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Tort Outline
Brief history of torts

There were 2 writs in historical tort law:

Trespass – Direct tort (intentional)
Case – Indirect (unintentional)

This was a part of English common law. A party would have to file a writ and get the kings approval.
The party would have to choose which writ they wanted to try the case on. If the party applied for
the wrong writ they would not be allowed to apply for another writ the case would be over.

Social Policy Arguments

1) Deterrence or preventative
a. Imposing liability for risky behavior
2) Loss spreading/compensation – Spreading the cost of an accident throughout the entire
business.
a. Enterprise liability – costs of accident should be spread out through the entire
business.
b. Raising costs to cover insurance.
3) Reduce Transaction/administration costs.
a. Rand Agency Investigation
In the asbestos cases they determined that for every $1 spent only $0.37 was
reaching the П. The other $0.63 was being consumed by transaction costs.
4) Fairness
a. Always try and turn this around, if it can be done the argument does not work well
5) Retribution – As punishment for bad actions or behavior
a. Ford Pinto case
6) Information access – Person w/ better or more access to info should be more liable than those
who don’t have access.
Subcategory of deterrence or fairness
i.e. Baseball stadium where to sit statistics.
7) Justice
 Coherence – Understanding outcome of case law
 Consistency – Like cases should be treated alike
 Predictability – People should be able to make judgments based on liability of the risk
taken. (Liability predictable)
8) Judicial administerability
a. Something that the court can be able to enforce

I. Negligence
Prima Facie Case:
 Foreseeability
 Reasonable care
 Causation (Cause-in-fact/proximate cause)
 Damages – Injury to П
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 Note: Holme’s theory on foreseeability – Enough of a chance that you would think of trying to
prevent it.

Cases:
Stone v. Bolton pg. 138
Was it foreseeable that the ball would exit the playing field and hit the П on the head. The appeals
court overturned decision. If an accident is foreseeable then the Δ must take reasonable care to
prevent it.

US v Carroll Towing p 190

The barge case, were the barge owners didn’t have someone on board 24/7. The barge was lost.
Owner sued the Govt. b/c agreement to compensate for lost barges. Govt. appealed for contributory
negligence.
(Hand formula - B<PxL)
Burden < Probability x Loss / severity. If this is the case then there is negligence.
Burden > Probability x Loss Then there is no negligence.

Hammontree v. Jenner pg 148

Epileptic driver has seizure and crashes through Plaintiff’s front window.
It was not foreseeable that he would have another attack because his last seizure had not happened in
so long and he was taking reasonable care by taking his medication.

A. Negligent Infliction of Emotional Distress

Prima Facie Case:
1) Negligently caused emotional distress
2) Without consent
3) Experience emotional distress
4) Behavior must be shocking to the social conscience or general public
i.e. A parent witnesses a traumatic experience occurring to their child due to someone else’s
negligence.

II. Strict Liability

Prima Facie Case:
 No intent needs to be shown.
 Causation (Cause-in-fact/proximate cause)
 Damages – Injury to П
Trespass falls under strict liability
a) Damages are higher if stolen intentionally
b) Damages would be lower if unintentionally

Cases:
Fletcher v. Rylands p. 114
Landowner floods neighbor’s property, when building a reservoir on his land and the water goes
through mines into neighbor’s property. Although Rylands was not negligent the court found that he
was still liable, if harm is caused then strict liability is enforced.
Rule: A person using his land for a dangerous, nonnatural use, is strictly liable for damage to
another’s property resulting from such nonnatural use. Many American courts later rejected this.
During the 1900’s the government wanted to encourage people to expand their land
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Strict Liability
Ultra Hazardous activities
Blasting
Transporting dangerous toxic substances
Dealing with poisonous chemicals
In these cases the strictest utmost care must be taken

III. Intentional Torts

Prima Facie Case:
 Act
 Intent to commit act
 Injury
 Causation

A. Battery
Elements:
1) Touching
2) Intent to touch
3) No consent

Cases:
Vosberg v. Putney p.4
In an action to recover damages for an alleged assault and battery, the victim must show that the
alleged wrongdoer actually committed the act, which injured the victim.

