Torts

Prof. Donald Gifford

University of Maryland School of Law
Fall 2008

1. Exams
A. State rules up-front
I. Assume that judge is an idiot
II. Go step-by-step
B. expectations
I. has student provided what he’s looking for?
a. Objective analysis?
b. Arguments for one side?
c. Arguments for one side, responses from other side?
d. Claims against certain defenses?
II. Issue-spotting: IRAC!
a. Err on side of overinclusiveness, but don’t throw everything at wall
b. Can defendant be held liable for negligence?
i. What rules and principles apply?
 Why?
 If rules don’t apply, why not?
 Policy?
 Safest to use the one we talked about in class
 If it’s there, talk about it
 If something doesn’t apply, don’t talk about it unless asked
c. Standard of care? Violation?
d. Causation
i. Don’t need lengthy portion on proximate cause
e. Conclusion
i. He doesn’t care whether right or wrong
ii. But not having a conclusion will count against you
C. Break fact patterns into incidents and transactions
I. Will generally be more than one tort
D. How to screw up (or not)
I. Good: Start in logical place
a. What’s chief claim plaintiff would bring?
II. Bad
a. Forget major issue
b. Misunderstanding major issues/doctrines/principles
E. How to take exam
I. Read question 3 times
a. 1: understand story, calm down
b. 2: make brief organizational outline
c. 3: make sure you haven’t missed anything in outline
d. this will take ~⅓ of time allocated for question
II. organization counts for a lot

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 a. but nobody expects perfect structure on exam
III. budget time carefully
IV. If you hit the same issue (e.g., negligence) more than once within the exam, don’t
have to repeat the rules within the same question
a. DO repeat the rules from question to question
2. General principles
A. Magical words of tort law:
I. Reasonableness
II. Foreseeable
III. Material
IV. Defect
B. Allocative vs. distributive consequences:
I. Allocative: what measures do we want to take to prevent?
II. Distributive: who’s going to pay?
C. Policy behind tort law
I. Loss minimization
a. Deter
b. allocative
II. Loss distribution (absorption, build into consumer price, insured)
III. Moral fault (those at fault should be held accountable)
IV. Conflict resolution (resolve social unrest, social welfare)
V. Efficient resolution of disputes
VI. Better relationship between parties
D. How to define intent in tort law:
I. Defendant has to intend to do specific harm
II. If defendant acts with knowledge to a substantial certainty that harm is going to
occur, that satisfies intention requirement.
E. Reasonably foreseeable risk: Risk that is foreseeable to a person who has undertaken a
reasonably prudent investigation
3. Bases of liability for accidental harm
A. common-law writs: trespass vs. trespass on the case
I. Writ of trespass: Immediate/direct harm
II. Writ of trespass on case: Indirect or consequential harm
B. Ives v. South Buffalo Ry. Co. (Court of Appeals of NY, 1911)
I. Facts
a. Plaintiff injured on job (switchman): “solely by reason of a necessary risk or
danger of his employment.” Plaintiff does not claim fault on his own part.
Wants compensation under article 14-a of the Labor Law, enacted in 1910 by
NYS legislature.
i. According to 14-a, it doesn’t matter who’s at fault or whether anyone is
II. Rests on six propositions
a. Constitutions trump statutes.
i. Courts decide when constitutions conflict w/ statutes.
ii. indisputable
b. Federal and NYS constitutions have similar but not identical due-process clauses
that guarantee against deprivation of property without due process of law.

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 i. indisputable
c. Due process of law means that defendant entitled to be judged by same
principles of law operating at time of adoption of constitution.
i. This is key.
ii. If this and propositions 4 and 5 are valid, case correctly decided.
iii. If invalid, case not correctly decided.
d. No liability without fault is one of basic principles in place at the time of
adoption of US constitution.
i. Another key proposition, which isn’t true.
 Deodands
 If a piece of chattel (usually animal) caused a death, it would be
forfeited to crown and sold for profit
 Principle actually did appear in US law before Ives
 Act of March 31, 1868
 Dobbins’ Distillery v. United States
 marital relationship under common law
 Husbands vicariously liable for actions of wives
 Admiralty law
 Ship owners/operators obliged to care for sick/injured sailors
 Ship owner/operator did not have to be negligent
 Sailor could even be negligent
 Trespass (see next section)
ii. If this and propositions 3 and 5 correct, case correctly decided.
iii. If invalid, case not correctly decided.
e. NYS workers' compensation statute creates liability without fault.
i. If this and propositions 4 and 5 are valid, this case correctly decided.
f. Social, economic, and moral considerations do not count.
i. This rises and falls with prop. 3.
III. No workers’ comp yet
a. Common law governed relationship of worker to employer
b. Idea of contributory negligence
i. Employer had to be at fault for worker to get compensation
ii. Employee had to be free from fault in order to get relief
iii. If both were at fault: employee got nothing
c. Under workers’ comp: Employee must be guilty of willful misconduct in order for
employer to avoid paying
d. Difference between workers’ comp under statutes and under common law
i. Before statutes, employee had to prove employer’s negligence
 So-called “trinity of defenses”
 Contributory negligence
 In effect until 1960s–1980s
 Assumption of risk
 If worker proved negligence but employer showed that worker
continued to work in occupation despite known risks, plaintiff
could not recover
 Fellow-servant rule

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  If coworker caused accident and another person injured, employer
was not liable.
 Reasoning: By working next to someone on a regular basis,
worker knew their habits and negligence better than
employer did.
ii. Who decides
 Under statutes, it’s an administrator
 Under common law, court
iii. What can be recovered
 Common law: economic losses
 Lost wages
 Medical bills/rehab expenses
 Pain and suffering
 Pretty much no limits on recovery amounts
 workers' compensation
 Medical bills/rehab expenses
 Lost wages
 Typically 2/3 or 66%
 Cap on amounts: usually median wage
iv. When recovery received
 workers' compensation: when incurred (i.e., when medical bills need to be
paid; wages on schedule; etc.)
 Common law: whenever judgment is final
e. Arguments in favor of workers’ comp statutes
i. Loss distribution
 Costs of industrial accidents will be borne by those better able to pay for
them (i.e., employers) rather than those who can’t (i.e., employees)
 Costs will be shared with public via cost of products
 companies can raise prices to recoup
 Employers will be insured against losses
 Workers not good risk distributors (Calabresi)
 Underestimate accident risk
 bad idea to strictly apply fault concepts to workplace accidents
ii. Widows and children
 Most popular argument in 1911 (when Ives decided)
 Industrial accident was total disaster for worker—family bankruptcy, etc.
 But for company, just cost of doing business
iii. Fault system leaves many without compensation
iv. Prevents antagonism between employers and employees
 Loss minimization: If companies can anticipate future costs, will
implement ways to minimize risk, thus fewer losses/accidents
v. Common-law system is wasteful in operation
f. Influence of changes in tort law on workers’ comp and strict liability
i. In 1911, entirely based on idea of corrective justice/fairness
 somebody must be at fault

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  Philosophical underpinning: restoring equilibrium
 Injurer pays injuree.
ii. Compensation not in and of itself a goal of tort law
 Doesn’t inherently improve society to take money from one person and
give it to another
iii. Now
 tension between loss minimization/distribution and corrective justice
 Enforcing norms—what society allows and what it doesn’t
 Form of conflict prevention: nonviolent way to resolve disputes
g. Effects and philosophies of contemporary workers’ comp statutes
i. Some number of injuries inevitable
 Just part of industrial process
 Workers still need to be compensated
ii. Goals of workers' compensation statutes in 1911
 Loss distribution
 Loss minimization
iii. Can’t sue employer anymore (except in NYS)
 very few exceptions (they violate federal law, etc.)
 even if employer is negligent
 workers' compensation only
 no pain and suffering recovery
iv. Subrogation system: can only be compensated once
IV. How did Ives court get it so wrong?
a. Werner (who wrote opinion) moderate Republican
b. From 1870–1911, everything was fault/liability/negligence
i. Judges didn’t have access to hundreds of years of case law
ii. Just the past 30 years or so.
C. Even if defendant was engaged in lawful/necessary activity, is still liable for damages
resulting from that action
I. Weaver v. Ward (King’s Bench, 1616)
a. Two army bands were skirmishing as part of exercises. Plaintiff was shot by
defendant. Defendant argues that he did not mean to shoot plaintiff, that it was
accident, that he wishes it had not happened.
b. Is clear r/e no-fault liability
c. No justification for trespass unless defendant utterly without fault.
II. See also section “necessity.”
D. Shift of burden: plaintiff must prove negligence on defendant’s part, no negligence on
plaintiff’s
I. Brown v. Kendall (Supreme Judicial Court of Massachusetts, 1850)
a. Plaintiff’s dog and defendant’s dog in a fight. Defendant took stick and started
beating them to separate them. Defendant, whose back was to plaintiff,
accidentally struck plaintiff in eye when raising stick to hit dogs. Plaintiff
severely injured.
b. If fault had been fundamental principle at this time, plaintiff should have won.
c. Broadens definition of “inevitable accident”
i. New meaning: accident could not have been prevented with reasonable care

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 ii. Obliterated distinction in US law between trespass and trespass on the case
d. Plaintiff has burden of proof of showing that zie was using reasonable care and
defendant was not
e. If plaintiff sustains accidental harm when defendant is engaging in lawful and
proper act, defendant is not liable for damage unless defendant was not
exercising proper care in undertaking said act.
i. The burden of proof is on the plaintiff to show want of proper care.
f. If defendant using proper care when accident occurred, accident was involuntary
and unavoidable; he’s not liable.
g. If defendant negligent, plaintiff can’t recover without showing that damage
caused entirely by defendant’s act.
i. Plaintiff can’t be negligent (contributory negligence)
E. Conclusions
I. Defendant’s act had to directly produce injury
II. Possible that defendant may have prevailed at trial court by proving complete absence
of fault
a. But no written opinion clearly disallowing plaintiff’s recovery because of absence
of fault
III. Before 19th century, plaintiff didn’t have to plead/prove negligence in trespass action,
and defendant wasn’t able to prevail by proving absence of it.
a. Concept of negligence not sufficiently developed at that point
IV. Defendant could excuse harm only if caused by inevitable accident
a. The Case of the Thorns
F. Timeline of changing ideas of negligence:
I. 1466: no fault
II. 1807–1870: negligence overturns no-fault
a. Revolution in law between 1807 and 1870
b. Judges overturned no-fault liability that had been in place
i. What changed definition of tort liability from no-fault to requiring liability?
 Number of accidental injuries increased sharply during industrial
revolution
 Increasing focus during 19th century on morality and wrongdoing
 Second Great Awakening, WCTU, abolition, etc.
III. 1870–1960: reign of negligence
a. Mostly
i. If no other principles ruled, negligence was rule of law
IV. 1960–present: negligence as default
a. But many pockets of strict liability
i. Some pockets of no-fault liability present in 1911 grew throughout 20 th
century
G. Distinguishing fault and causation
I. Fault
a. Did defendant act with negligence?
b. Did defendant act with intention?
4. Forms of Liability Without Fault
A. Theories

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 I. Loss distribution (Calabresi)
a. Taking large sum of money from one person more likely to result in economic
dislocation (and secondary/avoidable losses) than taking series of small sums
from many people.
b. Even if total economic dislocation is same, people feel they suffer less if 10k of
them lose $1 than if 1 of them loses $10k.
II. Enterprise liability
a. Puts burden of accidents on most likely insurer
b. Directly accomplishes both interpersonal and intertemporal loss-spreading
c. Respondeat superior
i. Forerunner of modern enterprise liability
 Applies it to injuries to third parties
d. workers' compensation: applies enterprise liability to worker hirself
e. master = best insurer
i. Able to obtain lower rates
ii. More aware of risks
f. Cost of activity doesn’t change just because employee not authorized or acting
willfully
i. If it came out of enterprise, should be chargeable to that enterprise
 Like negligent torts
 Both should be reflected in prices
 But allocation of resources not so powerful/exact justification that exact
line between what arises out of enterprise and doesn’t needs to be
finely drawn
B. Necessity
I. In a situation where defendant chooses course of action (even if lawful/prudent) that
results in damage to plaintiff’s property, defendant is liable.
a. Incomplete privilege
i. Defendant has right to be there (not trespasser)
ii. but must pay restitution
b. Vincent v. Lake Erie Transportation Co. (Supreme Court of Minnesota, 1910)
i. Decided before Ives
ii. Defendant’s boat moored to plaintiff’s dock. Storm came up. Ship requested
tug; none available because of storm. Boat was kept tethered to dock;
banged against it during storm; $500 in damages. Plaintiff claims it was
negligent to moor at exposed part of wharf and to keep boat there after
storm got more severe. Judgment for plaintiff; defendant appealed.
iii. Intent is not a factor in trespass: damages awarded only per hurt or loss
iv. Necessity may require taking private property for public purposes, but
compensation required.
 Liability rule: defendant had right to use plaintiff’s property
v. Restitution/unjust enrichment
 One person may recover from another when one party obtains advantage
via fraud / undue advantage.
 Not a well-recognized doctrine
 Not a tort

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 vi. Precedent used: Ploof v. Putnam
 Boat owner not considered trespasser
 A party who acts to prevent a threatened injury from force of nature /
independent cause not connected to other party is said to be acting
under a necessity.
 Defendants acting under necessity have right to use property of
others in order to save life or more valuable property
 Is this the right precedent, though?
 Suggests negligence standard, under which defendants wouldn’t have
had to pay (unlike in Vincent).
II. See also Weaver v. Ward, above.
C. Abnormally dangerous activities
I. STRICT LIABILITY
II. Cases finding liability for abnormally dangerous activities usually fall into several
specific categories.
a. Hazardous waste disposal
b. Gasoline storage in residential areas
c. Toxic chemicals and gases
d. Blasting and storage of explosives
e. Escape of water and other liquids
i. Fletcher v. Rylands, below
III.Restatement provisions for abnormally dangerous activities
a. Restatement (Second) §520: provisions
i. Six factors (2HGECIV: Twice Henry, George, Edward Caught In Vacuum)
 Whether the activity involves a high degree of risk of some harm to
the person, land, or chattels of others
 Whether the gravity of the harm which may result from it is likely to
be great
 Whether the risk cannot be eliminated by the exercise of reasonable
care
 Whether the activity is not a matter of common usage
 Whether the activity is inappropriate to the place where it is carried
on
 Probably most important factor
 Something dangerous in one area might not be dangerous in another
 The value of the activity to the community
ii. Balancing test
 Don’t have to have all six
iii. Heavily criticized
 Should “appropriateness of the location” be its own factor, or should it just
help determine reasonableness of risk?
 Social value factor subjective
b. Restatement (Third) provisions (3FSCU: 3 Florida State Championships—Ugh)
c. An activity is abnormally dangerous if
i. the activity creates a foreseeable and highly significant risk of harm even
when reasonable care is exercised

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 ii. the activity is not a matter of common usage.
IV. Any person who brings a potentially dangerous thing onto his property does so at his
peril, and is responsible for any damage that thing may cause.
a. A person who uses land for a nonnatural use, or alters land, or introduces into the
land a natural condition in a nonnatural way, does so at his own peril.
i. Fletcher v. Rylands (Court of Exchequer, 1865)
 Plaintiff sank a pit for coal mining. Ten years later, defendants made a
reservoir near mine to hold water for their mill. During excavations,
ran into old coal workings, but very old and filled with dirt. Old coal
workings connected to plaintiff’s coal workings. Defendants not aware
of old workings, but appropriate care/skill not used by their employees
(who were aware) to ensure that the reservoir, when full, would be
able to withstand the weight of the water. Reservoir was filled; shaft
burst; plaintiff’s mine flooded.
 If water had occurred naturally on defendant’s land, its accumulation and
passage onto plaintiff’s property would not be defendant’s
responsibility.
 Ordinary use of land = no strict liability
 But this is nonnatural use of land
 Water/reservoir did not naturally occur there
 It isn’t clear whether use of the land has to be nonnatural, or that
the harmful agent be artificially there rather than naturally so
 Agriculture “natural” use, but people liable for damage by
escaping cattle
 Water wouldn’t have been there but for defendant’s act.
 Their innocence (lack of knowledge) immaterial
 Even if defendant exercises due diligence, is still responsible
ii. Yommer v. McKenzie (Court of Appeals of Maryland, 1969)
 The McKenzies live next door to the Yommers, who run a grocery store
and gas station. Mr. McKenzie noticed a smell in their well water;
turned out to be gasoline. McKenzies complained; Yommers replaced
tank. Water still undrinkable.
 Cites Restatement (Second)
 Weighs #5 (appropriateness) most heavily
 In general, gas stations not dangerous
 Putting a gas tank next to family well inappropriate to locale
 Activity may not be danger in itself, but may be abnormally so
in relation to surroundings
V. When negligence works as the controlling regime for torts liability in a particular
case, there’s no reason to use strict liability as the control.
a. Indiana Harbor Belt Railroad Co. v. American Cyanamid Co. (US Court of
Appeals, 7th Circuit [Posner], 1990)
i. At Louisiana plant, defendant loaded 20,000 gallons of acrylonitrile onto tank
car leased from another company. Taken via several carriers to plaintiff’s
switching yard in metro Chicago. Employees noticed liquid gushing from
its bottom outlet: lid broken. Took 2 hours to engage shut-off valve and

