsibility to
be fixed wherever it will most effectively reduce hazards.
c. Inference of negligence may be dispelled by affirmative showing of proper
care
i. But P won’t be in position to refute such evidence
1. so negligence approaches rule of strict liability
a. it’s really liability w/o negligence b/c policy
demands that manufacturer be responsible for
their quality regardless of negligence = SL
d. What P proves under negligence  the risk-utility trade-off (i.e. B<PL)
i. Did their quality control work or were they careless?
e. What P has to prove under SL
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i. Bottle defective  it exploded and hurt P
f. Since the first buyer is usually a dealer, the warranty of safety given to him
by manufacturer should also serve purpose of protecting others beside the
dealer
g. Consumers can’t inspect the products, they rely on reputation of
manufacturer
v. Bystanders are entitled to same strict liability protections (p. 562)
vi. Continuity of Enterprise – SL has been extended on D’s side to include some suppliers too
vii. Usually doesn’t apply SL to used good sellers – goals don’t apply (p. 563)
i. Manufacturing Defects (p. 567)
i. Latent v. Patent Defect
1. Latent: not obvious; hidden (e.g. crashworthiness)
a. Originally (still in some states) req. that defect be latent for P to recover
under SL
2. Patent: apparent, visible, obvious
a. Luque v. McLean
i. Rejected doctrine: to automatically relieve manufacturer’s of SL
for patent defects undercuts deterrent effects of SL
b. Trend away from basing SL on latency of defect
c. Theory is that consumer can see the patent design defect and chose not to
buy product, can negotiate about safety
i. But bystander can’t, so would have no recourse.
j. Design Defects
i. Can be shown if the jury finds the risk of danger inherent in the challenged design
outweighs the benefits of such design
ii. in SL cases (compared to negligence action), jury’s focus is on condition of the product
itself, not the reasonableness of the manufacturer’s conduct
iii. Cronin v. JBE Olsen (569)
1. Bread truck case; Court says “you don’t have to show it was unreasonably
dangerous – that’s too much like negligence. Just show defect and harm.”
iv. Barker v. Lull (p. 570)
1. doesn’t have to be in “intended manner,” but in “intended OR reasonably
foreseeable manner” – e.g. standing on chair, screwdriver for paint cans
2. California’s court solution = 2 prong test.
a. Did product fail to performa as safely as an ordinary consumer
would expect when used in intended or reasonably foreseeable
manner?
OR, (an alternative, where #1 is inappropriate)
b. If P proves design proximately caused the injury, burden shifts to D
to prove the benefits of the design outweighed the danger.
(“excessive preventable danger” prong.)
v. Soule v. General Motors Corp. (p. 571) (driver’s ankle injured)
1. 2 ways to prove design defect from Barker
a. Consumer expectations: Ordinary users may have reasonable, widely
accepted min. expectations about the circumstances in which the product
should perform safely
b. Risk-Benefit Analysis: Product defective if its design embodies excessive
preventable danger unless benefits of the design outweigh risks of danger
inherent in design
i. Jury considers “Excessive preventable danger” by judging:
1. gravity of danger posed
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2. likelihood of the danger to occur
3. mechanical freasibility of safer alternative
4. financial cost of improved design
5. adverse consequences to the product and to the consumer
that would result from an alternative design
2. Barker/Soule places burden on D to prove benefits outweigh risks.
vi. Reasonable Alternative Design (p. 579)
1. P must prove that a RAD would’ve reduced the foreseeable risk of harm
a. Can have expert testimony, but some courts require prototype or drawing
2. factors considered
a. magnitude and probability of the foreseeable risks of harm
b. instructions and warnings accompanying the product
c. nature and strength of consumer expectations regarding the product
d. relative advantages/disadvantages of the product and its proposed altern.
e. Evaluation of utility includes relative need for the product
3. Feasibility of the alternatives is the most important factor in cases:
a. Ask if design was a reasonable choice among those aware of
b. If comparable products with a dif. Design exists, shows can make it at
lower risk and comparable cost
vii. Crashworthiness Doctrine
1. need to design autos so reasonably safe for intended use
2. foreseeable that autos will be in accidents
3. so duty to use reasonable care to minimize effects of a foreseeable collision
4. can only compare comparable products
viii. Camacho v. Honda Motor Co. (p. 584) (motorcycle –crashworthiness doctrine)
1. Rejects the consumer expectation test of Barker/Soule
a. Fears would create defense whenever risks are open and obvious
2. Does not shift burden onto D about factors
3. New Factors in determining whether design is unreasonably dangerous:
a. Usefullness/desirability of the product
b. Safe aspecs of the product – likelihood of injury
c. Availability of substitute product that’s safer but meets need
d. Manufacturer’s ability to eliminate unsafe character w/o impairing its
usefulness/making it too expensive
e. User ability to avoid danger by exercise of due care
f. Feasibility of manufacturer to spread loss
4. The fact that the dangers of a product are open & obvious doesn’t constitute a
defense to a claim alleging that the product is unreasonably dangerous
5. manufacturers have better access to information necessary to reach informed
decisions concerning potential safety measures than consumers
6. question under crashworthiness doctrine:
a. whether degree of inherent dangerousness could/should’ve been reduced
ix. Irreducibly Unsafe Products
1. NJ: jury might find risk of blow up pool outweighed its utility
a. May be products that are irreducibly unsafe and not socially beneficial
b. So SL is appropriate, even if this means they are no longer produced
2. Most states: no liability if disregard explicit warnings/knowledge of danger
k. Safety Instructions and Warnings
i. Irreducible risks could be reduced by instructions to consumer
1. product can be found not defective as matter of law when its warnings are
adequate and if they’re followed
ii. No duty to predict that consumer will violate clear, easily understandable warnings
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1. but warnings will not inevitably defeat liability for a product’s defective design
2. suppliers have to anticipate uses that are unintended but reasonably foreseeable
iii. Common knowledge may substitute for warning
iv. Criteria for determining adequacy of warning:
1. indicate scope of the danger
2. reasonably communicate the extent of harm that could result from misuse
3. physical aspects of warning must be adequate to alert RPP
4. simple directive may be inadequate if consequences aren’t listed
5. means to convey warning must be adequate (ex: prominence of language)
v. Heeding Presumption – presume that user would have heeded warning if it weren’t
inadequate
1. burden is on D to show would not have heeded it
a. prevents D from arguing causation in every case
vi. Hood v. Ryobi American Corp. (p. 596) (guards on saw)