Moore v. Williams pg. 12

The ear case. Doctor operates without consent on the patient. No harm needs to be intended, just the
actual act of touching w/o consent can be found to be battery.

B. Assault
Elements:
1) Apprehension of imminent harm or touch
2) Without consent
3) Intent
 Note: David and Goliath hypo from BarBri

Cases:
I De S and Wife v. W. De S. p.61
*** Hatchet case
Man banging on door of tavern, swung hatchet but did not hit her. Actual touch is not necessary in
order to prove assault.

C. Offensive Battery
Elements:
1) Invasion of person, protection of integrity
2) Intent to commit act
3) No consent by plaintiff

Cases:
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Alcorn v. Mitchell p.65
*** Spitting case
Spitting on someone, any ordinary person would have been offended.

D. Intentional Infliction of Emotional Distress

Elements:
1) Intent
2) No consent
3) Experience emotional distress
4) Behavior must be shocking to the social conscience or general public

 Note: Allows for recovery based on psychological distress. No harm needs to be intended
i.e. When a person calls parent to say child seriously injured when the child is actual find.

E. Transferred Intent (Battery)

If negligent in tortious behavior and a third party is affected as a direct result then it is referred to as
transferred intent.
Elements:
1) Touching
2) Intent to touch
3) No consent

Cases:
Talmage v. Smith pg.9
∆ intended to hit one trespasser w/ a stick hits ∏ with the stick in the eye. Court held that even
thought ∆ intended to hit other trespasser it doesn’t matter. What matters is the intent to inflict harm
is what matters.
A throws rock at B and C is injured, A is still liable.

 Note: Transferred intent may be invoked only where the tort intended and the tort that results are
both within the following list:
Assault, battery, false imprisonment, trespass to land and trespass to chattels.

F. Conversion
Elements:
1) Taking property
2) Intent to do the act
3) Without consent
i.e. Taking property and thinking it is yours, but it is someone else’s’, this not excuse still liable.
(strict liability)
No intent necessary to prove prima facie.

Cases:
Kirby v. Foster p.46
Man takes bosses money which boss owed him. He took only what the boss owed him. Court held
this was still conversion.

G. Trespass (Strict liability)

Elements:
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1) Intent to enter land or property (reason does not matter)
2) Going on the property
3) Without consent
i.e. Person pushed onto the land the pusher is strictly liable for trespass. This is b/c the person
pushed did not intend to go on the land. But the pusher did intend to push onto the land.

H. Intentional Destruction of Property

Elements:
1) Damaged property
2) Intent
3) No consent

IV. Defenses
1) General – Defendant knocks out one of the elements in prima facie
2) Affirmative – (yes, I did it but…)
i) Self defense
ii) Necessity
iii) Privilege
iv) Status
v) Defense of property
vi) provocations

V. Standard of Care
The amount of preventative measures a person should take.

Cases:
Lucy Webb Hayes National Training School v. Perotti (Packet Case)
The hospital did not meet their own standard of care.

VI. Custom
The widely held practices in a given field that determines reasonable care. If there are no customs
then experts will argue as to what should have been done. (Expert testimony)
Can be used as:
1. Shield - by defendants (binding)
2. Sword - by plaintiff (admissible but not binding)

Cases:
Titus v. Bradford (Shield case) pg. 201
Big train on small track.

Lama v. Borras (Sword case) p.211

Back surgery case (herniated disc) hospital did not use customary care

Note: Statutes and regulations – helps to establish or define reasonable care.

Example: State speed limit

Cases:
Mayhew v. Sullivan Mining Co. p.204
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1884
Unmarked hole in dark mining shaft.
Court ruled if the risk is created by industry and wholly understood by laypeople, then custom cannot
be used as a shield against liability.

TJ Hooper p.205
1932 – Radio transmitter on the boat. Not a custom case.
L. Hands obiter dictum changed the rule of custom is binding to custom is admissible.
 Note: Custom is still binding in medical malpractice.