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 stop leak. About ¼ of the acrylonitrile had leaked. IL Dept of Enviro
Protection ordered plaintiff to take decontamination measures; cost was
$981,022.75. Plaintiff sued manufacturer to recover this amount. Two
counts on complaint:
 Tank car maintained negligently
 Transportation of that quantity of acrylonitrile through Chicago metro area
abnormally dangerous and thus defendant strictly liable to plaintiff
ii. Negligence: baseline common-law regime of tort liability
 When it works, no need to switch to strict liability
 Posner: best way to ensure safety precautions is to use negligence regime
 As a result of Posner’s opinion here, revisions to Restatement proposed
iii. Important Restatement factors here: can’t be eliminated by exercise of
reasonable care, inappropriate for location
 Leak not caused by inherent properties of acrylonitrile
 If tank car carefully maintained, chance of leak very small
 Thus transport of acrylonitrile is not abnormally dangerous
activity
 No reason to go to strict liability
 Which imposes liability for negligence here
 Inappropriate for location?
 Alternate route (minimization) unfeasible due to hub-and-spoke nature
of railroads
 Is more appropriate to ship hazardous material through metro Chicago,
or to live near railroad yard?
VI. contributory negligence and abnormally dangerous activities
a. If plaintiff was aware of risk from abnormally dangerous activity and chose to
encounter it, would probably be contributorily negligent
b. if plaintiff failed to appreciate danger of activity (even if unreasonably), wouldn’t
be contributorily negligent
c. In contributory negligence jurisdiction, plaintiff’s simple carelessness/negligence
would bar recovery
i. In comparative fault jurisdiction, would reduce recovery
D. Nuisance
I. History
a. Until 1890s/1900, nuisances were strict liability
b. 1910/1920: negligence regime takes over
c. Later, with Second Restatement, 3 different ways to define a nuisance (below)
II. Private nuisance
a. interference with plaintiff’s use and enjoyment of their land when such
interference is one of following:
i. Intentional and unreasonable
 Doesn’t mean intention to cause harm
 But defendant does know that behavior is offensive to plaintiff
ii. Negligent
iii. Abnormally dangerous activity that creates strict liability

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 b. Duty: use reasonable care to avoid interfering with neighbor’s use and enjoyment
of land
c. Not invasive injuries (one individual does not go onto another individual’s
property)
d. Difference between this tort and most others: defined by nature of plaintiff’s
injury.
i. Most others: Defined by level of egregiousness of defendant’s conduct
e. Public Service Co. of Colorado v. Van Wyk (Supreme Court of Colorado, 2001)
i. PUC upgraded aboveground electric line. Van Wyks and other residents sued
for nuisance on the behalf of all residents within 300 feet of the line,
alleging that PSCo acted intentionally by sending 230kV of electricity
through the line, creating noise, an electromagnetic field, and radiation
particles.
ii. Applies rule of intentional nuisance per Restatement (Second) of Torts, §825.
 If defendant persists with activity despite notice that “invasion interfering
with the use and enjoyment of the plaintiff’s property has occurred,”
that counts too.
f. When social utility of defendant is judged to be greater than harm caused, court
may grant a conditional injunction, allowing defendant to pay damages rather
than cease nuisance-causing conduct.
i. Boomer v. Atlantic Cement Co. (Court of Appeals of New York, 1970)
 OVERTURNED THE PRECEDENT
 Previously: nuisance  injunction
 Residents near a large cement plant filed charges alleging injury to
property due to pollution and vibration from plant.
 Environmental protection policies are government’s job.
 Conditional injunction
 Permanently closing plant would be economically devastating (loss of
jobs, etc.)
 Solution: Grant injunction unless defendant pays plaintiffs permanent
damages.
 Once these damages paid, plaintiffs/grantees can’t collect any
more: servitude on land
 Dissent
 This says that it’s OK to cause harm to others as long as you pay for it.
 Also, once damages are paid, defendant has no incentive not to pollute.
 So let’s say they had in fact granted injunction. What would have
happened?
 Probably defendant would have settled, bought out homeowners.
 Much higher settlement costs for defendant.
III.Public nuisance
a. definitions
i. Statutory: State legislature at any time can define anything as public nuisance.
 Main category of public nuisances
ii. common-law/Restatement: An interference with “a right common to the
general public”

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  Obstructing highways, interfering with parkland, etc.
b. Coming to the nuisance: plaintiff purchased property with advance knowledge
that nuisance exists
i. Restatement view
 Not an absolute defense as matter of law
 Just a factor to be considered
ii. More likely to be successful if defendant’s activity is appropriate for area and
plaintiff’s use isn’t
iii. Can also work against development: areas change and populations grow
iv. How to balance between defendant who didn’t do anything wrong and
homeowners who are being adversely affected?
 Spur Industries, Inc. v. Del E. Webb Development Co. (Supreme Court of
Arizona, In Banc; 1970)
 Defendant had built houses 2.5 miles north of Spur feedlot. Odors not
problem at that point. Webb continued to expand, but land became
difficult/impossible to sell. Webb sued: Spur feedlot nuisance
because of flies and odor.
 landowner can’t get relief if he knowingly moves somewhere near
agriculture/industry and suffers damage.
 But plaintiff not only party injured here
 Spur in fairly remote location; no way of predicting that new city
would spring up right next door.
 Solution: compensated injunction!
 Webb entitled to injunction because of damage to people who
bought his houses.
 However, Spur sustains damages from injunction.
 So Webb must compensate Spur for moving/closing.

Plaintiff’s entitlement (to Defendant’s entitlement (to

use land as zie sees fit
without being subject to
pollution)
Plaintiff gets injunction
Protected by a property rule
(traditional NY rule)
Plaintiff gets damages only
Protected by a liability rule
(Boomer)
use land as zie sees fit—
including polluting
neighbor’s land)
Plaintiff’s case dismissed
Purchased injunction (Spur
v. Del Webb)

E. Animals
I. A person is strictly liable for all damage done by any “wild” or dangerous animal
that they keep.
a. Damage must result from “dangerous propensity” typical of the species or of the
particular animal
b. Wild = not domesticated
i. Domesticated (per Restatement) = “by custom devoted to the service of
mankind”

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  Domesticated animals: assumed to be harmless unless it’s proven that
they’re not
 Liability rule: negligence
 Includes animals (bees, bulls, etc.) that can be dangerous
 Ownership of these animals serves social use
 Shouldn’t be discouraged by excessive liability
ii. Strict liability applies to wild animals as deemed by their class, not the
individual animal.
 Behrens v. Bertram Mills Circus Ltd. (Queen’s Bench Division, 1957)
 Plaintiff’s daughter brought her small dog to her parents’ concession
booth at defendant’s fair. Dog escaped and ran into elephant
procession, frightening the elephants. The dog ran into plaintiff’s
booth; Bullu the elephant followed, knocking down the front of the
booth, injuring the plaintiffs, and killing the dog.
 All animals not by nature harmless or not domesticated are assumed to
be dangerous.
II. Property damage caused by escaping animals:
a. Rylands v. Fletcher: strict liability
b. But in US, because of cattle roaming free in West, this rule didn’t develop to
same extent
F. Vicarious liability
I. Vast majority of torts are vicarious-liability torts
II. Respondeat superior
a. If employee commits tort during the “scope of hir employment,” the employer
will (jointly with the employee) be liable.
i. “scope of employment”
 generally, when tortfeasor acting with intent to further employer’s
business purpose
 even if method indirect/unwise/forbidden
 “frolic and detour”
 employee on business trip, goes on side trip
 traditional view
 on first leg of trip, employee not within scope of employment
 as soon as employee begins to return to path of original business
trip, back within scope of employment
 modern view: if deviation “reasonably foreseeable,” employee is
within scope of business
b. criticized, yet adhered to.
c. 2 justifications for holding employer liable
i. Loss distribution: employer can generally distribute the costs widely by
increasing costs of goods or having insurance
ii. Loss minimization: it will encourage employers to be more careful in
choosing and training employees.
d. Per the modern construction of respondeat superior, the government is liable for
damages done by service members while they are stationed at military
installations.

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 i. Taber v. Maine (US Court of Appeals for the Second Circuit, 1995)
 Defendant stationed on Guam, went on liberty. Started drinking by noon,
continued throughout day. Around 11:30 p.m., decided to drive off
base to get something to eat. Got in accident with a car driven by
plaintiff, who was severely injured. Plaintiff filed suit against Maine
and US government in federal court under Federal Tort Claims Act
(FTCA). Government moved for summary judgment, saying that
Maine’s conduct was outside scope of his military service. Summary
judgment granted, but suit proceeded against Maine. Judgment for
plaintiff; $300k in damages. Taber appealed.
 FTCA allows civil suits against government based on negligence armed-
services members acting “in the line of duty”
 Courts have equated “line of duty” with “scope of employment”
 Rodgers v. Kemper Construction Co.: After-hours social activities on
employer’s premises, if “a customary incident of the employment
relationship,” are included.
 Childers v. Shasta Livestock Auction Yard, Inc.: injuries don’t have to
occur on work site as long as activities that caused employee to be
dangerous to self/others occurred “within…scope of employment”
 What acts will the employer be held strictly liable for?
 Control: if fed govt had right to control the individual, then the govt is
liable
 Where employer has implicitly endorsed/permitted activity that led to
harm
 traditional test: is the employee acting to benefit or profit the
employer?
 New test from this case: The employee may be held liable for risks
that may fairly be regarded as typical of the enterprise.
 Drunken service member leaving government premises and
causing trouble obvious risk of general enterprise of military
base
 Older tests still used in most jurisdictions, though.
III. The employee must be either negligent or have committed a tortious act for there to
be vicarious liability.
a. Vicarious liability ≠ strict liability
IV. Contractors vs. employees
a. Employers not typically liable for actions of independent contractors
i. Contractors hired for task
ii. Employer has no right to physical control
b. to distinguish between employee and contractor:
i. courts sometimes look at…
 whether person works for one employer vs. multiple
 degree of expertise
 if high, person may be independent contractor
 but these are just factors
ii. test:

14
  was act carried out under employment?
 Did employer have right to physical control?
c. If a principal manifests that a contractor is an agent of the principal, such that a
reasonable person would have cause to believe that zie is dealing with an
agent of the principal, then the principal is vicariously liable for any negligent
conduct of the independent contractor.
i. Sword v. NKC Hospitals (Supreme Court of Indiana, 1999)
 Plaintiff gave birth at Norton (hospital). Norton’s services, including a
staff of “experts in administering continuous epidural anesthesia,”
were advertised throughout area. During labor, an anesthesiologist
explained the epidural procedure to her and prepared to begin the
procedure. A second anesthesiologist, Dr. Luna, inserted the epidural
tubing, then said that it “did not take” and reinserted it in a different
place. After delivery, plaintiff began to suffer headaches. Plaintiff also
feels numbness at site of the second epidural.
 Applicable tort theory: respondeat superior
 Master typically held responsible for servant’s behavior, but not so
with employer and independent contractor.
 Test r/e apparent agency
 Two parts
 whether employer acted in a manner that would lead a reasonable
person to conclude individual was an employee.
 Whether the injured reasonably acted in reliance on employer’s
manifestations.
 hospital will be deemed to have held itself out as a provider of care
unless it tells the patient otherwise and says that it’s given by an
independent contractor.
V. Nondelegable duty
a. Two classes
i. Inherently dangerous activities
ii. Safety statute
b. A person who engages in inherently dangerous activities and relies on contractor
to maintain instruments of those activities is liable for any damages caused by
those activities.
i. Maloney v. Rath (Supreme Court of California, In Bank; 1968)
 Defendant’s brakes failed, causing collision with plaintiff. Brakes had
been overhauled ~3 months before accident, and she did not know or
have reason to know that they were defective. Error in service during
overhaul.
 State statute: owner responsible for having car with brakes in good
working condition
 Safety statute creates nondelegable duty
 The concept of nondelegable duty exists to assure that, when negligence
leads to harm, the injured party will be compensated by person whose
activity caused harm and who is responsible for negligence of agent,
whether agent is employee or independent contractor

15
  Eliminates need for strict liability, because there will be a financially
responsible defendant.
 But somebody had to be negligent for this rule to kick in
 If brakes had just failed on their own (mechanical failure,
whatever), no one would be liable
 But because mechanic had been negligent, liability kicked in
 And because duty nondelegable, owner of car considered liable
even without showing of fault on her part
 inherently dangerous activity
 Cannot be done safely.
 common-law category
 Inherently dangerous: nondelegable duty
 abnormally dangerous: strict liability
 Unreasonably dangerous: product liability
 Why hold car owner liable when the mechanic screwed up?
 Loss distribution.
 Car owner most likely insured.
 This decision NOT followed by most jurisdictions.
5. Trespass
A. Any physical intrusion onto another’s property that interferes with hir interest in
exclusive possession
I. Can be intentional or negligent.
II. Harder to prove than nuisance.
III. Martin v. Reynolds Metals Co. (Supreme Court of Oregon, En Banc; 1959)
a. Defendant’s aluminum production plant released into the air gases and
particulates containing fluoride compounds, which made land unfit for raising
livestock. Plaintiffs’ cattle ingested these compounds via contaminated flora
and water. Trial court: damages of $91,500 for plaintiff.
b. In r/e intrusion on another’s land, better to define by energy/force rather than size
i. Particles are small, but are still a physical intrusion.
c. Tort of trespass composed of components
i. Character (including magnitude) of defendant’s conduct in causing intrusion
ii. Character (including magnitude) of harm visited on plaintiff
d. Damages from chemical particles direct and consequential
i. Thus within definition of trespass
B. Affirmative defense: necessity
6. Fault
A. Duty
I. Contemporary torts doctrine repudiates notion of degrees of care
a. general requirement to take care
i. rather than multiple “duties” whose breach = negligence
ii. More general scope of liability  less chance of exceptions
b. Exception: majority of courts require common carriers to exercise highest degree
of care
i. Why are common carriers held to higher standard of care?
 Risk of harm patently present when transporting people

16
  One party is in exclusive control of another
 Great disparity of power between parties
ii. Exception to exception: A common carrier owes due care to its passengers;
however, because of the nature of the business, due care for a carrier may
require more precautions than due care for a business with no human risk.
 Minority view
 Frederick v. City of Detroit, Dep’t of Street Railways (Supreme Court of
Michigan, 1963)
 Plaintiff sued city, alleging that she slipped on worn, dirty flooring of a
bus and fell down the step to the street. She alleged that because of
the city’s negligent omission to provide a railing on the step, she
fell and was injured.
 Common-law standard of reasonable care constant
 Even if it involves many precautions because of situation
 Why does it make a difference whether we call it due care (with
numerous precautions) or higher degree of care?
 Due care (with precautions) leaves determination of standard of
care to jury
 Higher degree of care puts requirements for care into law
 The carriers want this! They don’t want to go to jury.
II. Different extents of duty owed to different classes of people: employees, customers,
trespassers, etc.
a. Person can owe duty to another even without contract
i. If person/property in proximity to another person/property so that damage
might be done if due care not taken
 Proximity
 Not necessarily physical/geographical
 Close/direct relations such that one party knows the other will be
affected by their act
III. Conduct during emergency judged differently than everyday conduct
a. No liability for errors of judgment if they result from “the excitement and
confusion of the moment” (Wagner v. International Ry. Co.)
B. Negligence
I. Definition: the omission to do something which a reasonable man…would do, or
doing something which a prudent and reasonable man would not do.
II. Elements
a. Duty
i. Is a duty owed?
ii. What is standard of care?
b. Breach (violation) of duty
c. Causation
i. Cause in fact
ii. Proximate cause
 Aka, more properly, “scope of liability” [Restatement (Third)]
d. Injury
i. Usually tangible physical injury or property damage

17
 ii. No harm, no foul
III. What type of risk should defendant account for?
a. Reasonably foreseeable: Risks that are foreseeable to a person who has
undertaken a reasonably prudent investigation
i. UNIVERSAL CONSTANT OF TORT LAW
IV. If a person/entity exercises due care based on ordinary circumstances, they are not
liable for damage that occurs because of especially severe/extreme circumstances.
a. Blyth v. Birmingham Waterworks Co. (Court of Exchequer, 1856)
i. Large amount of water flooded from main into plaintiff’s house. Main-pipe
opposite plaintiff’s house was more than 18 inches below ground,
constructed according to best known system, materials sound and in good
working order. Defendant’s engineer suggested that possibly caused by
frost.
ii. Reasonable person would act according to average weather in ordinary years
 Not negligent because precautions inadequate against especially severe
frost, which froze ground much deeper than usual.
iii. Definition of negligence used by this court: Negligence is the omission to do
something which a reasonable man…would do, or doing something which
a prudent and reasonable man would not do.
V. Every time a person acts, zie owes a duty of reasonable care to anyone who
might reasonably foreseeably be injured as a result of actions
a. National Food Stores, Inc. v. Union Electric Co. (Missouri Court of Appeals,
1973)
i. Record-breaking summer heat wave. Defendant carried out first phase of
emergency load reduction: cut power to “interruptible customers.”
Skipped phase two; went to phase three of contacting 200 largest
industrial customers, asking them to voluntarily reduce usage. Skipped
phase four (notifying media); went to phase five, cutting service
periodically to various areas throughout metro St. Louis. Food in
plaintiff’s stores spoiled.
ii. Emergency doesn’t eliminate duty to exercise reasonable care to avoid undue
harm to customers when harm is reasonably foreseeable.
 Right to interrupt service ≠ right to do so without reasonable notice when
interruption anticipated and harm foreseeable.
 Duty to notify customer: from common law
 This principle not universally accepted among US states
 Southern and Western states: Plaintiff must identify
independent source of duty. No common-law obligation.
VI. D must act affirmatively to be held negligent
a. Yania v. Bigan (Supreme Court of Pennsylvania, 1959)
i. Defendant owns a strip-mine. Defendant asked decedent to help him start the
pump that removed water from a trench. Decedent jumped into the water
and drowned. Plaintiff claims that defendant incited decedent to jump into
water and made no effort to help him or get him out.