1. P claims warnings affixed to product and manual were inadequate to alert of
dangers of removing guards
a. Wants them to be specific – Maryland doesn’t require encyclopedic warn.
2. Price of more detailed warnings
a. Might not cost more $-wise, but less effective when longer and more spec.
3. D’s warnings were clear and easily understood
a. Sufficient to give ordinary consumer warning to operate w/care & guards
4. Majority of consumers don’t detach the guards  critical safety feature
vii. The Learned Intermediary Rule
1. Ordinarily the warning must be addressed to the user of a product
2. Exception re prescription drugs:
a. warning to doctor is a substitute, assume he will warn the patient,
help the patient decide about whether to take it, or assess those risks
for the patient
b. Exceptions:
i. Mass inoculation b/c no doctor; warning to patient from
manufacturer
ii. When FDA mandates a warning be given to consumer
(contraceptives)
iii. D markets drugs directly to the consumer – must include
warning in ad
3. Edwards v. Basel Pharmaceuticals (p. 607)
a. Nicotine patch=contraceptive so learned intermediary rule doesn’t
apply
b. the warnings are needed and
i. must adequately inform of dangers associated w/ the
product’s use
ii. not req. to warn about obvious dangers
viii. Known and Unknown Risks
1. Timing! Should evaluate D’s conduct according to what known at time of trial or
what was known at time of manufacture?
a. To hold liable for things didn’t know at time d made prod. Seems unfair
b. But it is genuinely SL and may serve its goals
2. Vassallo v. Baxter Healthcare Corp. (p. 612) (silicone breast implants)
a. Current Law:
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i. Duty to warn presumes manufacturer was fully informed of all
risks of the product regardless of the state of the art at the time of
the sale
ii. Amounts to SL for failure to warn of these risk
b. Majority of states follow “state of the art” rule
i. Manufacturers must warn of dangers known at time of
manufacture/distribution of product
ii. Goal: induce conduct that is capable of being performed
iii. Goal not advanced by imposing liability for failure to warn of
risks that weren’t capable of being known
c. Revise law to say (as under Feldman):
i. D not liable for failure to warn about risks that weren’t reasonably
foreseeable at time of sale/couldn’t be discovered by reasonable
testing
ii. Ask if had actual/constructive knowledge
iii. Hold manufacturer to standard of expert in the field
iv. Not SL standard but CT shifts burden of proof to D to show that
info unavailable at the time.
3. Duty to warn past customers or patients at time risk becomes known?
a. Some cts say yes, some no; if duty imposed, negligence rule applies
b. Can be either:
i. State of the art: new, safer technology available that wasn’t before
ii. After-acquired information: info about risks available post
manufacturing and distribution
4. Section 10 of Products Restatement – Reasonable Seller would warn if:
a. Seller knows/reasonably should know that product poses a substantial risk
of harm to persons/property
b. Those who’d benefit from warning are identifiable & likely unaware of
risk
c. Warning can effectively be communicated to & acted upon by recipients
d. Risk of harm is sufficiently great to justify burden of providing warning
ix. Difference Btwn negligence and SL:
1. under theory of SL:
a. knowledge of harmful effects of a product will be imputed to a
manufacturer on a showing that knowledge of the defect existed w/in the
relevant industry.
i. Once proof os such knowledge in the industry has been est.,
triggering the duty to warn, the P must show that an adequate
warning wasn’t provided
2. Under negligence:
a. P must show that specific D knew/should’ve known the potential hazards
of the prod.
l. Defenses (comparative liability, unintended use)
i. Unintended use
1. Burden on the D to show that it was unintended use of the product that was
unforeseeable
ii. Comparative Liability
1. General Motors v. Sanchez (p. 620)
a. Failure to find defect or some other negligence?
i. If failure to find defect, still get full SL award
ii. If other negligence, then reduce by % at fault, even in SL
iii. Disclaimers: don’t usually work.
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Misuse Spectrum
|-----------------------------------------------------------|------------------------------------------------------|
Unintentional & unforeseeable use unintended but foreseeable
Diving into 2 feet of water screwdriver on paint can
m. Causation
i. Actual Cause: did the product’s defect cause the P’s harm
1. common presentation of this issue:
a. tie rod involved in steering breaks in a 3yr old car and runs your client
down
2. What do you need to est. in your suit against the manufacturer?
a. Design defect or manufacturing defect
i. Either wrong when left factory or cars weren’t designed properly
ii. Proximate Cause
1. Parallel to negligence doctrine
a. Intervening conduct (Traxler in MSA) or foreseeability of injury
2. Chief prox. Cause prob in products liability=unintended use/misuse/product
alteration
a. Where is misuse argued?
i. As a defense, thus burden on D and result will simply reduce
damages
ii. Part of prima facie case where defect is defined as including no
unintended use
1. then P has burden and may never get to jury if can est. this
one element
b. An argument against liability is unintended use of product is that
consumers who use it properly are made to subsidize those who don’t
(higher price)
c. Why should recovery be allowed for foreseeable misuse?
i. Safety considerations
1. liability makes manufacturer anticipate and design around
or at least warn
ii. Bystanders may be injured by another’s misuse
n. Work-Related Injuries (Alterations Cases)
i. Should manufacturer be liable when modification made and worker injured?
1. majority rule (not in MO and NY):
a. if the modification is foreseeable, then manufacturer is liable
ii. Jones v. Ryobi, Ltd. (p. 629) (employee removed guard)
1. Employee removes safety guard on piece of dangerous machinery
2. Who’s at fault? Employers b/c they took it off
3. Ryobi’s defense?
a. Unintended use. Not design or manufacturing defect
b. Not liable for injuries that result from modification of the product after it
leaves the manufacturer’s hands – Intervening Actor
iii. Liriano v. Hobart Corp. (p. 633) (immigrant injured by meat grinder)
1. P injures self operating meat grinder which the supermkt had removed the safety
guard
2. Can manufacturer be sued for defect? Wasn’t defective when left manufacturer.
3. Can he sue for failure to warn?
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a. Ct holds manufacturer may be liable for failure to warn even if design
defect claim is precluded by substantial modification b/c in best position to
know
i. Not need foresee all possible modifications and design around 
huge burden
1. but burden to focus on foreseeability of risk and adequacy
of warning
VII. Trespass
a. HYPO: Bowman walks up to the wrong house. Trespass? Yes (though nominal damages).
Intent is simply to walk onto land. (as opposed to “I’m lost”)
**Unintentional? Need actual damage to have a cause of action.
**Intentional? Nominal damages available.
Trespass: possession/one shot
Nuisance: use & enjoyment (continuous)
b. Martin v. Reynolds Metal Co. (p. 670) (small particles kill cows)
i. P owned farm. Near farm was aluminum reduction plant. P’s farm has cattle. Particulate
lands on P’s land and cows eat and die. Cows now don’t eat grass, so land looks bad.
ii. Was this an intrusion within trespass?
1. Yes.
2. Even though not intentional, it caused direct invasion (look to science!)
VIII. Damages – what we do to make people “whole”
a. Compensatory Damages
i. Fundamental Goal of damage award in unintentional tort area is:
1. to return P as closely as possible to his condition before the accident
ii. Economic/Pecuniary