A. Locality Rule
Look at the locality that the tort occurred in and look at similar localities as well.
Cases:
Brune v. Belinkoff Pg. 221
New Bedford pregnant women case.
On appeal locality rule was thrown out and a national standard was implemented.

B. Malpractice
Only in the medical practice is custom still binding
Lama v. Borras p. 211 1994
The plaintiff would need to show the doctor, did not use the proper procedure within their own school
of medical practice. Since custom is binding, the plaintiff would have to find expert testimony from a
doctor that uses that school of medicine. The judge determines what practice is actually a school of
medicine, and if it is an accepted practice.

Why still binding - Policy arguments

1. We would like doctors to maintain some level of custom, but in order to promote innovation we
hold it only as admissible. (Info Access, since doctors have the better information they are limited
from going beneath the standard, but can go above.)

2. To limit jury from finding for П because they feel bad for them.(Fairness)

 Note: Does not put the weight on whether a procedure is a custom, when it should be what is the
best medical or reasonable care. Treatment is changing so rapidly, courts must now
determine when something has become a custom or is no longer a custom.

1. Reasonable care in medical Malpractice

Cases:
Helling v. Carey pg. 223 **Note case
The court balanced the cost of doing the glaucoma test vs. the cost of going blind. The test was so
cheap that the court decided that it was negligent not doing it.

2. Disclosure
Cases:
Canterbury v. Spence pg.226
People should have the right to determine what risks they are willing to take, allow people to control
their own bodies.

VII. Negligence per se (Statues, Regulation and Ordinance)

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A. Negligence Per Se
Prima Facie of negligence per se:
1) Safety statute exists
2) Δ’s act violates the statue
3) Injury occurred was the type that the statue meant to protect.
4) Injured must be a member of the class of people that the statute meant to protect
5) Act was a proximate cause of the injury

Cases:
Osbourne v. McMasters pg. 245
Poison without label.
Rule: The breach of a statutory duty to a member of the protected class is negligence per se.

Stimpson v. Wellington Service corp. pg 247

Heavy trucks should not be allowed to drive on streets in order to protect the streets from the weight
of the trucks.
There was a secondary purpose to protect the pipes under the streets and the adjacent homes. As an
attorney, we can look at the general safety purpose and find the subsidiary purpose that may be
covered.

Tedla vs. Ellman pg. 251

The peddlers violated the statue by walking against traffic, but the driver was driving too fast and
swerved hitting them.
Court held implied exception – When the traffic going with you is heavy then you should walk facing
them, so that you can see the oncoming cars. This was not in the statute. The court reached to get this
decision so that they would not hurt the innocent party injured.

Today, we have comparative fault – This is where the jury determines who was most at fault and
then decides damages based on who was more negligent. Even though the peddlers were negligent
per se.

Note: Courts can also find subsidiary victims as well. (If a third party is harmed by a party who
violates a statutory regulation.)

Ross v. Hartman pg 257

Truck driver leaves his keys in truck, truck is stolen and an innocent party is injured.

B. Dram Shop Statute – Specific to liquor cases

Cases:
Veseley v. Sager pg. 261
Plaintiff injured when a drunk driver crashes, he instates an action against the bar owner and
bartender. In order to limit the amount of alcohol that people are served, the legislature supports that
bar owners and inn-keepers can be held liable for the actions of someone who they served too much
alcohol to. This is statutory negligence in its extreme form. (Very close to strict liability, unless they
do not serve enough to put the person over the limit of drunkenness.) A number of courts have
extended this to affairs run by a business or school.

VIII. CAUSATION
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Cause in Fact and Proximate Cause
Contrary-to-fact Speculation (What would have happened if the ∆ had behaved properly?)
2 Questions:
1) What did ∏ have after ∆ tortuous behavior?
2) What would ∏ have had if ∆ had behaved in a non-tortious way (properly)?

Cases:
New York Central R.R. v. Grimstad Pg. 435
Life preserver case
Negligence due to breaking of the statutory rule that they must provide life preservers on the barge
Case analysis:
Need to establish evidence of the time sequence, the prospect that he could be saved, how long does
it take to unhook the life preserver? This makes it a case that the Plaintiff’s attorney must prove one
based on time. There were too many uncertainties

 Note: Standard –Plaintiffs’ attorney must prove that it is more likely then not to have been the
cause of the accident or injury.