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 ii. Taunting and enticement into a dangerous situation do not constitute
actionable negligence when the victim is an adult in full possession of hir
faculties.
 Because the taunter/enticer was not legally responsible for putting the
victim in that position, zie does not have a duty to rescue hir.
iii. If you are affirmatively acting, you owe duty of care to those who are
reasonably foreseeably victims of this action
 But there’s not an obligation to act affirmatively, even if it’s reasonable to
do so and harm will occur if you don’t.
C. The reasonable person
I. Jury supposed to be his equivalent
II. Restatement (Second): person required to know everything r/e risk of harm that’s
common knowledge in community where conduct occurs
a. What about someone with exceptional skills/knowledge?
i. Expected to exercise them with reasonable attention and care
 Some courts disagree
III. A person must exercise caution such that a person of ordinary prudence would
observe; if not, zie is liable for negligence.
a. Vaughan v. Menlove (Common Pleas, 1837)
i. INTRODUCED THE REASONABLE PERSON
ii. Defendant charged with negligence in maintaining a stack of hay, which
spontaneously combusted and burned plaintiff’s cottages. The stack was
near the property line, and there had been discussion about the possibility
of fire, which defendant said “he would chance.”
iii. rule of law sez you can’t enjoy your property in a way that injures someone
else
iv. Rather than trying to figure out what best judgment would be for every single
defendant, stick to single “reasonable person” standard.
 The reasonable-person standard does not take into account
differences in temperament, intellect, or education.
IV. Mental and physical disabilities must be taken into account when determining
negligence.
a. Fundamental distinction in law between physical and mental disabilities
i. Physical: held to standard of ordinary reasonable person with whatever
disability it is
 can’t expect the impossible
 have warning of phys. dis. (visually)
 hard to fake identifiable physical disability
ii. Mental: held to objective ordinary reasonable person standard
b. A person with disabilities is required to exercise ordinary care to avoid injury; zie
is not required to exercise greater care than a person with no disabilities.
i. Memorial Hospital of South Bend, Inc. v. Scott (Supreme Court of Indiana,
1973)
 Plaintiff has MS, with symptoms including lack of muscle coordination
and impaired vision. While hospitalized, plaintiff needed to use the
restroom. Toilet flusher was located near the small of his back; bed

19
 pan hot-water knob was located at shoulder level. Plaintiff was not
warned that the bed pan hot-water knob was there. Plaintiff remembers
touching a knob, and then the hot water.
 Restatement (Second): contributory negligence is conduct on plaintiff’s
part that falls below standard zie is required to conform to for hir own
protection.
 Correct standard: What would reasonable man with similar
disabilities/infirmities do in same circumstances?
 Hospital’s negligence:
 Where knobs were located
 Staff didn’t inform defendant of hazard in flushing toilet
ii. no strict liability for car accidents stemming from disabilities
 Hammontree v. Jenner (Court of Appeal of California, 1971)
 Defendant driving home from work; plaintiff working in her/her
husband’s bike shop. Defendant’s car crashed through shop wall,
injuring her and causing damage to the shop. Defendant claims he
became unconscious and lost control of car during epileptic
seizure. Has medical history of epilepsy, but has been under
treatment for it and has followed docs’ instructions to avoid
seizures.
 Defendant judged by objective standard of reasonable person with
epilepsy
 He’d taken all necessary precautions
 Maloney v. Rath doesn’t apply here because that was statutory
 law imposes strict liability for nondelegable duties
iii. This is inconsistent with most American jurisprudence on topic
 Menlove is prevailing standard
c. A person institutionalized with a mental disability who does not have the capacity
to control or appreciate his or her conduct cannot be liable for injuries caused
to caretakers who are employed for financial compensation.
i. Gould v. American Family Mut. Ins. Co. (Supreme Court of Wisconsin, 1996)
 Defendant was insurer for Roland Monicken, who suffered from
Alzheimer’s. Ms. Gould, who was head nurse at the facility where he
lived, suffered personal injuries when Monicken knocked her to the
floor.
 Most jurisdictions: mentally disabled adults held responsible for torts they
commit (German Mut. Fire Ins. Soc’y v. Meyer).
 rationale
 if loss has to be borne by one of two innocent people, it should be
the person who caused it
 inducement for family, etc., to keep mentally disabled person from
causing harm
 Also, people won’t feign insanity to get out of wrongful acts
 Circumstances of this case negate Meyer rule
 Ms. Gould not innocent member of public who couldn’t predict
harm

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  She was employed to handle dementia patients
 Was aware of risks
 Too great a burden on Monicken: disorientation/outbursts were the
reason he was hospitalized
 Monicken’s relatives did everything they could to restrain him (by
putting him in secured dementia ward)
 Monicken obv not faking it
d. What about person of exceptional ability?
i. A professional in recognized profession is typically held to higher standard
ii. A person of exceptional ability (stronger than most, smarter than most, etc.)—
not a clear legal answer.
 Restatement (Second): Held to higher standard.
 Some courts say no different standard.
iii. Generally if person is not discernibly exceptional (either gifted or disabled)
such that other people have no warning, they’re held to ordinary
reasonable person standard
V. Children
a. Restatement (Third): Children held to a standard of reasonable children of similar
age, mental ability, and experience
i. Reasoning
 Can’t expect them to behave like adults
 Members of public can easily tell that they’re children
 And hence know to take care
 If suit involves kid who has gotten hurt, some element of what we’d
consider contributory negligence for an adult is usually present.
 But if child held to adult standards, would never recover in these cases.
 Kids don’t inflict that many tortious injuries on other people.
 Unlikely that anyone’s going to pretend to be a kid in order to get out of
liability
ii. Exception: When children engaged hazardous, licensed activities
(cars/boats/planes/etc.), held to same standard as adults
 Dellwo v. Pearson (Supreme Court of Minnesota, 1961)
 Defendant: 12-year-old boy. Plaintiff’s boat trolling at low speed with
40–50-foot fishing line behind it. Defendant was operating boat
with outboard motor; crossed fishing line, which got wrapped up in
his propeller; plaintiff’s reel came apart and hit her in eye.
 Why is there an exception here?
 Plaintiff couldn’t tell that boat operated by child
 Couldn’t protect herself
 Courts split on applying adult standard to “adult” activities beyond
licensed ones (hunting, golfing, etc.)
D. Respective roles of judge and jury
I. Judge determines if there is enough evidence for the case to go to the jury
II. Judge determines the law in the form of jury instructions
III. judge-made standards
a. In situations that frequently reoccur, standard of care should be set by court.

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 i. Lorenzo v. Wirth (Supreme Judicial Court of Massachusetts, 1898)
 Workers shoveling coal into coal hole on D’s property at night. Hole was
full so it looked even. Foreign woman walked on hole and fell in,
claims that there should have been sign/some sort of warning.
Ordinary reasonable person in Boston in the 1890’s would have known
of the danger but not a foreigner.
 Opinion (Holmes)
 directed verdict for D should have been granted on grounds of
insufficient evidence
 Also says the D can assume P has common knowledge of the public in
that locale.
 Dissent (Knowlton)
 more commonly accepted
 it is foreseeable that an immigrant wouldn’t know customs
b. OLD R00L: When a standard of conduct is clear, it should be laid down by the
court.
i. Baltimore & Ohio R. R. Co. v. Goodman (US Supreme Court, 1927)
 Decedent killed by train at RR crossing. Was driving a truck; hit by train
going at least 60 mph. Line straight, but plaintiff claims that decedent
not able to see after passing section house 243 feet from crossing; had
been going 10–12 mph, but then slowed down to 5–6 mph 40 feet from
crossing. It was daylight; he knew the area.
 Holmes: Due care usually left to jury, but this is standard of conduct.
ii. Overruled by Pokora v. Wabash R. Co., below.
c. N00 R00L: Strict rules for standards of behavior likely to be too inflexible.
i. Pokora v. Wabash R. Co. (US Supreme Court, 1934)
 Similar set of facts to Goodman.
 Cardozo: Court should be cautious r/e framing standards of behavior that
amount to rules of law
 Esp. when there’s not much background for these sorts of situations
and standards have not had a chance to emerge
 Rules then not reflection of customary behavior, but developed
artificially and imposed from without.
E. Cost-benefit analysis
I. a reasonable person is a rational person, and therefore makes decisions using a cost-
benefit analysis.
a. Negligence is failing to follow cost- benefit analysis.
II. Theories
a. Learned Hand formula
i. an economic meaning to negligence
ii. B < L x P
 the Probability that his conduct will injure others
 the seriousness of the injury if it happens (L)
 Burden of avoiding risk
iii. Solution always involves preference or choice between incommensurables

22
  Goes to jury because their decision thought most likely to accord with
commonly accepted standards
b. Restatement (Second): the risk is unreasonable and the act is negligent if the risk
is of such magnitude as to outweigh what the law regards as the utility of the
act or of the particular manner in which it is done.
c. Posner
i. Main function of fault system: make rules of liability to ensure efficient (cost-
justified) level of accidents and safety
 If cost of safety measures > benefit gained by incurring that cost, then
better economically for society not to prevent accident
ii. In negligence, D is liable only when he makes a wrong decision using a cost-
benefit analysis.
d. Fundamental issue of tort law: whether fault-based system or strict liability
standard will produce lowest accident costs, costs of preventing accidents, and
transaction/admin costs.
i. Coase Theorem
 In a world without significant transaction costs, the liability rule would not
ultimately affect the level of safety precaution.
 Market negotiations between actor and those affected by conduct
would achieve the same equilibrium.
ii. Calabresi
 Will any general rule for allocating accident costs, predicated on
negligence or not, will lead to optimal resource allocation?
 Transactions often expensive
 Often not worth spending both transaction costs and amount
needed to bribe someone to diminish accident-causing behavior
III. Duty to adopt all reasonable precautions, but if danger unforeseeable, unprecedented,
then not negligent.
a. Adams v. Bullock (Court of Appeals of NY, 1898)
i. Defendant runs trolley line, which uses overhead wire system. At one point, a
bridge runs above the road (and wires); it’s commonly used as a shortcut,
and kids play there. Plaintiff came across bridge swinging 8-foot wire. It
hit electrical wires; plaintiff shocked and burned.
ii. no reasonable way to prevent child hitting trolley cable with wire
 No vigilance could have predicted how/where this accident might have
occurred.
 Defendant exercised reasonable precautions.
iii. When exercising lawful franchise, not liable for those dangers that are not
within the ordinary prevision.
iv. costs of putting the trolley line underground much greater than the cost of an
unlikely risk of harm
F. The role of custom
I. OLD R00L: If the tools, systems, and appliances provided are safe if used with
reasonable care and are standard to the industry, the employer is not liable for
accidents.
a. Lehigh & Wilkes-Barre Coal Co. v. Hayes (Supreme Court of PA, 1889)

23
 i. Plaintiffs’ son worked in defendant’s mine. Large car of coal drawn from
chute; a large amount of coal fell on the decedent and killed him. Plaintiffs
charge that decedent should have been warned that car was about to be
drawn, but apparently decedent had asked via another employee for the car
to be drawn out.
ii. No evidence that machinery defective or constructed differently from
machinery in other mines
iii. No evidence of custom in coal mines to give warnings like this
iv. Employers must supply tools/appliances that are safe if used with reasonable
care, but they don’t have to be the best/safest available.
v. Era: height of robber barons.
 Confidence in free market
b. N00 R00L: Standard of custom ≠ standard of law
i. La Sell v. Tri-States Theatre Corporation (Supreme Court of IA, 1943)
 Plaintiff went to movie theatre, was seated by usher in row with step-up
between seats and aisle. Plaintiff got up, did not know step-up was
there, lost her balance and fell, hitting her head. Defendant had
motioned for directed verdict, claiming that theatre constructed and lit
in approved manner and as customary for lighting/constructing
theatres of this type.
 Correspondence with custom of trade/industry in most instances does
not establish defense as matter of law to negligence action
 Evidence of custom is admissible as evidence and can be considered
by jury
 Operators of hazardous businesses must assume burdens and take
precautions that an ordinarily and reasonably prudent person would;
these are considered due care for these types of businesses.
 Quotes The T. J. Hooper (Learned Hand)
 It’s possible for an entire industry to lag behind
 Sometimes jury’s sense of what’s negligent will differ from custom,
and that’s just fine
 Era: Great Depression had happened
 People didn’t trust free market anymore
c. Subsequent repairs/remodeling as evidence of negligence:
i. Black letter: If this is admitted as evidence, will discourage people from
making repairs. It shouldn’t be admitted.
 This rule has exceptions all over the place.
 Court made one here: Show that repairs feasible.
II. malpractice
a. Proof that care given accords with any practices accepted by any responsible
physician = malpractice shield in most courts
i. Consequence: requirement for expert testimony to establish standard of care
 When required in medical malpractice cases
 Risks of surgery
 Cause of injury
 When not required in med mal

24
  To show materiality of risks
 To show what reasonably prudent person would have done
 Whether doc has a duty to inform
 What about for nonmedical negligence cases? Expert testimony then?
 If it’s related to science/profession that average layperson won’t
understand, then usually expert testimony is required
ii. Three possible standards
 Same-locality rule
 Problem: If you need expert from within small community, conspiracy
of silence
 Same-or-similar-locality rule: look at location/environs as well as
communities that are similar to it
 1970s/1980s: trend away from this and same-locality rule (which had
been prevailing standards)
 General (national) standard: degree of care and skill of average qualified
practitioner
 Brune v. Belinkoff (Supreme Judicial Court of Massachusetts, 1968)
 Plaintiff had baby in New Bedford, MA. Defendant gave her 8 mg
of pontocaine. When plaintiff tried to get out of bed, fell down.
Ongoing numbness/weakness in left leg. Ample evidence that
condition came from excessive dosage of pontocaine. Some
docs said that 8 mg excessive and 5 mg or less proper; others
that 8 mg correct. Evidence that 8 mg customary in New
Bedford with a vaginal delivery.
 NEW STANDARD
 Locality rule overturned!
 Medical profession shouldn’t be split up into differing
geographic standards
 But OK to consider resources available as one circumstance
 How does this matter r/e expert witnesses?
 Have to have expert witness to testify what the standard of care is, and
an expert witness to testify that the doc breached the standard of
care
 In same-locale rule, someone else from community has to testify
 General standard: doc from anywhere (including major urban centers)
can testify
 Less likely to be biased
 BUT you can pretty much find an expert witness to testify to
anything
 So, backlash against this in 1980s
 Some jurisdictions have combined rules: same/similar-locality rule for
GPs, national standard for specialists
 MD has really crazy rule (p. 218): standard is same/similar locale with
same training and experience
b. Minority rules
i. can be held liable for malpractice even if actions customary practice

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  Canterbury v. Spence (Court of Appeals for the District of Columbia,
1972)
 Doc told plaintiff he needed surgery. Plaintiff didn’t object or ask r/e
specifics. Plaintiff’s mom asked whether operation serious; doc
said “not any more than any other operation.” Plaintiff had surgery,
seemed to be recovering, but then had fall in hospital. Left
unattended while trying to use restroom. Paralysis almost total
from waist down.
 Doc not telling plaintiff r/e risk of paralysis = prima facie violation of
doc’s duty to disclose
 Due care r/e disclosure = …
 therapy alternatives, goals, risks in nontechnical terms
 Benefits of treatment/what could happen if person doesn’t have
procedure
 How in-depth does doc have to go?
 Custom standard (majority rule)
 Materiality standard (this case): Info to which reasonable
person would attach significance in decision whether to
proceed with surgery.
 Doesn’t apply in certain situations
 Patient unconscious/incapacitated
 When disclosure unfeasible/contraindicated from medical point
of view (as in, person will freak out and have heart attack)
—category narrowly defined
 Duty to disclose shouldn’t depend on common practice in community
 Docs shouldn’t just be able to set standard for themselves
 courts still disagree on this
 Must be causal relationship between nondisclosure and harm to patient
 i.e., info disclosed would have made patient decide against
treatment
 Objective test (minority rule): what would reasonable person
have done if they had known this info?
 Subjective test (majority rule): what this particular patient
would have done
 Duty-to-disclose cases: focus more on nature/content of doc’s
disclosure than on patient’s understanding
 Main inquiry: did doc fulfill obligation of disclosure?
 Different from “informed consent,” which considers patient’s
comprehension as decisive factor
ii. Sometimes courts will say that decision/action leading to injury wasn’t
medical decision (frame as administrative decision, etc.)
G. Negligence per se
I. General rules
a. plaintiff must be among class of individuals statute intended to protect and
injuries are the variety the statute designed to prevent

26
 b. Where a statute or municipal ordinance imposes upon any person a specific
duty for the protection or benefit of others, if he neglects to perform that
duty he is liable to those for whose protection or benefit it was imposed for
any injuries of the character which the statute or ordinance was designed to
prevent, and which were proximately produced by such neglect.
i. CLASSIC FORMULATION OF NEGLIGENCE PER SE DOCTRINE
ii. Osborne v. McMasters (Supreme Court of MN, 1889)
c. Just because defendant complies with all statutes and regulations doesn’t mean
they’ve done enough to avoid liability for negligence
II. If defendant violates a statute designed to protect against the type of harm defendant
has caused, without excuse, that violation is negligence per se.
a. Martin v. Herzog (Court of Appeals of NY, 1920)
i. Plaintiff and her husband were driving in buggy and struck by defendant’s car.
Both thrown; husband killed. Car coming around curve. Plaintiff charges
driver with negligence in not staying to right-hand side of highway.
Defendant sez that plaintiff’s husband negligent because was not using
lights. Defendant not going too fast; nothing wrong with car.
ii. There was a statute requiring lights.
 Not just evidence of negligence
 not having lights is negligence.
 However, only liable for damages if not having lights causes harm
 Which in this case it can be inferred that it did.
 Violating this statute will likely cause harm
 driving without lights causes accidents
 Sometimes violation of statute can in and of itself prove that the
violation caused harm
 because this was the specific harm that writers of statute had in
mind
 Prima facie–sufficient case of contributory negligence
b. Why should criminal statute or regulatory law be considered basis for liability in
tort action?
i. Statutory interpretation
 Legislature knew that courts would use statutes in this way, so they
created them for this purpose.
ii. Ordinarily prudent person will defer to what legislature has done
iii. Reasonable people don’t violate law
III. What are advantages of negligence per se?
a. Creates certainty
i. Makes things more predictable for general public
ii. Guidance for individuals, juries—Holmes
IV. When can statutes be considered invalid as standard of care?
a. If they’re invalid based on federal/state constitutions
b. If they’re so obscure/outmoded as to make adoption as standard of care
inequitable
c. If in violating a statute, one is likely to prevent rather than cause the harm which
the statute attempts to avoid.