1. Medical costs – bills, future predictions of costs, life expectancy
2. lost income – past (while hurt), future (prediction, salary times work life
expectancy), and the discount rate (reduce money by whatever necessary so that if
you just let it sit, the interest would bring it up to the amount of settlement
iii. Non-Economic/Intangible
1. Pain and Suffering
a. Why award for pain and suffering?
i. Justice
ii. Assuage internal feelings of guilt
iii. Make them whole
iv. Pay for attorney’s fees
b. Generic objections to pain and suffering
i. Public not at fault, but they have to share costs, like raised bus tix
ii. Not really quantifiable, not equally distributed, and not predictable
iv. Set-offs: insurance companies would get windfall; most states don’t allow set-offs.
v. Seffert v. Los Angeles Transit Lines (p. 699) (woman dragged by bus)
1. Facts: P entered bus operated by D when she was injured
a. Bus door closed on her foot and dragged her a short distance
b. Injuries incl. Permanent disfigurement to her foot, crippling, and
permanent pain
c. She showed $53,903.75 in medical expenses and loss of earnings
i. She also asks for $134,000 for pain and suffering  D thinks this
is excessive
d. Jury decided for P the total amount requested
2. Can court reduce damages awarded by the jury? No
3. Jury makes determination of damages, and court should only overturn if it “shocks
the conscience” and appears to be the result of “passion or prejudice.”
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4. Dissent (Traynor): would affirm pecuniary loss but not non pecuniary – too
speculative.
a. Thought it shocked the conscience – way out of line w/other tort awards
b. Pain and suffering shouldn’t be larger than medical award
5. CAL 1981 – abolished joint and several liability in relation to pain and suffering
a. Allocation of fault
i. Π 40%
ii. ∆ 1 10%
iii. ∆ 2 50%
b. Comparative negligence system where ∆ 2 insolvent
c. Damages
i. Compensatory - $100,000
1. ∆ 1 stuck with $60,000
ii. Pain and suffering - $1 million
1. ∆ 1 $100,000 under several liability
2. Don’t make case – cost too high for recovery
b. Punitive Damages (p. 739)
i. Two aspects
1. Punitive: specific deterrence – this driver won’t do it again
2. Exemplary: general deterrence – folks in general think twice about driving drunk
ii. Factors to Determine Excessiveness
1. Degree of reprehensibility
2. Ration btwn punitive damages award and compensatory damages
3. Dif btwn punitive damages & other civil/criminal penalties that might be imposed
iii. Taylor v. Superior Court (p. 740) (repeat DUI offender)
1. Facts: P sought punitive damages in suit against D after car accident
a. He was allegedly intoxicated, had history of DUI, etc.
b. Trial court dismissed punitive damages, P wants court to reinstate
2. Are punitive damages available in negligence cases? Yes
a. D’s actions show a disregard for the safety of others
i. Need to deter this type of conduct, so punitive are appropriate
3. Concurrence: don’t want to legislate & say all drunk drivers – just this case
4. Dissent:
a. Worried about windfall and/or punitive damages might encourage
nuisance suits
b. Worried it will make chance of recovery under insurance impossible
5. Death Cases
a. Survival Actions – whatever decedent would get, survivor gets
b. If D is dead, no punitive damages (wrong to punish estate)
iv. Vicarious Liability
1. States differ, some allow punitive to flow to employer, others follow 2nd
restatement on pp. 747
v. State Farm Mutual Auto Insurance Co. v. Campbell (p. 749)
1. S.C. basically said that it needs to be within single-digit ration to the compensatory
damages.
2. Nevertheless, Oregon recently awarded $75m punitive, so not really holding.
IX. Intentional Torts/Harm (p. 884)
a. Spectrum of Mental States
i. Intent: purpose
ii. Substantially certain intent
iii. Recklessness: conscious disregard for risk
1. element of knowledge but not to a substantial certainty
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iv. Negligence: create unreasonable risk of harm
b. Common law doesn’t want to look inside mind – at particular intent (what’s substantially certain)
c. Typically not compare P’s negligence with D’s intentional tort
d. Intent (p. 885)
i. Purpose or Desire Intent: desire to cause the consequences
ii. Knowledge Intent: consequences are substantially certain to result
iii. Garratt v. Dailey (p. 995) (5yr old pulling out chair)
1. 5 yr old pulled out chair right before P was going to sit and she broke hip, etc.
a. P claims D intended she fall and D says moved chair to sit in it & tried to
move itback
2. T.C. discmisses b/c no intent  reversed and remanded for clarification
3. Issue: Did P have intent to harm?
a. Is substantial knowledge that harm would result sufficient to support an
action for assault and battery?
4. Holding: Intent to harm not required
a. A substantial knowledge of the result of harm can sustain liability
5. Reasoning: battery requires that P show thru either:
a. Prong 1: Purpose/Desire Intent (“Today I’m going to get me an old lady”)
b. Prong 2: Knowledge Intent (doesn’t specifically intend to hurt lady but
knows w/substantial certainty the act he performed is likely to bring about
that result)
c. Mere lack of intent would not spare him liability
i. Age only relevant to findings about what he knew – experience,
capacity, etc.
ii. Subjective standard – what the D knew – not objective RPP like
negligence.
d. Battery would be est. if in addition to P’s fall, it was proved that when D
moved the chair, he knew w/substantial certainty that P would try to sit
down where the chair was.
e. Assault and Battery (p. 891)
i. Elements of Battery (protect bodily integrity)
1. Intentional infliction of a harmful or offensive contact
ii. Prima Facie Case for Battery
1. Act
2. Intent to cause harmful or offensive (i.e. to ordinary person) contact
3. harmful or offensive contact occurs
4. Cause in fact
5. Proximate Cause
6. Damages can be nominal; actual damages not required
iii. Case law has defined it as ordinary person, not an ususually sensitive person
1. context is very important  the way it happened and the relationship of the parties
iv. Not battery:
1. sort of implicit license b/c he got on the subway (implied privilege)
2. de minimis non curat lex (the law doesn’t cure things that are little)
3. unduly sensitive person b/c think about ordinary person
v. Elements of Assault (protect emotional tranquility)
1. Intentional or reckless act
2. Creates apprehension in P
a. Apprehension has to be that which would normally be aroused in a
reasonable person
b. Have to be aware of the apprehension
i. Can’t assault someone sleeping
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3. Of harmful or offensive conduct
a. Apparent but not actual ability to carry out the threat of force is required
vi. Picard v. Barry Pontiac-Buick (p. 891) (camera touching incident)
1. P took photos to show D’s bad service
2. basically he then pointed at her and touched the camera; maybe lunged at her, spun
her
3. she sued for assault and battery for the back injury sustained for spinning around
4. PH: trial ct granted $60K comp and $6K punitive
5. Issue: If P claims fear, is that enough? Is touching item held by party battery?
Were damages excessive?
6. Holding: Yes, Yes, Yes. But remand on issue of damages.
a. If reasonable person could react with fear, assault established
b. According to restatement – touchings omething held in way as to make
like person can be person (so cane, etc) – camera counts
c. BUT – punitive damages may be excessive
i. No proof of injury or bad faith, and not much evidence of
causation
7. Defined battery as an act that was intended to cause, and in fact did cause, “an
offensive contact with or unconsented touching of or trauma upon the body of
another, thereby generally resulting in the consummation of the assault.
a. An intent to injure P is unnecessary in a situation in which a D willfully
sets in motion a force that in its ordinary course cases the injury
f. Transferred Intent
i. From victim to victim
ii. From tort to tort among:
1. battery, assault, false imprisonment, trespass to land, and trespass to chattel
g. False Imprisonment (p. 902)
i. Intent to confine, against P’s will
1. must be limits (can be psychological or physical)
2. no escape possible (that P knows about)
3. P must be aware of restraint
ii. Lopez v. Winchell’s Donut House (p. 902) (employee questioned)
1. Employer held employee to question about stealing money
2. Common law revived way of controlling/confining the capacity of the
employer/shop owner to be confining employees/potential shoplifters
3. She didn’t try to leave and they never told her she couldn’t
a. Open and shut case  summary Judgment against P b/c moral pressure
not enough
h. Intentional Infliction of Emotional Distress (protecting emotional tranquility)
i. Prima Facie Case::
1. D’s conduct intentional or reckless (knew or should have known cause
distress)
2. Conduct outrageous and intolerable
3. Causal connection b/w D’s conduct and P’s emotional distress
4. P’s Emotional distress severe
ii. Traynor opinion in Siliznoff
1. Jury can figure out emotional distress and doesn’t have to be attached to
physical injury
iii. Womack v. Eldridge
1. Facts:
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a. D took P’s photo and used it as part of case in defense of possible
child molester
b. P was subsequently called into court, questioned by police, had to
serve as witness etc.
c. He suffered shock and distress for being associated with the trial,
lost sleep, etc.
2. PH: jury found for P, granted $45k
a. Judge dismissed because IIED couldn’t hold without accompanying
physical harm.
3. Issue: Can extreme and outrageous conduct support tort w/o phys. harm?
Does it here?
4. Holding: Sure if it has
a. - reckless/intentional act -conduct outrageous
b. - distress caused by act -distress extreme
iv. Hustler v. Falwell
1. Hustler published parody of ad campaign that discussed the first time using
Falwell
2. He sued for libel, invasion of privacy, and IIED
a. invasion of privacy and libel  verdict for Hustler
b. IIED Plaintiff [$100,000 + $50,000 punitive]
3. Issue: Can public figure get damages for IIED from parody when harmful
but not truthful?
4. Holding: No
a. First Amendment rights extend to parody, esp. when presented as
false
i. Have right to exchange ideas and isn’t a clear way to
distinguish between political parody that offends someone
because of politics and something really outrageous
b. New York Times v Sullivan:
i. Public figures cant recover for the tort of IIED w/o showing
in addition that the publication contains a false statement of
fact which was made w/ actual malice
ii. Malice= w/ knowledge that statement was false or w/
reckless disregard as to whether or not it was true
5. Concurring (White): jury found no assertion of fact so why bring in NYT v.
Sullivan?
v. Defamation: Publication of False information that’s Damaging to P
vi. Defenses to defamation
1. Truth
2. Opinion, not fact
3. Public figure: actual malice standard, i.e., D made statement “with
knowledge that it was false or with reckless disregard of whether it was
false or not” (NYT v. Sullivan)
2. Defenses and Privileges
a. How defend against intentional torts?
i. prima facie case is wrong b/c the facts are the implications are wrong
ii. not intentional tort b/c the conduct was privileged which negates existence of
intent. tort
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b. Privileges:
i. Consent
1. can be expressed or implied
a. They say so (written or verbal)
b. Silence? People’s actions?
i. Ellis Island Mass Inoculation case
1. Doctor has defense of implied consent b/c she was in
the line and raised her arm and she saw what was
going on so consent implied from her conduct
ii. Hart v. Geysel
1. Reminded of the Flopper case but don’t say assumption of risk here b/c it’s
consent
2. The Defense/Privilege to battery=consent
a. Ex: surgery
3. Facts: P decedent died in fight w/ D
a. complaint asserts no claims of anger, malice, etc
4. Issue: Can P recover damages from consented to illegal fight? No
5. Reasoning:
a. he consented to fight and accepted the risks of the fight
i. don’t let the one who lost get compensated
b. Majority view: if in anger, each civilly liable
i. voluntary action no defense
c. Minority view: if in anger, unlawful
i. no remedy in cases where D didn’t use excessive
force/malicious intent
d. Neither of these apply, but notice that they are exceptions to the
general rules:
i. if you consent, suck it up and no profiting from wrongdoing
c. Self Defense
i. Requires:
1. Reasonable belief that you’re in danger of death/great bodily harm and
2. force you use has to be proportionate
ii. What if you’re mistaken? If reasonable mistake then will be protected
iii. Courvoisier v. Raymond
1. Some rowdy men entered the D’s building and with his gun drawn D kicked
them out but they hung around outside
2. D shot at member of the crowd who was advancing who turned out to be a
deputy
3. Issue: Can earlier experiences give you self defense?
4. Holding: This is a jury question—whether his actions were reasonable
d. Defense of Others
i. Requires: Stepping into shoes of person defending (basically their self-defense)
thus:
a. Reasonable fear
b. Death or great bodily harm to the other
c. Proportionate force
ii. but then add on the mistake and the courts split in relation to defense of others
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1. minority of jurisdictions & Restatement: if mistake was reasonable then still
applies
e. Protection of Property
i. Rule: May not use deadly force in defense of property (e.g., spring guns)
1. Standard: Apparent necessity and Reasonable force
ii. Katko v. Briney
1. Spring-gun case
2. Holding: cannot use deadly (i.e. excessive) force except to protect against
death or great bodily harm (i.e. personal injury)
3. If was his residence then personal injury would be at stake so maybe would
be okay
f. Private Necessity
i. Ploof v. Putnam
1. privilege to enter property in order to save life over objection of landowner
a. when interest you’re defending is more imp. than the sacrificed
interest
i. life more important than dock
ii. Vincent v. Lake Erie Transportation Co.
1. obligation to pay damages for intentionally damaging property of another in
order to save own property
a. it’s intentional b/c was known to be done
b. but it’s privilege so strict liability b/c makes more sense for boat
owner to pay
2. ct goes thru thing about ropes and replacing the frayed ropes w/ stronger
ropes
a. misfeasance and nonfeasance
b. if started out w/ really strong ropes then dock owner doesn’t get to
collect?
iii. pocket of strict liability
1. who can spread the loss? Either
2. who can allocate the risk? Either
3. Which can insure more cheaply? (Dockowner in this case)
iv. Ploof v. Putname: privilege to enter property in order to save life over objection of
landowner
v. Vincent v. Lake Erie: obligation to pay damages for intentionally damageing
proprety of another in order to save own property
vi. What if in order to save life instead? Restatement says yes, although there are no
litigated cases.
Glannon: use proximate cause analysis to bar liability for unforeseeable harm, duty analysis to impose policy limits
on liability for harm that is foreseeable
36
Fall ‘06
Role of Statute as Standard
C. Three approaches taken by states (each just one approach)
• Violation of statute = some evidence of breach of duty, i.e., of negligence (jury weighs evidence,
which side has preponderance)
• Violation of statute = rebuttable presumption of negligence ( was D’s action reasonable?)
• Violation = conclusive presumption or negligence per se (judge instructs to find against statute
violator
4. * Note: this is the majority rule
Will the Court Adopt the Statute as the Standard of