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 i. Tedla v. Ellman (Court of Appeals of NY, 1939)
 Plaintiff and her brother, John Bachek, were walking along a highway. It
was dark. They were hit by car; plaintiff injured; Bachek killed.
Highway: 2 roadways separated by grass plot. No footpaths. Legal to
walk there. 1933 statute mandates that pedestrians walking along
highway should stay to left of center line; plaintiff and Bachek did not.
 legislature could not have intended such an unsafe result (deaf man
walking on side of road with heavy traffic)
 statute may further cause of safety in ordinary circumstances, but may be
disastrous in emergencies
 people should do what is reasonable even if what they’re doing violates
law
 distinguish between two different kinds of statutes
 Some prescribe particular standard of care
 This just modifies common-law rule
 Which involved an exception
 Are we better off with general rules (à la Martin v. Herzog—world too
complex for ad hoc decision-making) or with individualized ad hoc
determinations (world will be safer if people use judgment to do
what’s best in situation—situation ethics)?
 Central division in all of law (not just torts)
d. One may avoid conclusion of per se negligence in the violation of a statute if the
violation is excusable.
i. Combs vs. Los Angeles Ry. Corp. (Supreme Court Court of California, in
Bank; 1947)
 Plaintiff got on car without noticing how crowded it was. Was last person
to board; was trying to get into car but still on step as car approached
next stop. Streetcar crashed into Joseph Commodore’s auto. Steps torn
from body of car; plaintiff thrown into street. He violated part of city
code saying that you can’t ride on steps of streetcars.
 3 approaches to unexcused violation of statute:
 majority: negligence per se
 substantial minority: evidence of negligence to be weighed by jury
 other minority: rebuttable presumption
 In this case: can rebut if behavior excusable/justifiable/what you’d
expect from person of ordinary prudence
 Excuses
 impossibility is an excuse no matter jurisdiction
 And so is emergency
V. Other types of laws as bases for negligence per se
a. Municipal ordinances
i. Most jurisdictions: yes
ii. Others: just evidence
b. Administrative regulations
i. Many courts: yes for federal and state
H. Conduct more egregious than negligence (willful, wanton, or reckless)

28
I. What’s willful/wanton/reckless?
a. Willful: obvious
b. Recklessness involves an intentional or unreasonable disregard of a risk that
presents a high degree of probability that substantial harm will result to
another.
i. The risk of death or grave bodily injury must be known or reasonably
apparent, and the harm must be a probable consequence of the defendant’s
election to run the risk or of his failure to reasonable recognize it.
 Sandler v. Commonwealth (Supreme Judicial Court of Massachusetts,
1995)
 P falls off bike in tunnel caused by uncovered storm drain and unlit
tunnel, vandals had broken the lights and stolen the drain cover.
Tunnel had been unlit for 13 years and it sometimes flooded, but
court ruled standard not met.
 Defendant clearly negligent
 But have sovereign immunity
 So have to prove recklessness in order to recover
 Reckless failure to act = intentional/unreasonable disregard of risk
presenting high probability that substantial harm to another will
result
 Risk must be known/reasonably apparent
 Harm must be probably consequence of defendant’s choosing to
take risk or failure reasonably to recognize it
 Defendant knew chronically unlit tunnel with missing drain covers
caused risk of harm
 Defendant didn’t respond reasonably to knowledge r/e danger
 Still, risk of injury doesn’t meet standard for recklessness
ii. Ordinary negligence ≠ reckless/willful/wanton conduct
 Not knowledge with substantial certainty
iii. Can be proved by both subjective and objective knowledge
 Subjective:
 Defendant knows of substantial risk and chooses to ignore it.
 Also if defendant has knowledge of facts that would make danger
obvious to anyone in that situation, sufficient
 Objective
 person knew risk even though direct proof lacking
 defendant, for fear of what might be learned, refused to consider
implications of facts
 reckless indifference to risk
 actor’s denial of actual knowledge of danger, while sincere, is still
disturbing
II. Why try to prove “Willful, Wanton, Reckless” (especially if negligence is a slam
dunk)?
a. Triggers punitive damages
b. Affects who can be sued
i. government can only be sued for what they consent to

29
  has to be reckless (Sandler)
ii. employee can sue employer if they can show reckless conduct
 can’t sue employer for common-law negligence because of worker’s comp
iii. trespasser can recover when they show injury to be reckless
iv. good Samaritan (i.e. voluntarily helps out) can be liable only for reckless
conduct
 Good Samaritan Statutes prevent suing of healthcare professional who
stops to help someone
v. child can sue parent for their reckless conduct
vi. judgments from claim from willful/malicious conduct may not be
dischargeable in bankruptcy
c. plaintiff’s contributory negligence doesn’t preclude recovery if P shows D was
reckless
I. res ipsa loquitur
I. in some cases, the mere fact of an accident’s occurrence raises an inference of
negligence so as to establish a prima facie case
II. Function of res ipsa loquitur is to aid P in proving elements of a negligence case by
circumstantial evidence
a. Procedural impact of res ipsa loquitur
i. Creates permissible inference of negligence
 Majority of courts do this
 Jury may find negligence if there’s no other evidence, but they don’t have
to
 Neither plaintiff nor defendant entitled to directed verdict
 defendant can rebut presumption through evidence
 Sullivan v. Crabtree (Court of Appeals of Tennessee, 1953)
 Decedent was guest in tractor-trailor that overturned. Was daytime;
conditions dry/clear. Defendant testified that there was loose
gravel on road, and pavement on right broken a little. Defendant
lost control of truck; truck swerved to left, went over shoulder and
down embankment.
 Plaintiff can’t prove facts showing negligence
 Going off road doesn’t necessarily mean negligence
 res ipsa loquitur not rule but appraisal based on value of
circumstantial evidence
 When car runs off road without obvious cause and results in harm,
driver’s negligence is normal inference.
 Another fact(s) may give explanation, take case out of realm of res
ipsa loquitur
 Facts of this case brought it within res ipsa loquitur
 Type of accident that usually doesn’t occur without negligence
 Cause was within driver’s control, or at least resulted from his loss
of control
ii. creates a presumption of negligence
 Ybarra v. Spangard (Supreme Court of California, 1944)

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  Plaintiff consulted Tilley, who diagnosed appendicitis; arranged for
Spangard to do appendectomy at hospital owned/managed by
Swift. While on operating table, Reser laid him back against 2 hard
objects at top of shoulders. Previously, no pain in/injury to right
arm or shoulder, but after waking up from operation had sharp pain
halfway between neck and point of right shoulder. Pain spread to
lower arm. Couldn’t rotate or lift arm; muscles around shoulder
paralyzed and atrophied.
 Defendants must prove they were not negligent
 because they had control over instrumentalities
 When plaintiff receives unusual injuries while unconscious, all
defendants who had any control over plaintiff’s body or
instrumentalities must counter inference of negligence.
 Basically wipes out requirement for exclusive control
 it’s enough that patient can show injury resulting from external
force while zie was unconscious
 Number/relationship of defendants doesn’t determine whether res ipsa
loquitur applies.
 functions like strict liability, even though it’s technically negligence
claim using res ipsa loquitur
 Policy justifications
 No way for plaintiff to know who did what
 So put burden of proof on people who do know
 Concurrent control of instrumentality
 They had control at the same time; they should all be liable.
 Most important: without this presumption, plaintiff would never be
able to recover.
 Medical personnel, not unconscious patient, in best position to
prevent losses that occur during surgery.
 They’re insured: can spread loss of damages.
 They owe patient high degree of care
 Without this, you’d have to go to strict liability in order for
plaintiff to ever be able to recover.
 This at least allows defendant to rebut presumption of
negligence.
 if defendant does nothing (offers no evidence of nonnegligence), court
should direct verdict for plaintiff
 if defendant does present evidence of nonnegligence, it’s up to the jury
 shift in burden of production to defendant
 have to produce evidence in order to avoid directed verdict
 burden of persuasion still with plaintiff
iii. burden of production and burden of persuasion shifted to defendant
 burden of production: if defendant doesn’t produce any evidence, plaintiff
wins
 burden of persuasion: even if defendant produces evidence, still up to jury

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  Traditionally, plaintiff had to produce preponderance of evidence to
convince jury.
 This: if res ipsa loquitur invoked, defendant has to produce
preponderance of evidence
 If jury undecided/it’s a tie, must find for plaintiff.
 This is really unusual (most jurisdictions don’t follow this).
III. Restatement (Second) elements of res ipsa loquitur
a. ETP: ET, Phone
i. Exclusive control, Type of accident, Plaintiff not contributorily negligent
b. Accident must be of a kind which ordinarily doesn’t occur in the absence of
someone’s negligence
c. Accident must be caused by an agency/instrumentality within the exclusive
control of D
i. This element’s purpose: ensure that the injury was not caused by a third party
ii. Exclusivity requirement is not negated even when D shares responsibility over
the instrumentality with another, if another has physical control over
instrumentality, or if cause not clear
 There are times when a D has a nondelegable duty, which keeps defendant
from shifting by contract its responsibility for keeping an area used by
the public in a safe condition
 Colmenares Vivas v. Sun Alliance Insurance Company (US Court of
Appeals for the First Circuit, 1986)
 Plaintiffs Dilia and Jose were on escalator at airport. Handrail
stopped moving but steps kept going. Dilia lost balance; Jose
grabbed her and kept her from falling, but lost balance and fell
down stairs. Plaintiffs file suit against Sun Alliance Insurance
Company (airport’s insurer). Sun Alliance sued Westinghouse
Electric Corporation since they were responsible for
maintenance of escalators. No evidence of negligence.
 escalator handrail probably wouldn’t stop while escalator moving
unless someone was negligent
 Westinghouse maintained escalator
 most courts don’t require that control literally be exclusive
 Exclusivity requirement shouldn't be construed so narrowly as
to take from jury ability to infer that defendant negligent
when defendant responsible for instrumentality, even if
someone else also responsible
 General tort law policy not to let people contractually shirk
responsibility for maintaining safety in areas used by public
 Accident not due to voluntary act of plaintiffs
iii. Exclusive-control requirement hasn’t fared well under modern tort law
 Esp. in product-liability cases, things often go through several phases of
control
d. Accident must not have been due to any voluntary action on the part of P
IV. Restatement (Third) requirements for res ipsa loquitur: It may be inferred that the
defendant has been negligent when the accident causing the plaintiff’s physical

32
 harm is a type of accident that ordinarily happens because of the negligence of
the class of actors of which the defendant is the relevant member.
7. Causation
A. Generally
I. In tort law, connects plaintiff’s injury with defendant’s tortious harm
II. proximate cause
a. Sometimes referred to generally as “proximate cause” or “legal cause”
b. Sometimes “proximate cause” used as category term
i. Which may include…
 Cause in fact
 Proximate causation
 how far does liability extend?
 Factors
 Proximity
 Scope of duty
 Causal link
c. Plaintiff has burden of proof
i. Before can get to jury, has to introduce direct or circumstantial evidence that
shows that injury resulted more probably than not from defendant s
act/neglect
III. Not linked to negligence necessarily
IV. Constant in almost every area of law
B. Cause in fact
I. basic rule is that plaintiff must show that but for defendant’s negligent act/tortious
conduct, plaintiff would not have been harmed.
a. usual test of cause in fact
II. What is test of strength of connection?
a. Harm must be natural result of defendant’s tortious conduct
i. OLD R00L: Must exclude all other causes.
 Wolf v. Kaufmann (Supreme Court of New York, Appellate Division;
1929)
 Decedent found injured/unconscious at bottom of stairs in premises
owned by defendants. Hallway unlit, in violation of Tenement
House Law.
 Court: No proof that lack of light caused accident.
 Basic test of cause: Can it be said that but for cause, result would
not have occurred?
 So, can it be said that but for lack of light, decedent’s death
would not have occurred?
 Which seems inconsistent with Martin v. Herzog: decedent in class
of people statute is supposed to protect; this is the kind of
injury Tenement House Law is supposed to prevent.
ii. NOO R00L: Just has to be natural and probable result
 Reynolds v. Texas & Pac. R. Co. (Supreme Court of Louisiana, 1885)
 Plaintiff and family were at RR station, train running late. Train
arrived at 2 a.m.; passengers told to “hurry up” and get on.

33
 Plaintiff’s wife came out of brightly lit waiting room and onto unlit
outside steps; fell down past narrow platform at bottom and onto
slope beyond.
 When defendant’s negligence greatly increases chances of accident
and is of character naturally leading to occurrence of accidents,
mere possibility that it might have happened without negligence
not enough to break chain of cause-and-effect between negligence
and injury.
 Civil proof requires preponderance of evidence
 Presence of other possible causes doesn’t preclude finding for plaintiff
III. is liability owed to particular plaintiff?
a. Zone of reasonable apprehension (Cardozo, Palsgraf)
b. Natural and continuous sequence
IV. Is liability owed by particular type of harm?
a. Foreseeability
b. Test more like Andrews in Palsgraf
V. Causal link
a. Causal link: whether negligence increases likelihood of injury
b. but for cause and causal link both needed for cause-in-fact
i. if the accident would not have occurred without the actor’s violation of duty,
but the actor’s violation didn’t generally/empirically increase the chance
of the accident occurring, then causation not proven
 Berry v. Sugar Notch Borough (Supreme Court of Pennsylvania, 1899)
 Plaintiff running train car during windstorm; passed under large
chestnut tree; it got blown down, crushing car’s roof and injuring
plaintiff. Plaintiff’s car going faster than speed limit.
 Can’t be said that speed cause or contributing factor to accident.
 Car was right underneath it; couldn’t have prevented accident by
slowing down, having more time to stop, etc.
 Chance of tree falling on him same no matter what speed he was
going.
 Independent variables.
c. Most courts don’t use this
d. Unless fact pattern brings it up, don’t talk about it
i. If you see it, you’ll know
C. Foreseeability, duty, scope of risk, and proximity
I. proximate cause = limitation on liability
a. On exam: divide type of proximate cause questions
i. Does scope of liability apply to this type of plaintiff?
ii. Does scope of liability apply to this type of harm?
b. Even if defendant is negligent (the but-for cause or causal link), must be limits on
scope of defendant’s liability
i. Avoiding liability out of proportion with fault
c. hard to have proximate cause limitation and still have instrumental policies—cost-
benefit analysis, loss distribution, etc.—in tort law
i. Limits loss distribution

34
  more defendants = more people who can bear costs of loss
 and if everybody is held responsible, then everybody will be held
responsible for their actions
 on the inverse, people don’t have to consider remote but present
consequences of actions
d. Last-wrongdoer rule: there can be only one proximate cause of an event
i. Should be the one nearest in time to event
ii. Never widely supported
 But it does still pop up
II. Manner/extent of harm
a. Restatement (Second):
i. If conduct is substantial factor in harming somebody, fact that person didn't
foresee or should have foreseen extent/manner of harm doesn’t preclude
liability
ii. If afterwards, looking back from harm to person’s negligence, court thinks it’s
highly extraordinary that negligence could have caused harm, then may be
held not liable
b. An actor is still liable for negligence even if the negligence does not cause the
type of damage that would be expected.
i. Basically, the direct opposite of Wagon Mound 1!
ii. In Re Polemis and Furness, Withy & Co. Ltd. (Court of Appeal, 1921)
 Owners chartered ship to charterers. Owners to provide/pay for
provisions/wages of crew; charterers to pay for everything else. Ship
loaded at Nantes bound for Casablanca. Leak during offloading in
Casablanca; fire; ship destroyed.
 In order to have liability, some damage must be reasonably foreseeable
 If no foreseeable harm, no negligence
 Negligence = reasonable person would foresee that act would cause
damage
 If so, the fact that the resulting damage isn’t the type expected is
immaterial
 As long as act actually caused damage
iii. Most American courts follow this
c. Defendant is liable only for consequences of negligence which were reasonably
foreseeable at the time.
i. Basically, the direct opposite of In Re Polemis!
ii. Overseas Tankship (UK) Ltd. v. Mort’s Dock & Engineering Co Ltd. aka
Wagon Mound I (Privy Council, 1961)
 Defendant chartered tankship Wagon Mound; servants allowed oil to spill
over harbor in Sydney, Australia. Foreseeable that oil might foul
plaintiff’s drydock. Oil on water caught on fire; plaintiff s property
burned.
 Essential factor for determining liability: whether reasonable man would
have foreseen damage
 Shouldn’t depend on damage being “direct”/”natural” consequence