Law?
D. Restatement, p. 78, note 5:
E. Was statute enacted:
• To protect class to which P belongs?
• To protect particular interest invaded?
• From kind of harm that resulted?
• And to protect against the particular hazard that occurred?
Types or Bases of Res Ipsa

• Probability res ipsa: more likely than not
* so shifts burden to D to show was some other cause
• Access res ipsa: p. 94, last line
* if more information is necessary to explain the accident, Defendant is likely to have it; Plaintiff
does not.
-- so might say a beggar broke into our warehouse that afternoon….
Procedural effect of res ipsa loquitur differs among states, p.99

F. Inference states: majority rule: Plaintiff has made a prima facie case for negligence, can’t dismiss.
* goes to jury, which can either draw the inference of negligence or reject it.
versus
G. Presumption states: like California: res ipsa raises a presumption of negligence, may even shift the
burden of proof
H. * so defendant must present evidence to rebut in order to get to a jury or judge dismiss
37
Fall ‘06
Competing Standards re Informed Consent
• Professional standard approach: what RP MD in that community would disclose,
touchstone = practice in community
• Reasonable patient approach: P show:
• Material risk
• Failure to disclose
• Disclosure would have led reasonable patient to reject procedure or choose different treatment
• Duty to disclose, whatever the custom
Tarasoff duty analysis