35
  dock owner was foreseeable plaintiff, but damage (oil catching on fire and
burning dock) not foreseeable harm
d. Aaaaaaand…let’s try this one more time. If a reasonable person would have
foreseen the risk, even if the risk was remote, then defendant is liable for
damages due to negligence in not trying to prevent it.
i. Overseas Tankship (UK) Ltd. v. The Miller Steamship Co. Pty. aka Wagon
Mound II (Privy Council, 1967)
 Same accident/set of facts as Wagon Mound 1. Defendant same, but this
time plaintiff is owner of ships docked at the wharf that burned.
 Difficult but not impossible to burn oil on water.
 risk of fire viewed as foreseeable by reasonable man acting as ship
engineer
 But infinitesimal chance doesn’t make it OK to ignore risk
 Must take precautions unless costs, etc., makes them unfeasible
 Which was not the case here
 No justification for dumping oil in Sydney Harbor
 Doesn’t overrule Wagon Mound I or take issue with Cardozo’s logic from
Palsgraf
 But sez that foreseeability manipulable concept
 So result comes close to idea that defendant responsible for all direct
consequences
e. the extent/amount of damage NEED NEVER be foreseeable.
i. “thin-skull” / “shabby millionaire” rule
ii. Only the type of risk needs to be foreseeable.
iii. Pretty much universally used in all courts
III. Unforeseeable plaintiff
a. Why is duty vs. proximate cause important?
i. Duty determined by a judge, but proximate cause determined by jury
b. Defendant’s act must be directly negligent to plaintiff in order for liability to
apply.
i. Palsgraf v. Long Island R.R. Co. (Court of Appeals of New York, 1928)
 Plaintiff waiting for train. Train going elsewhere stops at station. Dude
carrying package runs for it. Train already moving. Dude makes it, but
looks like he’s about to fall. Guard on car reaches forward to help him
in; guard on platform pushes dude from behind. Package falls onto
track. Has fireworks inside. BOOM! Explosion throws down some
scales at other end of platform, striking and injuring plaintiff.
 Things Palsgraf held to stand for:
 Duty (Cardozo)
 Policy/fairness/practicality (Andrews)
 Opinion (Cardozo):
 Idea is duty, NOT foreseeability!
 Majority rule in US courts
 Corrective justice opinion
 Tort law not social engineering.
 It’s person v. person

36
  “Negligence in the air” will not do.
 Defendant must owe duty of care to injured person.
 Risk reasonably to be perceived defines duty to be obeyed
 Duty of care owed to foreseeable plaintiff when harm within zone of
reasonable apprehension.
 Dissent (Andrews):
 Idea is policy/fairness, not direct vs. indirect nature of harm!
 Restatement (Third) takes this opinion
 Instrumentalist position
 Consistent with Learned Hand formula
 And with Calabresian principles of loss distribution and
minimization
 Fundamental disagreement with Cardozo r/e duty of care
 Negligence
 act/omission that unreasonably does/may affect others’ rights
 relationship between actor and those potentially harmed, but also
between actor and those actually injured
 act itself, not actor’s intent, that matters
 if there is unreasonable act and right that may be affected, there’s
negligence
 If there is negligence, actor is responsible if harm directly
results
 Due care is duty imposed on all of us to protect society from
unreasonable danger
 Not relational
 Can’t say as matter of law that plaintiff’s injuries not proximate result
of negligence
 Foreseeability just one of several factors
 Even jurisdictional split between Cardozo and Andrews

Graphic summary of above:

Plaintiff Type of Risk Extent of Damages
The unforeseeability of _____ Cardozo in Palsgraf Wagon Mound I n/a
precludes liability.
The unforeseeability of ____ Andrew in Palsgraf In re Polemis Thin-skull/shabby
does not preclude liability. millionaire rule

D. Substantial factor
I. Test of cause in fact
a. If but for test doesn’t work (multiple/indeterminate tortfeasors)
II. Test of proximate cause
a. If it’s not strong enough to be cause, it can still be substantial factor

37
 III. the Plaintiff must generally show
a. that the defendant’s negligent act or omission was a but for cause of the injury
b. that the negligence was causally linked to the harm
c. that the defendant’s negligent act or omission was proximate to the resulting
injury
IV. used to show that the injury would not have occurred without the action
E. Intervening and superseding causes
I. Most common set of problems arising under proximate cause analysis
a. Often person whose actions are closest in time to injury is judgment-proof
b. How to tell whether something that happens after defendant’s original act and
contributes to plaintiff’s harm breaks chain of causation?
II. Intervening cause: cause that contributes to plaintiff’s injury after defendant’s act or
omission has been completed
a. Foreseeable
i. Medical malpractice considered foreseeable
 If tortfeasor injures somebody and there’s subsequent medical
malpractice, original tortfeasor held liable for entire thing
 When tortfeasor’s negligence sets of chain of events that renders
plaintiff subject to malpractice at two hospitals, malpractice at both
is within scope of risk and original tortfeasor can be held liable for
entire thing.
 As long as injuries indivisible.
 Second tortfeasor is liable for 3rd tortfeasor only if 2nd’s malpractice was a
legal cause of injuries suffered at hands of the 3rd tortfeasor
 Modave v. Long Island Jewish Medical Center (US Court of Appeals
for the Second Circuit, 1974)
 Plaintiff injured in car accident, taken to LIJ. Alleges that she was
subjected to malpractice. LIJ didn’t have room for plaintiff, so
she was transferred to county hospital, Meadowbrook, whom
she claims further negligently aggravated injury.
 wrongdoer liable for ultimate result, even if negligence of
intermediary may have increased the damage
 Where third party inflicted original injury, first hospital, even if
negligent, isn’t necessarily liable for subsequent malpractice
 Only if first hospital’s malpractice was legal cause of injury
suffered at second hospital
 Plaintiff didn’t show sufficient causal connection
 Where malpractice at first hospital creates injury not inherent in
original, and this causes second hospital to take actions that
result in further harm, possible to hold first hospital liable
b. Can be any cause that happens after defendant’s act
i. Can be tortious act of another defendant
c. If it doesn’t break the chain of causation, both the original and intervening
defendants are held jointly and severally liable.
i. Indivisible injury
 Defendants can sue each other for contribution

38
III. Superseding cause: an intervening cause that breaks the chain of causation.
a. Unforeseeable
i. Intentional torts are unforeseeable and therefore superseding.
 Original tortfeasor won’t be held liable for subsequent harm
caused/exacerbated by somebody who commits intentional tort or
crime.
 Liney v. Chestnut Motors, Inc. (Supreme Court of Pennsylvania, 1966)
 Defendant owns garage/auto dealer in area with high number of
auto thefts. Employees left customer’s car double-parked
outside with key in ignition for 3 hours. Stolen by somebody
who drove it recklessly, striking plaintiff and injuring her.
 Defendant couldn’t have anticipated that this carelessness of
employees would result in harm suffered.
 Didn’t violate any duty to plaintiff
 So plaintiff not harmed by defendant’s negligence
 Even if defendant should have anticipated likelihood of theft,
nothing to put defendant on notice that thief would be
incompetent/careless.
 Nowadays jurisdictions split r/e following this rule
 Major exception to above: When the intervening, intentional act of
another is itself the foreseeable harm that shapes the duty imposed, the
defendant who fails to guard against such conduct will not be relieved
of liability when that act occurs.
 Bell v. Board of Education (Court of Appeals of New York, 1997)
 Plaintiff’s class went to park. Teacher gave permission for plaintiff
and friends to leave to get pizza. Before returning to school,
teacher took head count, discovered plaintiff missing. Plaintiff
in pizzeria when told class had left. Went to park, they weren’t
there; she headed home by herself. Encountered 3 boys. Raped
and sodomized her. Perps arrested and pled guilty to first-
degree rape.
 third-party crimes may be reasonably foreseeable consequence of
circumstances created by defendant
 when somebody’s job is to prevent criminal conduct, occurrence of
criminal conduct doesn’t break chain of causation
ii. The negligent defendant whose conduct creates or increases the risk of a
particular harm and is a substantial factor in causing the harm is not
relieved from liability by the intervention of another person, except where
the harm is intentionally caused by the third person and is not within the
scope of risk created by the defendant’s negligence.
 Doe v. Manheimer (Supreme Court of Connecticut, 1989)
 Plaintiff is meter reader for city. Saw man on other side of street.
Thought he needed directions, crossed street to help. He took gun
from bag and forced her through vacant lot onto defendant’s
property. Area has building on one side, retaining wall in back,

39
 view blocked by bushes and tall grass. Assailant raped plaintiff,
then fled; has never been caught.
 Negligent conduct as cause in fact doesn’t automatically = substantial
factor
 Harm must be of same “general type” as foreseeable risk created
by defendant’s negligence
 In this case, e.g., tripping over rubble
 Also, shielding could have been provided by something validly
placed there
 defendant owes no duty to plaintiff
 Stranger
 Abduction didn’t occur on his property
 Doesn’t have duty to protect those on public sidewalks and
streets
 Where intervening act intentional: third person assumed control of
situation
 Responsibility shifted to hir
 But some intentional acts may be foreseeable and thus within
scope of created risk
b. Original defendant is no longer held liable
c. Subset of intervening cause
d. Legal conclusion
e. If second cause is tortious on somebody else’s part, that person can be held liable.
F. Multiple tortfeasors
I. If the actions of two defendants are the cause of an indivisible injury, both defendants
are liable for damages, even if they did not act in concert.
a. Corey v. Havener (Supreme Judicial Court of Massachusetts, 1902)
i. Plaintiff deaf. Was driving slowly in wagon. Defendants passed plaintiff on
each side: going fast on motor tricycles making a lot of noise and emitting
smoke/steam. Plaintiff’s horse spooked, but he got it back under control;
then he passed defendants, at which point horse shied and he lost control.
Wagon wheel hit another wagon; plaintiff and his wagon both harmed.
Neither plaintiff nor witnesses able to say which defendant/vehicle caused
horse to spook.
ii. Jury: both defendants committed wrongdoing.
 Doesn’t matter that they didn’t conspire to do it
 Or that not possible to tell what percent committed by each
iii. If more than one person contributes to injury, can be sued either separately or
jointly.
II. Indeterminate tortfeasors
a. When two defendants are negligent and a third party is injured, the actions of both
defendants are considered the proximate cause of the injuries unless one
defendant is able to show that hir actions did not cause the harm.
i. Summers v. Tice (Supreme Court of California, in Bank; 1948)
 Plaintiff and defendants were hunting quail. Defendants were 75 yards
away but could see where plaintiff was. Quail flew 10 feet in air

40
 between plaintiff and defendants. Both defendants fired; one shot hit
plaintiff.
 Burden of proof should be shifted to defendants
 Both negligent
 So they should have to absolve themselves if possible
 Cites Ybarra v. Spangard
 Plaintiff has given evidence leading to inference of negligence which
was proximate cause of injury
 up to defendants to explain cause of injury
 In this case: can’t prove that injuries would have occurred but for actions
of each individual defendant.
 Under traditional but for test, plaintiff wouldn’t recover here
b. Market-share liability
i. NEW THEORY OF CAUSATION
 Calabresi and instrumentalists: causation doesn’t matter
 Doesn’t matter if entities held liable are not those that caused harm to
plaintiff
ii. Each defendant manufacturer is liable for the proportion of damages
corresponding to the market sales of the harmful product.
 Sindell v. Abbott Laboratories (Supreme Court of California, 1980)
 class action lawsuit, kids damaged by the drug DES which their
mothers took during pregnancy, couldn’t identify whose drug
damaged but the formula of each manufacturer was nearly
identical.
 When you’ve got innocent plaintiff and negligent defendants,
defendants should bear cost of injury
 Extension of Summers v. Tice
 In both, plaintiff not at fault for not providing evidence of
causation
 Loss minimization
 Broader goal of product safety
 Manufacturer in best position to discover/guard against defects and
warn of harmful effects
 Holding them liable will encourage them to do so
 Loss distribution: Defendants better able to bear cost of injury
 Following factors must be present for recovery:
 all the named defendants are potential tortfeasors
 fungible product (identical in harm and defect)
 P through no fault of her own can’t identify which D caused injury.
 substantially all of the manufacturers that created the defective
products during relevant time period are named as defendants
iii. Determination of market shares for various defendants: one of the most
difficult parts of market-share liability cases
 Skipworth v. Lead Industries Association, Inc. (Supreme Court of
Pennsylvania, 1997)

41
  Plaintiff born 9/18/1988. Hospitalized 3 times between 9/10/1990 and
5/8/1991 for lead poisoning; outpatient treatment 8/1991 and
6/1992. Resided in same house the entire time; building built ca.
1870. Testing revealed lead paint in multiple places around home.
 lead paint/pigment not fungible product
 differing formula = differing bioavailability of lead
 ingesting one kind of paint does not necessarily = ingesting
another
 impossible to determine market shares
 100+ years since building of house until end of production of lead
paint
 market has changed a lot—companies have left, started up
 can’t get all manufacturers in front of court
 almost certain that entities not producing lead paint that injured
plaintiff would be held liable
iv. Arguments for market-share liability
 Defendants, over range of cases, will pay damages corresponding to their
liability
 Loss distribution: these companies better able to pay than plaintiffs are
 Loss minimization: incentives for companies to test, to warn, not market
beyond FDA authorization
 Corrective justice
 They were negligent and caused harm
 Plaintiff is innocent
v. Usage of market-share liability
 17–18 states recognize market-share liability for DES cases
 total of 11 other types of cases for which market-share liability has
succeeded
 Skipworth has been controlling here
 Impossible to determine market share
8. Plaintiff’s conduct and related issues
A. Contributory negligence
I. P is contributorily negligent when…
a. plaintiff doesn’t exercise the amount of care which he should for his own
protection
i. P is aware of the danger and unreasonably proceeds in the face of it
 Exception: Ordinarily not contributory negligence to continue to work
when worker becomes aware of danger unless collective bargaining
agreement or custom of trade demands the worker to stop/report it
 Gyerman v. United States Lines Co. (Supreme Court of California, In
Bank; 1972)
 P is longshoreman, works in warehouse moving sacks of fishmeal,
noticed stacks were unusually arranged, complained to D’s
clerk but not to plaintiff’s own supervisor. P continues working
and moves sacks, they fall, he’s injured. Found contributory

42
 negligence; defendant negligent also in violating Labor Law
(unsafe working conditions)
 In unsafe conditions, plaintiff may exercise less care than normally
required to
 Has to give more attention to work
 Several factors to determine contributory negligence
 Worker may not be able to quit task when danger sensed
 Might not know who to complain to
 May be encouraged to work under unsafe conditions
 In this case: we have contractual duty and knowledge of custom to
determine standard of care
 Custom = evidentiary
 record doesn’t establish that plaintiff’s failure to report caused
falling sacks (and hence injury)
ii. P unreasonably fails to discover a risk
iii. required to exercise only that amount of care which ordinary prudent person in
same circumstance would
b. plaintiff’s conduct is a legally contributing cause cooperating with D’s negligence
in bringing on P’s injury
i. per Restatement (Second), plaintiff’s negligence legal contributing cause of
harm IFF…
 it’s a substantial factor in bringing about harm
 no rule restricts plaintiff’s responsibility
II. policy behind contributory negligence
a. Plaintiff’s conduct is intervening cause
i. But intervening cause is considered superseding cause only if it’s
unforeseeable
b. Discourage accidents: if P can’t recover, then he won’t risk the act
c. Prevent courts from aiding people who are at fault
d. Penalize P for being careless
i. Though defendant may be more culpable
e. Protect individual freedoms: businesses, entrepreneurs
f. Screens cases
i. Decreases # of cases filed, cases that go to trial, cases that go to jury
ii. but may unfairly reduce the number of claims
III. Burden of proof on D to prove by preponderance of evidence since it’s his affirmative
defense
IV. Last clear chance: if defendant had last clear chance to avoid accident, plaintiff can
recover even under contributory negligence doctrine
V. contributory negligence is not a defense to:
a. Intentional torts
b. Defendant is willful, wanton, or reckless
i. has to be extreme gross negligence
VI. only 5 states still use pure contributory negligence doctrine
a. MD is one!
B. Comparative fault

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I. Comparative fault systems: more cases filed, more cases survive summary judgment,
more cases go to jury
II. Before you get to comparative fault, two things must be true.
a. Defendant must be found negligent
i. Defendant’s negligence must be cause in fact and proximate cause of
plaintiff’s injury
b. Plaintiff must be found to be contributorily negligent
i. Plaintiff’s contributory negligence must also be cause in fact and proximate
cause of injuries
III. Types of comparative fault systems
a. “Pure” form: liability apportioned in direct proportion to fault
i. Li v. Yellow Cab of California (Supreme Court of California, In Bank; 1975)
 P making left across 3 lanes, D was speeding, both negligent, verdict for D
at trial court. Supreme Court overrules contributory negligence.
 Assumption of risk
 In CA, this defense overlaps that for contributory negligence
 Is actually composed of 2 separate defenses
 Which may not have anything to do with contributory negligence
 Merge assumption-of-risk defense into general system of assessing
liability proportionally to fault in cases where assumption of
risk is just variant of contributory negligence
 What about willful misconduct?
 contributory negligence ≠ defense to willful misconduct claim
ii. states adopting via judicial decision (~12) go for pure comparative fault
 as do several federal statutes
iii. Under this system, possible for plaintiff and defendant to recover against each
other
 Plaintiff recovers against defendant based on original suit
 Defendant recovers on counterclaim
b. Modified forms
i. These are what majority of states have.
 Usually the result of legislative comparative fault
ii. “not greater than” (“less than or equal to”)
 recovery reduced by percentage of fault attributable to plaintiff as long as
plaintiff’s fault not greater than defendant’s
 if plaintiff’s fault greater than defendant’s, plaintiff doesn’t recover
 states adopting through legislation tend to use this
 if 50/50 tie…
 Juries will often split evenly if not able to come up with anything else
 Under this system, each party gets half
iii. “50 percent” (“not as great as”) system: apportionment based on fault up to
the point at which plaintiff’s negligence equal to or greater than
defendant’s
 at that point, plaintiff can’t recover
 argument for: not morally right to let the person more at fault recover from
person less at fault