I. 1. If therapist has or should have determined (some states require actual knowledge)
that
J. 2. Patient poses serious danger of violence to others
K. Then:
L. 3. Duty to exercise reasonable care to protect foreseeable victim
M. 4. Victim must be known or identifiable
Common law categories of duties owed to those coming onto land

• Trespasser (no permission): no duty or very limited duty owed (known trespassers,
children, etc.)
• Licensee (includes social guests and relatives): to warn, protect against known
dangers
• Invitee (includes business visitors): to use reasonable care to make premises safe,
thus to protect against dangers landowner could discover by inspection and to fix them
a. Issues re NIED law

• Require actual physical impact?
• Zone of danger test?
• Require consequent physical injury?
-- what harm results, serious or trivial?
-- what type of proof required?
N. 4. Direct versus indirect victims: bystander claims allowed by third parties?
38
Fall ‘06
b. 1. Physical impact?
O. Falzone: no longer require, so long as reasonable fear of immediate personal injury (broader than
zone of danger)
c. 2. Zone of danger
P. New York State requires plaintiff could have been injured herself in order to recover for emotional
damages.
Q.
R. Note: NYS handles many NIED cases as special exceptions to no-duty rule, e.g., for negligent
mishandling of corpses….
d. 3. Consequent physical injury?