44
  argument against: maintains lottery aspect of contributory negligence
 just shifts it around
 adopted by minority of legislative-decision states
 if 50/50 tie, plaintiff gets nothing
c. South Dakota: Plaintiff’s negligence must be “slight” compared to defendant’s
d. Uniform Comparative Fault Act (1985)
i. consider nature of conduct of faulty parties
 Whether conduct inadvertent or not
 Magnitude of risk
 defendant’s superior or inferior capacities
 circumstances (i.e., was it an emergency?)
ii. extent of causal relation between conduct and damages
IV. Comparative fault and juries
a. Some jurisdictions make jury fill out interrogatories or special verdict forms
i. show total damages for plaintiff and percentages of fault attributable to
everybody
 Makes it difficult for judge to grant motion not withstanding verdict or
motion for new trial
 Hard for judge to say that reasonably jury couldn’t have reached that
result
b. Other jurisdictions: Jury just has to return general verdict
c. In “not greater than” and “not as great as” jurisdictions, should jury be told about
rules for plaintiff recovery?
i. They may not know that 50/50 split goes for defendant
 So they may think they split the damages for each party to recover evenly,
but in “not as great as” jurisdictions, that’s not the effect
V. Hold plaintiff’s degree of fault up against each defendant’s individually or against all
defendants combined together?
a. In “no greater than” and “not as great as” jurisdictions, this will make or break
recovery
VI. How does “last clear chance” work under comparative fault?
a. Kill it
i. don’t need it as palliative for contributory negligence anymore
ii. gives windfall to plaintiff, contradicting entire point of comparative fault
system
iii. supported by Li and Restatement (Third)
b. keep it: if defendant had last clear chance to avoid harm, plaintiff’s conduct not
proximate cause
VII. Problems with comparative fault
a. Jury apportionment of fault
b. Do courts themselves understand how to determine who pays what percentage?
c. How to determine…
i. Causation
ii. Extent to which parties departed from reasonably prudent care
d. Possible to have situation where more culpable party recovers more money
i. More negligent party is often injured the worst

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C. Plaintiff’s opportunity to minimize harm
I. under comparative fault, if a P chooses not to use an available, simple safety device,
the jury may consider it to reduce damages given to plaintiff.
a. Law v. Superior Court for the County of Maricopa (Supreme Court of Arizona,
1988)
i. Cindy Law hit the Harders with her car. They were seriously injured. Harders
filed suit against Cindy and her parents. Laws moved to compel discovery
of Harders’ use of seat belts.
ii. car accidents foreseeable
 everybody obligated to reasonably minimize foreseeable harm
iii. Under doctrine of avoidable consequences: plaintiff has a duty to use
reasonable care to avoid aggravating injuries from an accident.
 Nonuse of seat belt = failure to avoid foreseeable harm to self
iv. no windfall to tortfeasor
 under comparative negligence, might pay less than they otherwise would,
but not less than should
D. Assumption of risk
I. Confusion as to whether they are talking about a true affirmative defense or whether
just negating D’s duty to P
II. P assumes the risk of harm if he knows of the risk and voluntarily consents to take the
chance
III. complete defense at common law
a. plaintiff recovers nothing
IV. Contractual disclaimers
a. party can contract to disclaim liability for negligence
i. Exceptions
 intentional torts or willful/wanton/reckless acts
 gross disparity in bargaining power
 transaction of public interest as determined by Tunkl test
 six factors
 business is suitable for public regulation
 party performs service of great importance to public
 party holds self out to perform service to any member of public
 party has superior bargaining power
 party uses a standardized adhesion contract
 person or property of purchaser is under control of seller
 Seigneur court sez is more important to go by totality of
circumstances, though.
 Transactions more difficult to define but so important to the public good
that an exculpatory clause would be patently offensive to entire
community
ii. Seigneur v. National Fitness Institute, Inc. (Court of Special Appeals of
Maryland, 2000)
 woman joins health club, signs contract with exculpatory clause against
any negligence claim. Hurts her shoulder, instructor tells her to

46
 continue and she does. P has to have surgery, P claims agreement
wasn’t valid, court denies this claim: no recovery.
 adhesion contract doesn’t violate the exception if
 it’s not an essential service
 there are other competitors/choices
 exculpatory language was prominently displayed
 not transaction of public interest
 per Tunkl test
 per totality of circumstances
 Defendant = private corporation
 No obligation/legal duty to accept plaintiff as member
 Can insist on whatever terms it wants
 Plaintiff voluntarily applied for membership
 Agreed to terms
b. But must utilize unmistakable language.
i. Gross v. Sweet (NY)
 Plaintiff took parachute lessons from D and signed a release. P was
injured. Because D did not express intent clearly and in unequivocal
terms, was not free from liability for P’s injuries. The exculpatory
clause did not contain any language releasing D from liability for any
enhanced danger besides the normal danger in parachute jumping.
 Plaintiff might not realize they were signing off on accidents that occur
through defendant’s negligence, not just plaintiff’s own negligence or
ordinary accidents
 NY law frowns upon contracts intended to exculpate a party from the
consequences of his own negligence
 generally enforceable but subject to close judicial scrutiny
 unlike Seigneur (MD)
 must also be conspicuous.
c. Huge philosophical difference between Maryland and New York courts
i. Disagreement: do you trust the market to correct negligent behavior, or do you
believe in the necessity of the tort system?
d. Alternate approach: Dalury v. S-K-I, Ltd.
i. No disclaimers
ii. Businesses are best equipped to prevent negligence
iii. In this case, ski resorts hold themselves open to public
 Become public areas
V. Implied Primary Assumption of Risk (“No Duty” Cases)
a. There is no duty or violation of duty involved because P was naturally subjected
to the inherent risks of something that is obvious or common knowledge
i. When one is a sports spectator/participant, you are naturally subjected to the
inherent risks of the game (watching or playing)
 Brown v. San Francisco (App. CA 1950)
 P goes to a baseball game, sits in seats that were not covered by
protective screen. Hit by a ball. Had been to one game prior and

47
 hadn’t been paying attention at the instant game. Ample screened
seats. She sues for negligence, directed verdict for defendant.
 Really a no-duty case, but often referred to as implied-consent
 No duty owed by defendant to plaintiff.
 Stadium had to provide unscreened seats, but sitting in them or not
was patron’s choice.
 No further liability for stadium.
 Duty owned by proprietor is the same to all patrons
 Plaintiff’s specific lack of knowledge is irrelevant if inherent risk is a
matter of common knowledge
 Even if plaintiff had never seen the game played before, still no
duty.
 Owners assume that spectators know.
 Like Lorenzo v. Wirth
 If injured while participating in athletic event, person has impliedly
consented to injuries.
 Even if rules of game violated (modestly), that’s not enough to undo
consent.
b. Comparative negligence and assumption of the risk
i. When a P has reasonably encountered a known risk created by D, he should
not be barred from recovery.
 Blackburn v. Dorta (Supreme Court of Florida, 1977)
 Court tries to make sense of doctrine of assumption of risk; winds up
abolishing it.
 Minority opinion among courts
 Assumption of risk can be subsumed by contributory negligence.
 because if you unreasonably assume risk, you’re contributorily
negligent
 Master/employer not negligent if workplace is reasonably safe
 Will always be risks in workplace (or anywhere) that don’t
necessarily make defendant liable
 Employer doesn’t have duty to prevent reasonable risks
 Under traditional assumption of the risk, a parent entering a burning
house to save his child would be barred from recovery because he
voluntarily assumed the risk.
 The Court stated that this was unjust.
 reflects a trend towards abolishing assumption of risk
ii. most courts maintain a separate assumption of the risk defense
iii. in comparative fault jurisdictions, if plaintiff voluntarily encounters known
risk, jury will typically assign large percentage of fault to them
 but not always (heroic acts, etc.)
 in about half of the comparative fault jurisdictions, assumption of the risk
is still separate defense
 100% bar to recovery
 other half treat it as something to be considered under comparative fault
statutes

48
9. Apportionment of liability among defendants
A. Big public-policy issue
I. Defendants tend to be people with resources
a. no point in suing someone who can’t pay
II. Legislatures have dealt with this in a variety of ways state by state (40+ different
ways)
a. Law is still developing
B. Traditional doctrines of joint/several liability and contributory negligence
I. plaintiff can collect entire amount from one defendant or in some combo from all
a. Can’t collect more than total award amount
i. Will probably pick defendant with most resources
b. Defendant who has to pay more can’t sue another one to compensate
i. Courts not going to assess relative degrees of fault
 Courts not settling disagreements among wrongdoers
ii. Exceptions
 Indemnification
 one party held liable for tort, believes that other party should have paid
it. Can go after other party for entire amount.
 Vicariously liable employer could sue employee
 Contractual
II. If plaintiff contributorily negligent, collects nothing.
C. Uniform Contribution Among Tortfeasors Act
I. Most passed in mid-1970s
II. Basic rule: where defendant paid more than its fair share of judgment, could sue other
defendants to collect anything in excess of its fair share
a. Most states: Shares usually determined based on relative degrees of fault of each
party
b. Some states divide it equally among parties (3 defendants, each pays ⅓)
c. What if it’s split, but one defendant is indigent/judgment-proof?
i. Plaintiff still collects full amount
 Other defendant(s) get stuck with more than their “fair share”
III. What if one defendant settles?
a. Assuming plaintiff wins at trial, remaining defendant(s) pay difference between
settlement amount and total award amount
i. So plaintiff gets the full amount of her judgment
ii. Defendant(s) from trial can’t sue the one(s) who settled
 because otherwise defendant never off the hook after they settle
 and we don’t want to discourage people from settling
IV. what if there’s a codefendant beyond jurisdiction of court?
a. Other defendant(s) pay
V. What if codefendant immune?
a. Other defendant(s) pay
D. Comparative Fault and Joint/Several Liability with Negligent P and 2 or more Negligent
Ds
I. Majority rule: plaintiff should be able to collect all her damages from the solvent/non-
immune codefendant except those attributed to her fault

49
 a. Walt Disney World Co. v. Wood (FL)
i. Plaintiff injured in Grand Prix Ride when she was rammed by her fiancé
(husband at time of trial). Sued Disney World. Court found:
 Plaintiff 14% at fault, P’s spouse (codefendant) 85% at fault, Disney 1% at
fault
 Plaintiff and spouse (codefendant) are married
 can’t collect damages from spouse
 Joint/several liability is rule in FL at the time, so court enters judgment for
86% of $75K against Disney
 Disney is responsible for both defendants’ shares of fault
 Even though P’s conduct was found to be 14 times more egregious
than Disney’s and codefendant’s conduct 85 times more
egregious than Disney’s
ii. Correct decision under the law
 but seems intuitively unfair
II. What should the rule of J+S Liability be After Comparative Fault?
a. Old justifications of J+S Liability don’t apply now
i. P is not innocent
ii. Jury now engaged in determining fault
iii. P still getting full compensation despite being negligent and necessary cause
of the injury
b. 3 main approaches
i. Joint/several liability
 Disney was correctly decided and should be the law
 Joint/several liability should survive the emergence of comparative fault
 encourages joinder of deep-pocket Ds
 Good thing if you’re Calabresi (loss distribution)
 Bad if you’re Chamber of Commerce
ii. Proportionate (Several) Liability
 takes the approach that “stuff happens”
 each D is only liable for its proportionate share of fault
 if P is injured by judgment-proof defendant, then it’s the same as if
injured in random accident
 problem: this approach ignores that Disney’s negligence was found by the
jury to be necessary cause of P’s injury
 Injury wouldn’t have happened but for Disney’s negligence
 Even if it was only 1%
iii. Percentage-Of-A-Percentage Approach
 Gifford’s favorite
 American Law Institute approach
 reallocate the unpaid part of damages between the paying defendant and
the plaintiff
 in Disney, out of $100K…
 Disney pays 1% (their share of liability)
 then it pays 1/15 (1% Disney + 14% P) of insolvent codefendant’s
85%

50
 c. other approaches
i. Joint and several for economic damages, proportionate for noneconomic
ii. Joint and several for small amounts, proportionate for large amounts
10. Damages
A. Wrongful death
I. At common law, until mid-nineteenth-century, when plaintiff died, plaintiff’s claims
died.
a. So let’s say you’re injured, can’t work for five years, rack up lots of death, then
you die. Your claims are still being litigated. That litigation dies when you do.
i. Which could be really disastrous if decedent was breadwinner.
II. Around mid-nineteenth-century, most states passed wrongful-death and survival
actions.
a. State by state, so they vary a lot
b. Two kinds of claims
i. Survival actions
 Any claims decedent had at death survive death, can be brought by estate
ii. Wrongful death
 Losses experienced by survivors
 Who counts as “survivor” varies by state statutes
 Close family members can recover for…
 loss of income
 Amount decedent earned, minus living expenses, adjusted for
interest/inflation until projected date of retirement
 loss of companionship, parenting, etc.
 Household contributions (person mows lawn, keeps house, etc.)
 Funeral expenses
 contributory negligence
 If decedent contributorily negligent (or in jurisdiction that still
recognizes assumption of risk), estate steps into decedent’s shoes
 they’re subject to defenses decedent would have been subjected to
if that person were defending hirself
 What if survivor is contributorily negligent?
 Most courts: may reduce particular beneficiary’s claims, but it
won’t reduce other survivors’
 So if husband contributorily negligent in wife’s death, he may
recover less, but the kids won’t
B. Pain and suffering
I. Plaintiff’s lawyers will usually multiply medical expenses by a certain factor
C. Punitive damages
I. also known as exemplary damages
II. Only for willful/wanton/reckless conduct or intentional torts
a. given when jury believes that compensatory damages not enough to deter
defendant from engaging in such conduct in future
b. in contributory negligence states, even if plaintiff is contributorily negligence, can
still recover with punitive damages
c. trespassers (who can’t sue for negligence/ordinary torts) can recover this way

51
 d. employees can also recover beyond workers' compensation if employer
willful/wanton/reckless
III. Actually rare in torts
a. They tend to only show up only in intentional torts and commercial fraud
b. Punitive damages more common in “bad faith” contract claims other
business/employment claims
IV. either party can introduce evidence of wealth or lack there of, but it is not required to
seek punitive damages.
a. Kemezy v. Peters (US Court of Appeals for the Seventh Circuit, 1996)
i. P had not introduced evidence about D’s wealth. D states that no punitive
damages can be granted unless P produces such evidence. Posner states
that Ps do not have to present this; the reprehensibility of a person’s
conduct is not mitigated by his not being a rich person, and Ps are never
required to apologize for seeking damages that, if awarded, will precipitate
D into bankruptcy.
ii. Defendant can make poverty plea, but it’s up to them to do it
iii. Defendant can’t introduce evidence of plaintiff’s wealth.
 Not the point.
iv. No reasons for punitive damages have to do with defendant’s income/wealth
v. forcing plaintiffs to give evidence r/e defendant’s wealth could encourage
seeking punitive damages against whoever would be likely to be able to
pay them
 even if not justified
vi. would make discovery very intrusive
 and defendant wouldn’t be able to object
V. Tort reform and punitive damages
a. Many states in late 1980s–1990s enacted legislation limiting punitive damages or
making recovery more difficult
b. Corporations very concerned about them
i. Why?
 Punitive damage awards actually infrequent
 Typical amount is ~$30k
 But…
 Can be hard to tell on an actuarial basis how much punitive damages
will be
 Fairly easy to predict compensatory damages (even for pain and
suffering)
 Which are also paid for by insurance companies
 And not all liability insurance policies will cover punitive
damages
 Some states have laws preventing insurance policies from
covering punitive damages
c. Frequent state legislative reform r/e punitive damages
i. caps in absolute dollar amounts
ii. caps based on ratios of punitive to compensatory damages
 destroys purpose of punitive damages

52
  not big enough to be deterrent
iii. significant percentage of punitive damage awards goes to state instead of to
plaintiff (Calabresi!)
VI. US Supreme Court and punitive damages
a. 1989: started hearing constitutional challenges to them
i. Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc.: upheld
punitive damage award against argument that it violated excessive-fines
prohibition in Eighth Amendment
b. 1996: struck down award in BMW of North America, Inc. v. Gore
i. due process grounds
ii. tortious conduct: defendant didn’t notify purchaser of new luxury car that car
had been repainted to cover defects in finish
iii. several factors
 amount of award
 $2 million
 disparity of punitive damages to compensatory damages ($4000)
 modest level of reprehensibility of defendant’s conduct
 Lack of judicial guidance given to jury r/e when and in what amount
punitive damages appropriate
c. 2007: Philip Morris USA v. Williams
i. Total reversal of view of punitive damages
ii. Deceased smoker’s estate sues tobacco company. Jury awards $821k in
compensatory damages, $79.5 million punitive damages. Trial court
knocks down punitive damages to $32 million. Appellate court restores it.
US Supreme Court eliminates it.
iii. Opinion
 An award intended to punish defendant for harming persons not before the
court would amount to a taking of property from defendant without
due process.
 Standardless dimension to litigation
 Arbitrariness
 Uncertainty
 Lack of notice
 Evidence of harm to nonparties can show that defendant’s conduct posted
risk of harm to general public
 And that conduct reprehensible
 But jury can’t go any further than that
iv. Dissent (WASSUP J.P. STEVENS!)
 Why shouldn’t harm to persons not before court be taken into
consideration r/e sanctions for reprehensible conduct?
 Damages
 Compensatory: measured by harm defendant caused plaintiff
 Awarding these as remedy for third-party harm might be taking
without due process
 Punitive: punishment for public harm
 Not much difference between these and criminal sanctions

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  The purpose is retribution and deterrence
v. What does this mean at trial-court level?
 Plaintiffs won’t be able to introduce evidence on punitive damage claim
r/e how many other people harmed by defendant’s conduct
 What total amount of compensatory damages would be if all these
people came before court
VII. Calabresi: sovereign immunity from punitive damages doesn’t serve purpose
behind them.
a. Ciraolo v. City of New York (US Court of Appeals for the Second Circuit, 2000)
i. Woman sues NYC under federal civil rights law (42 USC § 1983). Claiming
compensatory and punitive damages stemming from illegal strip search.
ii. punitive damages ensure that wrongdoer bears all costs of actions
 even in case where compensatory damages are underassessed
 and thus conduct underdeterred
 cost/benefit analysis!
 rational actor will undertake activity when benefits exceed costs
 when other people pay part of costs, cost-benefit analysis distorted
 actor will have incentive to engage in conduct whose social
costs exceed benefits
iii. goal of tort system: ensure that defendants pay costs of conduct
 compensatory damages not always sufficient
 esp. if injurer tries to conceal harm
 harm that affects many people but each to limited degree general given
inadequate weight if only compensatory damages assessed
 injured party may not bring suit
 esp. if time/effort/stress of suit outweigh compensation
 and some people (esp. if poor) won’t/can’t sue even if injuries bad
iv. wrongdoer not going to be caught every time
 so charging them for more than value of individual harm necessary to
make conduct unprofitable
v. “windfalls” may induce undesirable behavior from plaintiffs and lawyers
 But will have deterrent effect no matter who they’re paid to
 but there’s no real reason why they should go to individual plaintiff
 except relatively small amount to induce victims to undertake lawsuits
 pay into fund to remedy unredressed harm from defendant’s conduct
b. weirdly, Posner agrees with this.
c. But US Supreme Court basically reversed in Phillip Morris USA v. Williams.
11. Immunity
A. affirmative defense
I. even if defendant’s conduct tortious and harmful to plaintiff, plaintiff couldn’t
recover because of identity of defendant or relationship of plaintiff to defendant
B. Interspousal immunity
I. origins in nineteenth century, earlier
a. legal notion that husband and wife single legal entity
i. that was discarded by late nineteenth/early twentieth century, but interspousal
immunity continued

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 II. traditional justifications
a. Lawsuit will create marital disharmony
b. Don’t want torts filed as companion to every divorce case
c. Inviting collusive fraud
i. But unmarried people (friends, whatever) can do this too
d. Usually the person is insured, so insurance company would be paying judgment
anyway
III. Modern status
a. Some jurisdictions have eliminated it across board
b. Some jurisdictions eliminated it for traffic accidents
i. Everybody has auto insurance, so litigation will be against insurance carrier,
not spouse
c. Other jurisdictions: eliminated it only in cases of outrageous, intentional torts
i. MD and VA are among these
ii. Some jurisdictions eliminate for some but not all intentional torts
d. Other jurisdictions: eliminated in traffic accidents and outrageous, intentional
torts, but not for other torts
C. Parental immunity:
I. Trend towards elimination/abrogation
a. But slower than with spousal
b. Mainly in three different contexts
i. Traffic accidents
 Parents likely to be insured
ii. Outrageous, intentional torts
 Sexual abuse
 intentional killing of other parent
iii. Dual capacity
 i.e., parent who is doctor treats and commits malpractice
 child can sue for malpractice
II. courts will not hold parents liable for negligence in core parenting activities
a. not liable for disciplining children
i. except in extreme/outrageous circumstances
ii. child protective system kicks in here
 otherwise, courts reluctant to intervene within families
D. nonprofit/charitable institutions
I. not immune anymore (mostly)
a. traditionally immune
i. reason: would divert funds from purposes for which funds had been
contributed
 would instead go to plaintiffs/lawyers
II. but what about religiously run hospitals? Liable for malpractice?
a. Private hospitals are
III. This has been abrogated either totally or to some extent
a. Though many jurisdictions have caps on damages
i. Often liable only to extent that institutions carry liability insurance
 Many (but not all) states require liability insurance

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  Though it’s standard to have it
 Some states still waive damages past liability insurance even though
they don’t require it
E. Governments (sovereign immunity)
I. State/federal
a. Opinion of the Justices (Supreme Court of New Hampshire, 1985)
i. Policy justifications for government immunity
 If we held governments liable, would take funds from other uses and give
them to plaintiffs/lawyers
 Would require tax increase
 Shouldn’t hold state liable for functions that only it can provide (police,
etc.)
 Would inhibit legislators and executive-branch officials from exercising
discretion—making policy choices
 If courts second-guess executive/legislative decisions, that’s violation
of separation of powers
 Ability to sue judiciary would impair functioning of courts and public
confidence in courts
ii. Arguments against government immunity
 Fundamental right to redress
 Historical justifications don’t work anymore
 Right have case heard in court
iii. Provisions
 Exercise of legislative discretion and ability of courts to give final
judgments and maintain confidence in judiciary would be impaired by
exposure to liability
 State immunized when exercising executive or planning function
involving basic policy decision characterized by high degree of official
judgment or discretion
 Intentional torts: should only be immune if employee reasonably believed
actions were lawful
 Should be liable for torts where belief was unreasonable, though
 State’s tort liability is vicarious
 So plaintiff has to prove that defendant lacked reasonable belief
but also that actions were within scope of employment
 Per-claimant and per-incident damage ceilings OK
b. Tort claims acts
i. Post–New Deal: government’s role has grown
 Government does many functions that private industry traditionally did
ii. State and federal
 State acts vary a lot
 Proposed New Hampshire act is fairly typical
iii. Immunity waived
 Governments, government agencies, municipalities
 But under certain terms and conditions

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  Usually only certain kinds of functions
 NH: policy choices immune
 Separation-of-powers concerns
 Recovery usually limited
 Special processes usually involved
 Different from common law
 Always more restrictive to plaintiffs
 Usually shorter statute of limitations
 Claim often presented initially to administrative body, not
courts
 Intentional torts
 Don’t want police officers constantly being sued
 NH: Liable only when acting on unreasonable beliefs
 Limitation on damages
 Common to most tort claims acts
 Tradeoff between willingness to bankrupt government vs. giving
citizens redress against government
II. Municipalities
a. Usually covered under state tort claims acts
i. Same terms as state
ii. Functions
 Governmental functions
 Entitled to same sovereign immunity as state
 Proprietary functions
 Ownership of public utilities, etc.
 Same liability as private competitor
 Line between these often not clear
 E.g., road maintenance
 Public roads/sidewalks: government function
 Roads/sidewalks in park: proprietary function
b. Federal suits against local/state governments
i. 42 USC § 1983: substantive law basis for most federal suits against local and
state governments/officials to remedy violations of federal law
 Monell v. Department of Soc. Servs.: limited liability of municipalities
under 42 USC § 1983 to cases in which plaintiff’s injuries result of
execution of government’s policy/custom
 doesn’t include vicarious liability for officers’ acts
 plaintiff often doesn’t have redress against municipality of
officer/employee who caused harm
ii. Can be sued under federal civil rights law for violations of constitutional
rights
 But only if injuries result from execution of customary government
policy/function
12. Liability of possessors of land / premises liability
A. Negligence standard deviates from “reasonably prudent person” standard
B. Invitees vs. licensees

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I. Invitees
a. occupier owes duty to discover unreasonably dangerous conditions and protect
invitees from them
b. Traditional view of invitee: visitor on premises for business purposes of defendant
i. Survives in places
 But gets stretched
c. Restatement (Second)
i. Public invitee: invited as member of public for purpose for which land open to
public
ii. Business visitor: invited for purpose directly/indirectly connected with
business dealings with possessor of lands
 Invitation to perjury: encouraging plaintiffs to lie and say they were on
land for business purposes?
d. Invitation: conduct justifying others in believing that possessor desire them to
enter land
II. Licensees
a. duty to warn licensees of concealed dangers known to occupier or which occupier
has reason to know and aren’t likely to be discovered by licensee
i. This is NOT reasonable duty to inspect
b. Restatement (Second): person privileged to enter/remain on land by virtue of
possessor’s consent
c. Permission: conduct justifying others in believe that possessor is willing for them
to enter if they choose
d. Social guests: typically held to be licensees
e. Emergency personnel (fire, police, etc.): usually held as licensees
i. Show up at weird hours
ii. Occupiers don’t have time to inspect
f. BUT meter readers, mail carriers, FedEx people, etc., generally considered
invitees
i. They come at regular hours
ii. Are there for business purposes
III. can be liability to both invitees and licensees for unreasonably dangerous conduct
a. but under different conditions
b. various implications/interpretations
i. differentiating criterion is invitation
ii. occupier requested visitor's presence vs. granting permission
iii. visit for visitor's benefit vs. mutual benefit of visitor and occupier
IV. When someone is present in a business building for business purposes, zie is owed
duty of care as an invitee. When someone is present for hir own convenience,
however, even with the owner’s tolerance, zie is at best a licensee and is owed no
duty of care.
a. Brosnan v. Koufman (Supreme Judicial Court of Massachusetts, 1936)
i. P entered D’s building to mail personal letter and was injured when the stairs
he was on collapsed. Building had corridor that many used as pass-through
between two major roads; it had a cigar stand, a telephone booth, and a
mailbox. P was not permitted to recover because he entered the premises

58
 for his own convenience: was licensee. P did not show that he was an
invitee: did not show that the mailbox was intended for public use (no
sign, no advantage to D). Therefore, D did not have a duty to inspect.
ii. People passing over private land for convenience, even with assent of owner,
often held to be licensees
 Unless construction/maintenance is such to cause people to believe that
it’s a public street
 when building used for business, visitors present for business purposes
generally have implied entitlement to duty of due care
 but if someone is there for convenience, is licensee at best
C. trespassers
I. A trespasser is owned no duty of care except in cases of willful or wanton negligence.
a. Exception: “attractive nuisance”
i. a child who is a trespasser is owed a reasonable duty of care because the child
did not appreciate he was a trespasser.
 In some jurisdictions, a child under any circumstance is owed this duty.
 In other jurisdictions, there is an “allurement doctrine”
 the attractive nuisance doctrine is applied if the child is “allured” to the
property.
ii. BUT in a state without an “attractive nuisance” law, a child’s age does not
exempt hir from trespasser status.
 Osterman v. Peters (Court of Appeals of Maryland, 1971)
 Four-year-old falls into a neighbor’s pool and drowns. County Code
requires that private pools be fenced and have a self- closing gate.
The parents claim negligence and negligence per se. However, P
cannot recover because the child was a trespasser.
 Even in case of statutory violation, plaintiff must have right, defendant
must have duty r/e that right, and plaintiff’s injury must be caused
by breach of duty
 Trespasser haz no right except in case of willful injury
 Mere violation of statutee doesn’t give right
 Violation only raises presumption of negligence in favor of
plaintiff entitled to assert it
 MD is only state without attractive-nuisance law
D. Trend towards eliminating common-law categories and declaring that all visitors’ right to
recover should be based on standard of reasonable care.
I. Licensee/invitee distinction abolished in 25 states
a. But not MD!
II. Though some maintain a separate distinction for trespassers.
a. Nelson v. Freeland (Supreme Court of North Carolina, 1998)
i. Dude #1 came to Dude #2’s house to pick him up for business meeting. Dude
#2 left stick on porch; Dude #1 tripped over it. Sued.
ii. Plaintiff could have been licensee or invitee
iii. Origins of trichotomy
 nineteenth century: used to take power from jury

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  judge could force jury to apply these rules instead of considering
whether owner acted reasonably in maintaining land
 created before negligence principles and reasonable-care standard in
existence
iv. Juries have applied negligence principles in every other area of tort law
v. Using reasonable-care standard doesn’t make owner an insurer against every
injury on property
vi. Trichotomy leads to irrational results
 Nuances that change entrant’s status are undefinable
vii. Using trichotomy to determine duty of care is contrary to modern social mores
and humanitarian values
 Person’s life not less worthy because zie is on land without permission or
with permission but without business purpose
 Gives landowner privilege of being careless
viii. Standard of reasonable care towards all lawful visitors
 Less confusing
 Jury’s attention focused on actual pertinent issue (owner behaved as
reasonable person?)
 Trespassers still in separate category
 Unfair burden on landowner
 They have no reason to expect trespasser’s presence
13. Products liability
A. intersection of tort law and commercial law
B. claims based on misrepresentation increasingly important
C. What’s a product?
I. Restatement (Third) §19a:
a. tangible personal property distributed commercially for use or consumption
b. Other items (real property, electricity, etc.) are products when context of their
distribution and use is sufficiently analogous to distribution and use of
tangible personal property
c. Excluded: human blood and tissue [per Restatement (Third)]
i. Public policy in favor of assuring availability outweighs policy of providing
compensation for injuries resulting from use
II. Raw materials can be subject to product-liability actions
III. strict liability also applies to free samples or promotional products
IV. strict liability applies to lease of new or almost-new product
V. results vary when seller provides injurious product as incidental part of another
transaction
a. Ladder in you-pick orchard: yes
b. Wineglass in restaurant: yes
c. Shopping cart in store: no
VI. How about sales or service?
a. Generally strict liability doesn’t apply
b. But services and products often provided together in one transaction
i. General rule: courts apply strict liability when product used up or consumed

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  Exception: doctors/hospitals rarely held to strict liability even if product
consumed during procedure
D. Early common law: manufacturer or seller not liable to remote purchaser with whom zie
isn’t in “privity of contract” for harm caused even by lack of care on part of
manufacturer/seller
I. plaintiff could only recover under common law if could show negligence and privity
or else warranty and privity
II. rationale: manufacturer/seller not under duty to remote purchaser—not in privity of
contract—to exercise care
III.Winterbottom v. Wright (England, 1842)
a. Driver of mail coach injured when it broke down. Sued defendant, who had
contract with post office to maintain coach.
b. Defendant’s original duty of repair came from contract
i. Thus extended only to other party to contract (post office)
 Plaintiff never contracted with defendant, so couldn’t recover either in
contract or tort
E. Development: could sue manufacturer when injury occurred from “inherently dangerous”
product
I. “things which in their normal operation are implements of destruction”—Thomas v.
Winchester
II. duty comes from foreseeability
a. If you have inherently dangerous product, it’s foreseeable that someone will be
injured
i. Foreseeability replaces privity
III. for some reason food always counted?!
F. No moar privity!
I. If product is likely to cause harm when negligently made, and manufacturer knows
that people other than purchaser will be using it, then manufacturer is liable for
injuries that it causes, even if there is no contractual privity between manufacturer
and plaintiff.
a. Product doesn’t have to be “inherently dangerous,” though.
i. Just dangerous if negligently made.
b. MacPherson v. Buick Motor Co. (Court of Appeals of NY, 1916)
i. Buick sold car to retailer; plaintiff bought car from retailer. Wheel spokes
defective; car collapsed; plaintiff injured. Buick had purchased wheel from
vendor, but could have discovered defect by reasonable inspection.
ii. Cardozo’s exception to privity
 example of exception swallowing the rule
 because, if someone is suing due to injury from product defect, if
plaintiff proves facts, the article is obviously dangerous if
negligently made
iii. Bases:
 Negligence
 Foreseeability
 Precursor to Palsgraf

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 iv. defendant had duty to inspect despite buying wheels from reputable
manufacturer
 responsible for finished product
 more probable the danger, the greater the need for caution
II. Even after MacPherson, still hard to recover in case of manufacturer negligence
unless plaintiff had direct contractual relationship with defendant
a. Chysky v. Drake Brothers
i. Plaintiff was waitress. Bites into cupcake made by Drake Brothers bakery;
there’s a nail inside it. She couldn’t recover: couldn’t show negligence, no
privity
ii. Bases
 Privity
 because no privity between defendant and plaintiff, no warranties,
express or implied
 Implied warranty
iii. If plaintiff can’t show negligence, still need privity at this point
 Couldn’t show negligence: didn’t know who messed up at bakery plant
 How can you have a nail in a cupcake without negligence?
 res ipsa loquitur
 no exclusive control of instrumentality causing harm
 baker  deliveryperson  restaurant  waitress
III. An injured consumer of a defective product may recover directly from the
manufacturer for breach of the implied warranty of merchantability, despite the
fact that zie never contracted with the manufacturer directly.
a. Warranties
i. Express warranty: guarantee by words or pictures
 Manufacturer represents that product will do a certain thing
ii. Implied warranties
 merchantability
 Not recognized when Chysky decided
 Goods are reasonably suitable for ordinary uses for which goods of
that description are sold
 Probably most important kind of warranty now
 fitness for a particular purpose
 Probably least important type of warranty
 Buyer relies on seller’s skill or judgment in selecting certain types of
goods
iii. MacPherson didn’t directly alter privity requirement for products-liability
actions based on warranty theories
iv. After MacPherson, though, requirement of privity between manufacturer and
injured consumer for express warranties was eroded
b. Henningsen v. Bloomfield Motors (Supreme Court of New Jersey, 1960)
i. Chrysler sold car with defective steering mechanism. Mr. H bought car from
Chrysler dealer (Bloomfield). Gave car to wife. Very shortly thereafter,
steering failed (wife not driving negligently, conditions good, etc.). Wife
injured.