S. Gammon, Maine: no physical impact or zone of danger or physical injury, but allows if:
• Reasonably foreseeable that would lead to severe emotional distress
• Severe emotional distress that would affect an “ordinarily sensitive person”
e. NYS: Bystander actions

• Zone of danger (3d party could have been injured)
• Immediate family
• Serious and verifiable distress
f. California: Dillon v. Legg (1968)

• Plaintiff near scene
• Contemporaneous sensory observation of the accident
• Close relation b/w victim and third – party plaintiff.
g. California: Thing v. La Chusa (1989) narrows Dillon standard

• Closely related to victim, co-resident – defines relationships
• At scene and aware that event causing injury
• Emotional distress more than disinterested witness but not abnormal
39
Fall ‘06
h. New Jersey: Portee (1980)
• Death or serious physical injury caused by D’s negligence
• Marital or intimate family relationship
* note: NJ, unlike California, recognizes NIED claims by cohabitants (Dunphy)
• P observes death or injury at the scene
• Severe emotional distress
i. Summary of approaches
• NY: zone of danger test
• California: Dillon as limited by Thing
• NJ: Portee
3 Approaches Described in Nycal (MA 1998, p. 306)

• NY – (above) “near privity” = most strict.
• NJ – accountant liable to any person he could reasonably have foreseen would obtain and rely on
opinion, including known and unknown investors = broadest liability.
• Nycal: adopts Restatement test for negligent misrepresentation = middle road.
T.
Probabilistic harm in the future, e.g., exposure to

asbestos
U. 3 Approaches:
• Mauro: if 50+ chance of getting future disease, get full recovery now.
• Petriello: proportional recovery even if <50%: 8-16% of future damages to a minor P.
• Two lawsuit rule: wait until disease develops and sue later.
40
Fall ‘06
j. A Detour: Daubert and the Reliability of Scientific
Evidence
V. Court as the “gatekeeper” determines whether evidence is reliable enough to admit, considering:
W. Has it been tested by scientific method?
• Has it been subjected to peer review?
• What is the rate of error?
• Is theory generally accepted?
k. Comparative Fault: Two Systems

X. Joint and several liability: Plaintiff can recover the whole amount of damages from
either of two (or more) Defendants.
Y. * so if one is bankrupt or absent, P still gets full recovery from the other
Z. Versus
AA. Separate liability: Plaintiff may only recover the amount of damages for
which that defendant is responsible under comparative fault
BB. * so may not receive full recovery
CC. * P bears risk of insolvency of any D
l. New York versus California and Market Share Liability

DD. California: Each pays damages in relation to the approximate likelihood they
caused the harm.
EE. New York: Each pays in relation to the risk of harm they created rather than the
likelihood they caused the harm in this case.
FF.
GG. Why the difference?
HH. In NY, it is not a defense if D can prove it did not manufacture or market
the drug taken by the P. Just your share of national market.
II. In CA, Ds can exculpate self, e.g., prove never sold in that market.
41
Fall ‘06
m. PROXIMATE CAUSE
• A policy judgment that D should for some reason not pay for P’s damages
– Chain of causation too indirect, or too remote, or too freakish or unforeseeable an accident.
• General rule = D is liable for foreseeable harm, but need not foresee exact manner, extent of harm,
or victim.
– Proximate cause  circumstances in which nonetheless not hold D liable.
n. Rule of Polemis
• Defendant is liable for all harm that was directly caused (based on English fire
cases).
– Arbitrator had said damage was not foreseeable
o. Rule of Wagon Mound

JJ. Liability must be limited to foreseeable risks.
Here, it was not foreseeable that D’s negligence (oil spill) would result in a fire.
p. Two Lines of Precedent

• Polemis: direct causation – extending liability
• Wagon Mound: foreseeability – limiting liability
– Note: foreseeability language is dominant in modern
tort law.
q. A General Rule
KK. D2’s negligence will not relieve D1 of liability for negligence.
LL.
MM. Another way to state this = intervening negligent conduct does not break the chain of
causation.
r. Does intervening act break chain?

NN. Yes, if intentional, maybe even reckless or gross negligence (= knowledge and conscious
disregard of risk).
OO.
PP. But not if the intervening wrong is both foreseeable AND the principal hazard which the original
negligence created (Hobo Hollow): D1 is then still liable even if the intervening conduct was
criminal.
42
Fall ‘06
s. Court holds Ds liable for property damage from flooding
QQ. Is court’s approach more like Polemis or Wagon Mound?
RR. Polemis: If harm to P foreseeable, then liable for broader
consequences…
SS. A marriage of Palsgraf and Polemis! * harm to P was foreseeable (Cardozo)
TT. * then liable for all the damages (Polemis/Andrews), though unforeseeable
t. How is Barker analysis different from negligence?

UU. Under Barker/Soule, burden is on D to prove that benefits outweigh risks.
VV.
WW. Structure of analysis:
• Consumer expectation test OR
• If design caused injury
• Burden shifts to D
• Do benefits outweigh risks?
u. Soule v. GM, Calif. 1994, p.571

XX. Tells us P isn’t free to choose between the two tests.
YY. Only use consumer expectations prong in cases where common experience
ZZ. * or (p. 574, n.4) if used by a small group of people, can use expert testimony to educate
about expectations of consumers who do use that product.
v. Was Consumer Expectation Test Appropriate in Soule?