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 ii. Important in US law…
 for two propositions:
 Warranty extends beyond original purchaser to third parties
 arguably, any people who are foreseeably injured as a result of
defect
 Ms. H didn’t buy, but husband did, so she’s a reasonably
foreseeable user of the car
 implied warranty without privity is same as strict liability
 strikes down disclaimer of implied warranties on grounds of
unconscionability
 contract of adhesion
 gross disparity of bargaining power
 regarded as great liberal, pro-plaintiff breakthrough
 first strict liability case
 since Escola was just concurrence (ideas but not actual decision)
iii. bases
 implied warranty
 foreseeability
iv. why not apply strict liability of food cases to autos?
 Both can bring harm to ppl
v. current legal climate not as pro-plaintiff
 since this case, people who can recover on implied-warranty have been cut
back
 many states limit to purchaser or family/household
G. Enter the doctrine of strict liability! Traynor in da house! Strict liability should apply
when manufacturer places article on market and it turns out to have defect that causes
injury to human beings
I. The ideas are present, but court not ready to hand down an actual strict-liability
opinion.
a. Escola v. Coca Cola Bottling Co. (Supreme Court of California, 1944)
i. Opinion: Plaintiff prevailed on res ipsa loquitur, but we don’t care about the
main opinion here: we want the concurrence.
ii. Concurrence
 Written by Roger Traynor
 Young justice on CA Supreme Court
 Manufacturer incurs absolute liability when defective article placed on
market without inspection injures somebody
 magic word: defect
 Manufacturer responsible for injury caused to any person who comes
in lawful contact with article
 Even if manufacturer not negligent, they were still responsible for
product reaching market
 Loss minimization!
 Manufacturer better able than public to anticipate hazards and guard
against them
 Risk of harm is constant and general

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  Should be constant and general protection
 Even if no negligence, public policy should set responsibility wherever
it will most effectively reduce harm caused by defective products
 Loss distribution!
 Consequences may be disastrous for people injured by defective
projects
 But risk of injury can be insured by manufacturer and distributed
among public as cost of doing business
 Food sales covered by absolute liability
 Why differentiate this from other products containing inherent
dangers?
 Manufacturer’s obligation to consumer doesn’t go away just because
manufacturing/distribution of products now more complicated and
with more intermediaries
 Makes more sense to make manufacturer, rather than retailer, liable
 Retailer just conduit
 Retailer can’t test product
 System of consumer suing retailer (who is under absolute liability to
consumer r/e goods sold)  retailer recouping by suing
manufacturer is really wasteful
 Consumer generally can’t figure out where negligence was
 res ipsa loquitur won’t always work
 doesn’t work if manufacturer couldn’t uncover defect by reasonable
inspection
 but even in that case, we want to hold manufacturer liable
II. time to stop screwing around, adopt strict liability in tort—actual decision this time,
people!
a. Greenman v. Yuba Power Products, Inc. (Supreme Court of California, In Bank;
1963)
i. Manufacturer makes and retailer sells power tool that can be used as saw,
drill, or lathe. Plaintiff buys. Using as lathe; piece of wood flies out and
hits him in head; he’s severely injured. CA law requires 90 days’ notice to
manufacturer of breach-of-warranty actions; plaintiff doesn’t give this.
ii. Roger T. in da house again: this time as chief justice!
iii. A manufacturer is strictly liable in tort when an article he places on the
market, knowing that it is to be used without inspection for defects, proves
to have a defect that causes an injury to a human being.
iv. Statute at issue doesn’t mandate that notice be given of breach of warranty
outside of contract of sale
 Inappropriate for court to use for injured consumers against manufacturers
with whom they haven’t dealt
 It’s fine as a commercial rule for immediate parties to sale
 But inappropriate for personal injuries and notice to remote seller
 So even if plaintiff didn’t give timely notice here, he can still bring
suit for representations made in brochure
v. Product liability is governed by law of strict liability in tort

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  Manufacturer and plaintiff no longer have to have contract
 Liability not assumed by agreement but imposed by law
 Manufacturer can’t define scope of its own responsibility for defective
products
vi. Strict liability exists to put costs of injuries from defective products on
manufacturers that put them out rather than on injured people who can’t
protect themselves
 Sales warranties ineffective for this
vii. Putting machine on market implies that it’ll safely do what it’s built to do
viii. To establish manufacturer’s liability, plaintiff just has to show that he was
injured while using product in the way it was intended to be used
III. requirements for proving strict liability:
a. Defendant engaged in Business of selling product
b. Product in defective condition Unreasonably dangerous to consumer/user
c. Defect caused Injury for which compensation sought
d. Defect existed at time of Sale
e. Product expected to and did Reach consumer without substantial change in
condition
f. BUISR: Boris Uses Iodine, Silly Russian
H. Restatement sections on product liability
I. Restatement (Second) §402A
a. Text
i. One who sells any product in a defective condition unreasonably dangerous
to the user or consumer or to his property is subject to liability for
physical harm thereby cause to the ultimate user or consumer, or to his
property, if…
 The seller is engaged in the business of selling such a product, and…
 It is expected to and does reach the user or consumer without substantial
change in the condition in which it is sold.
ii. The rule stated in Subsection 1 applies although…
 The seller has exercised all possible care in the preparation and sale of
his product, and…
 The user or consumer has not bought the product from or entered into any
contractual relation with the seller.
b. “seller” = manufacturers, wholesalers, and retailers
c. strict liability applies to personal and property damage
d. using article for purpose for which it’s intended to be used is implied
e. mid-1960s through mid-1980s: most states moving to strict liability did it via
adopting §402A
i. Almost every state has some form of strict products liability
 Except for North Carolina
ii. Most adopted principle of strict liability in tort
 But some did more or less same thing but retained language of implied
warranties
II. Law in state of change
a. Restatement (Third) changed products liability section

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 i. precedents based on second Restatement
 But litigants will come in and cite third Restatement
I. Design defects
I. Products function like they’re supposed to
II. Most modern products-liability cases are design-defects cases
III. 2 ways to determine design defect
a. consumer expectation test
i. factors
 Unreasonably dangerous to ordinary consumer with ordinary knowledge
common to community as to its characteristics
 Manufacturer strictly liable for any condition not contemplated by
ultimate consumer that will be unreasonably dangerous
ii. used by Restatement (Second)
iii. disfavored by some courts because it puts foreseeability into strict tort liability
b. risk utility test:
i. balancing test: product’s risks must outweigh its benefits based on factors
ii. Sounds a lot like cost-benefit analysis
 Cost-benefit: talking about actions of defendant
 Risk-utility: talking about state of product
iii. manufacturer has burden of proof that product’s risks don’t outweigh utility
iv. juries receive nonexclusive list of factors to apply
c. some states (CA) plaintiff can choose either
d. Also possible to adopt a hybrid of these two
i. Potter v. Chicago Pneumatic Tool Co. (Supreme Court of Connecticut, 1997)
 Prior to this decision: CT had been using consumer-expectation test
 “feasible alternative design” requirements puts undue burden on plaintiffs
 would have to use expert witness even in cases where lay jurors can
infer design defect from circumstantial evidence
 Product can still be defective even without feasible alternative design
 Shouldn't be on market at all!
 Restatement (Third) requires it, but actually not used by majority of
courts
 Solution: incorporate risk-utility factors into ordinary-consumer-
expectation analysis
 With complex product designs, ordinary consumer might not be able
to form expectations of safety
 In these cases, view consumer expectations in light of factors
balancing utility vs. risks
 Feasible alternative design can be considered as one factor, but doesn’t
have to be proven
 strict liability still in effect!
 Jury focus on product itself, not manufacturer conduct
 Ordinary-consumer-expectation test appropriate when everyday
experience of product’s users allows inference that product didn’t
meet minimum safety expectations

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  Use risk-utility only when facts of case don’t allow inference that
product didn’t meet safety expectations of ordinary consumer
 Can “state of the art” evidence apply to design defect claims?
 Confusion r/e term “state of the art”
 Some courts: industry custom
 Others: compliance with government regulation
 Majority: level of relevant scientific, technological, and safety
knowledge existing and reasonably feasible at time of design
 Courts also divided on whether “state of the art” evidence admissible
in design defect claims
 Some: it’s not
 Focuses on manufacturer’s conduct, which is irrelevant in strict
liability claim
 provides manufacturer with safe harbor
 They should be responsible for doing full research r/e possible
dangers/defects in their own products
 Others: proving state of the art = complete defense
 Most say that it’s relevant
 We’re going with this
 Helps jury determine whether product defective and
unreasonably dangerous
 We define it as level of relevant scientific, technological, and
safety knowledge existing and reasonably feasible at time
of design
 Helps to determine expectations of ordinary consumer
 Can also be factor in risk-utility test
 NOT affirmative defense
J. Defects: Failure to Warn
I. Big area in tort law right now
II. Even if a danger is considered obvious, that obviousness does not substitute for a
warning.
a. Liriano v. Hobart Corp. (US Court of Appeals, Second Circuit; 1999)
i. Plaintiff is 17-year-old immigrant. Has worked at groc store for a week. Meat
grinder is 30 years old; manufactured with safety guard, but it’s missing
and there’s no warning. Plaintiff never told how to use it. Plaintiff uses
grinder, loses right hand and lower forearm. Part that injured him not
visible from outside. Sues manufacturer of grinder claiming violation of
duty to warn; manufacturer sez that groc store modified machine, and even
if that isn’t defense, danger obvious.
ii. Back to Lorenzo v. Wirth
 Majority opinion similar to what Hobart is saying: can assume that people
have ordinary knowledge
 Bright-line
 Dissent: conduct required in complex conditions for standard of due care
is question of fact and thus question for jury
 Defendants must foresee that there are people with less knowledge

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  This is what most people follow now
iii. 2 categories of product warnings:
 How to use a product safely
 Directions, basically
 Let you know risks of product so that you can make informed decision
whether you want to use product
 This is why there should be warning on grinders
 User needs to know r/e third alternative besides use it unsafely or
don’t use it at all
 Users of meat grinders will probably know that it’s dangerous
to use one without a guard
 But numbers of them might not know that guards available
 That using guards is realistic possibility
 And that they can ask for guards to be used
iv. Causation
 When defendant’s negligence deemed wrongful precisely because it has
strong propensity to cause injury that happened, that tendency is
enough to establish prima facie case of cause-in-fact
 The fact of accident under those conditions enough to support
inference of but for causal connection between negligence and that
accident
 Burden shifts to defendant to prove that negligence not a but for
cause
 If nothing shown to break connection, this is prima facie–
sufficient case of negligence contributing to result
 but for cause
 have to have preponderance of evidence that injury wouldn’t have
happened but for this negligence
 but don’t have to rule out absolutely everything else
 in duty-to-warn cases: not necessarily workable
 people will always say that they wouldn’t have gone through with
whatever it was
 so, better to use reasonable-person standard
 objective test
v. In Liriano, did defect exist when product left manufacturer?
 If defect is failure to have guard, then no
 If defect is failure to have warning, then yes
 Calabresi’s attempt to circumvent alteration issue
vi. Post-sale product alteration: whether this constitutes strict liability is based on
foreseeability
 Foreseeable product alteration ≠ defense to products liability
 Unforeseeable product alteration/modification = defense
b. Change in tort law between Lorenzo and Liriano
i. Defendants in better position than plaintiffs to anticipate risks caused by
products
ii. Let juries decide more issues

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  Withdraw fewer cases
iii. Law seeks to protect those with less knowledge, less able to protect
themselves
K. Plaintiff’s conduct
I. Misuse
a. In most jurisdictions, foreseeable misuse ≠ defense
b. Unforeseeable products misuse = defense
i. Not affirmative defense
ii. Negates causation
II. contributory negligence
a. 3 categories of plaintiff conduct that can provide defense for strict liability
i. plaintiff voluntarily and unreasonably encounters known risk
ii. plaintiff unreasonably fails to discover known risk
iii. plaintiff fails to protect hirself (generic stupidity)
b. Restatement (Third): weigh plaintiff’s conduct against manufacturer’s conduct in
comparative-fault analysis
c. The consumer or user is entitled to believe that the product will do the job for
which it was built.
d. Consumer/user must exercise due care.
i. Plaintiff may have departed from standard of reasonably prudent person, but
manufacturer may not have
ii. When defendant claims that plaintiff failed to discover defect, must be
evidence that plaintiff didn’t meet standard of reasonable care
 But generally plaintiff has no reason to expect defect in new product and
little reason to be on guard to discover it
e. West v. Caterpillar Tractor Company, Inc. (Supreme Court of Florida, 1976)
i. woman looking through purse and not paying attention, grader which had
previously passed her backed up over her. contributory negligence didn’t
fit any of set-out categories, court finds that her type of conduct will
preclude recovery.
ii. What are the defects?
 Grader designed that driver had no means of seeing behind hir
 No mirrors
 No beeping sound
iii. contributory negligence is defense when products-liability action based on
negligence
iv. contributory negligence also defense if unreasonable use of product after
discovery of defect and danger
v. decedent contributorily negligent: failed to protect herself
f. Webb v. Navistar International Transportation Group (Vermont Supreme Court,
1996): all forms of plaintiff’s comparative fault reduce defendant’s liability
 No reason to impose cost of plaintiff’s negligence on manufacturer to
distribute among other consumers
 strict liability ≠ absolute liability
14. Intentional torts
A. Battery

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 I. intentional infliction of a harmful bodily contact upon another
II. Test of Battery
a. Unconsented, offensive, or harmful contact
b. With intent to cause such contact or apprehension of such contact
i. purpose (subjective state of mind)
ii. knowledge with substantial certainty
 occupational injuries
 the specificity of substantial certainty makes the difference
 we accept actuarial risks all the time in that we know someone will be
hurt (workers at WTC, Bay Bridge)
 Legislative backlash against employees’ claims of batteries
 Knowledge with substantial certainty is not a reason to circumvent
worker’s comp.
iii. If defendant knew or should have known that his actions could cause harm to
plaintiff, then he is liable for damages, even if intent not malicious.
 Garratt v. Dailey (Supreme Court of Washington, 1955)
 P claims five-year-old deliberately pulled a chair out from underneath
her. Defendant claims that he was going to sit in it and when he
realized that P was about to sit down he tried to put it back. Battery
turns on D’s intent: did he know with substantial certainty that the
bodily contact (plaintiff with ground) would occur (doesn’t require
evil intent, only knowledge that contact is likely to occur)?
 Law as discussed here: applies to adults
 Defendant’s age relevant in determining what he knew
III.Affirmative defenses
a. Self-defense
b. Protection of third party
c. Protection of property
d. Law-enforcement officers
e. Parents to use discipline
B. Self-defense
I. if the circumstances surrounding defendant at the time would lead a reasonable
person to believe he was in danger of losing his life or having great bodily harm
inflicted upon him, then he may use deadly force
a. Objective standard: reasonable person
i. The reasonable perception of potential harm depends not just on plaintiff’s
actions but on entire situation.
 Courvoisier v. Raymond (Supreme Court of Colorado, 1896)
 D asleep in bed when people break into jewelry store below apartment;
riot ensues outside. Cop comes towards D and D shoots, thinking
cop is rioter/burglar.
 If jury believed that defendant justified in shooting one of the rioters,
then important to determine whether defendant thought plaintiff
was rioter
 And if defendant believed plaintiff was rioter, was mistake
excusable?

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  When defendant uses self-defense as justification, must satisfy jury
that…
 he acted honestly in using force
 that fears reasonable under circumstances
 means used were reasonable
b. Amount of force
i. Deadly force is ONLY allowed if you think you are about to lose your life or
have great bodily harm
ii. However, you can use reasonable force when any harm will be put upon you
II. Protection of property
a. you can use reasonable force to defend your property
b. Can use reasonable force to eject someone who initially had permission to be on
property, but whose permission has been lawfully revoked
c. A property owner may not use deadly force to defend property against a
trespasser unless trespasser is committing a felony of violence or endangering
human life.
i. You cannot use force indirectly that you couldn’t use if you were actually
present
 Katko v. Briney (Supreme Court of Iowa, 1971)
 D set up spring gun in abandoned house that was having problems
with break-ins; P broke in and was shot; D couldn’t have shot P if
he had been there… no threat to life or gross bodily harm so he
can’t use deadly force.
 If deadly force is only way to prevent trespass, still can’t use it
ii. Exception: In southern or western states, deadly force is often permissible in
protecting property.
iii. When a notice is posted that the property will be protected with deadly force,
but P proceeds anyway, P will probably not succeed at trial because he
consented
III. Can use force to regain possession of something under following conditions:
a. Person using force must have been in previous possession
b. Property must have been tortiously taken either forcibly or by fraud or without
claim of right
c. Actor must be entitled to immediate possession
d. Recapture must be effected promptly
e. Have to ask for it back first
f. Force can’t be excessive
IV. Repossession
a. Can’t use force to reclaim something under conditional sales contract
b. can take collateral without judicial process, but only if it can be done without
breach of peace
C. Assault
I. Creating apprehension of imminent physical violence caused by D’s action or threat
with an intent to cause the apprehension of harmful or offensive bodily contact or
to cause the harmful or offensive bodily contact

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 a. Accompanied with apparent present ability to give effect to the attempt if not
prevented
b. No bodily contact is actually required, but ordinarily words are not enough unless
threat is one of imminent physical harm
i. Brower v. Ackerley (Washington Court of Appeals, 1997)
 D uses billboards illegally and P reported them; D made threatening phone
calls to P; no assault b/c no threat of imminent physical harm.
ii. When dealing with verbal attacks, infliction of emotional distress is better
cause of action
c. Apprehension is an obj. standard
II. Can use same affirmative defenses as for battery
D. Intentional infliction of emotional distress
I. 3 elements
a. extreme and outrageous conduct (has to be really over the top)
i. This must be in and of itself evidence of level of emotional distress
b. intentional or reckless infliction of emotional distress
c. actual result to P of severe emotional harm
i. Best way to prove: doctor
II. P’s case of intentional infliction of emotional distress can go to jury b/c first two
elements are undisputed
a. Brower v. Ackerley, round two
E. False imprisonment
I. conduct by actor which is intended to and does in fact confine another within
boundaries fixed by the actor; in addition, the victim is either conscious of
confinement or is harmed by it.
a. Confining someone within city: false imprisonment
b. Confining someone within country: not false imprisonment
II. Actual physical force is not required
a. implicit threats: false assertion of lawful authority to confine
b. explicit threats of physical force
III. McCann v. Wal-Mart Stores
IV. P was attempting to leave after shopping, and D detained her and her children
because they believed that P’s children had shoplifted previously. D told P that
the police were being called, and that P had to go with them to wait. P believed
this. D also did not permit P’s son to use the bathroom.
V. Exception: shopkeepers privilege
a. with reasonable basis to believe that someone has shoplifted from store, owner
may stop them until reasonable investigation into incident has occurred
i. has to be based on suspected theft that day

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