AAA. No. Why not?
BBB. Soule involved technical, detailed theory of defect (see p. 572 for description), so
can’t use consumer expectations
CCC. Instead, must use the second prong of Barker
DDD.
EEE. Test for when must use Prong #2, p. 574
FFF.
43
Fall ‘06
w. Example of an Appropriate Consumer Expectations case
GGG. Campbell, p. 577, note 2:
• Bus passenger thrown from seat at turn
• Claims defective design because no grab bar or strap with
reach
• Presented only photographs as evidence.
HHH. Appropriate for consumer expectations test?
III. Yes, a matter of common experience.
JJJ. May not use expert testimony.
x. Can you rebut this case with evidence about cost?

KKK. Soule court says no. Why?
LLL. * That comes in only if analyze on the second prong.
MMM. * Need no further proof where ordinary knowledge is enough to permit the
inference that product did not perform as safely as it should.
NNN. Court gives examples in note 3, p. 573
OOO.
y. How different is the Camacho analysis from a negligence analysis?

PPP. Not much! Hard to see difference between SL and negligence in Camacho.
QQQ. This is typical of most jurisdictions; most use Wade balancing factors without shifting the
burden of proof.
RRR. Courts have come full circle back to a negligence-type inquiry, at least as to design defects,
as Third Restatement reflects.
z. Reasonable Alternative Design

SSS. Feasibility of the alternatives is the most important factor in most cases.
TTT. * ask if design was a reasonable choice among those of which should have been
aware
UUU. If there are comparable products with a different design, shows can do at lower risk and
comparable cost.
44
Fall ‘06
aa.Factors in evaluating adequacy of a warning, pp. 599, note 1
VVV. Among other things:
• Indicates scope of danger (did Hood?)
• Communicates extent or seriousness of harm that could result
• Physical aspects alert prudent person, e.g., intensity of language, prominence of display (block
letters? Front or back?, etc.)
• Indicates consequences (did Hood?)
bb. Same court, 2 years later: Feldman

WWW. * P took tetracycline, an antibiotic, which can result in discoloration of teeth.
XXX. * No warning of this side effect, which D says was unknown then.
YYY.
ZZZ. NJ court concludes that conduct should be measured (in cases other than
asbestos) by knowledge at the time manufacturer distributed the product.
AAAA. No liability if knowledge of danger was not available.
BBBB.
CCCC.
cc. Analysis under Feldman

DDDD. * ask if had actual or constructive knowledge (knew or should have
known) of risk at time of distribution
EEEE. * hold manufacturer to standard of expert in the field.
FFFF. * note: this is NOT a strict liability standard.
A. Comparative Negligence vs. Comparative Fault
GGGG. 1. Comparative negligence: between P and D
HHHH.a. But: court
“Pure shifted
system” burden ofnegligence
of comparative proof to D to show that information was not
reasonably
i. Qavailable
1: A 25%–fault
a Barker-like
B 75% faultcompromise: negligence but shift burden to
•
Defendant to ease proof (access).
A’s loss = $100.
IIII. 1. What is A’s claim? B owes A $75
ii. Q2: Suppose B’s loss is also $100.
1. What is B’s claim? A owes B $25
b. “Modified comparative negligence”
i. Version 1: P recovers if fault not as great as D’s.
• P’s negligence D’s negligence
50% 50%
49% 51%
• Who wins in each?
1. D wins 2. P wins
ii. Version 2: P recovers if P’s fault no greater than
D’s fault
• P’s negligence D’s negligence
50% 50%
51% 49%
• Who wins in each?
1. P wins 2. D wins
Comparative fault: between D and D 45
Fall ‘06
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Tort Exam Answer Structure

1. What torts may have been committed?

I. Introduction to Tort Liability

b. Petition of Kinsmen Transit Co. I (p. 437)

vi. Hood v. Ryobi American Corp. (p. 596) (guards on saw)

Will the Court Adopt the Statute as the Standard of

Types or Bases of Res Ipsa

Procedural effect of res ipsa loquitur differs among states, p.99

Tarasoff duty analysis

Common law categories of duties owed to those coming onto land

a. Issues re NIED law

d. 3. Consequent physical injury?

e. NYS: Bystander actions

f. California: Dillon v. Legg (1968)

g. California: Thing v. La Chusa (1989) narrows Dillon standard

3 Approaches Described in Nycal (MA 1998, p. 306)

Probabilistic harm in the future, e.g., exposure to

k. Comparative Fault: Two Systems

l. New York versus California and Market Share Liability

o. Rule of Wagon Mound

p. Two Lines of Precedent

r. Does intervening act break chain?

t. How is Barker analysis different from negligence?

u. Soule v. GM, Calif. 1994, p.571

v. Was Consumer Expectation Test Appropriate in Soule?

x. Can you rebut this case with evidence about cost?

y. How different is the Camacho analysis from a negligence analysis?

z. Reasonable Alternative Design

bb. Same court, 2 years later: Feldman

cc. Analysis under Feldman

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