Kirincich pg. 436 **note case

The П attorney eliminated a lot of the uncertainty, thereby allowing the jury to see that he would have
had a reasonable chance had the Δ provided an adequate rope to be thrown to the П.
On the other hand the Δ tries to increase the amount of uncertainty in order to weaken the П
arguments regarding causation. Detail by detail to narrow down the uncertainty, so that at the end you
are left with as little uncertainty as possible.

IX. Scientific Evidence

A. Fry doctrine
Fry v. U.S. pg .450 For scientific evidence to be admissible, there must be a general acceptance in
that specific scientific field (or methodology). No longer used.
Because, hard to use doctrine since there are so many theories and none maybe widely accepted.
Fry test could not deal with the toxic tort cases.
The Supreme Court was ruling cases using the federal code of evidence.

B. Daubert doctrine pg 446

The judge should be the gate-keeper. Letting in evidence that meet the standard and keeping out those
that do not. He judges the right and responsibility to give sweeping opinion on the adequateness of
scientific evidence. This is done on a case by case basis. Mini trials are held on the
Reliability/Relevance of the evidence.

The defendants tortious behavior must have caused the injury the defendant is liable.

Cases:
Zuchowics v. United States pg. 438
The PPH overdose case. Without expert witness stating symptoms began after the overdose the П
would not have won. The overdose of the medication and not the act of taking medication has to be
proven to have been the tortuous behavior of Δ.
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 Note: When Δ creates the uncertainty, then the burden of proof shifts to the Δ to proof he was not
the proximate cause.

Cases:
Haft v. Lone Palm Hotel – pg. 437 **note case
Lifeguard v. posted sign.
Legislature gave alternatives – the court felt that the hotel would have preferred the sign and not the
lifeguard.
-Defendant created the uncertainty
-Uncertainty was foreseeable
-They should eliminate uncertainty

Herskovitz pg. 453:

He lost 14% of his chance for survival. The old doctrine was if you could not get up to 51% or you
get nothing. The law is evolving because of the perception of fairness. Even though his chances were
less than 50% the courts found that Δ reduced chances by 39%.

X. Expert Testimony
Expert testimony needed when the topic is one in which lay people would not understand. Rarely
ever inadmissible and the testimony binds the jury. When two conflicting experts jury left to decide
which to accept but the jury has to accept one or the other. Jury can’t combine or through them both
out.
 Note: Each behavior in question must be looked at separately. Look at the actions that was taken
and separate them from the facts. (i.e. Quintal)

Cases:
Quintal v. Laurel Grove Hospital (packet case)
Boy with fever.
3 issues of behavior that should be analyzed in order to determine negligence
1) Decision to operate
 Apprehension
 Temperature
 Pre-op medication
 Elective surgery
2) Conduct of operation
 Should ophthalmologist do thoracic surgery
 Tried for one minute to do external
 They went to find a thoracic surgeon
3) Failure to have an emergency plan
 Doctors stood in the operating room deciding on what to do

XI. Joint and Several Liability

Joint – Both liable
Several – Liable for total damages
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i.e. In an auto accident ambulance takes you and before getting to the hospital the ambulance gets
into an accident both negligent parties are responsible.

Switching the burden of proof. If П proves liability the burden of proof then switches to the Δ’s as to
which caused the injury.

Cases:
Kingston v. Chicago pg 461
2 negligent fires burn down house, one defendant can be liable for all of it.
If the П has suffered a loss as a result of tortious behavior, then the negligent Δ should be held liable.
Key element: All possible causes of fire was tortious, there were none that were non-tortious under
the rule the П can collect from anyone of the Δ. П must rule out all non-tortious acts, because if even
one were non-tortious then the result would have been the same and they could not collect from
anyone.

Summers v. Tice pg. 468

2 Δ’s shoot at the П and one bullet hits.
1) The party named all possible causes and all were tortous
2) No other way to reduce the causes
3) Their actions created the uncertainty ( can or cannot be reasonably foreseeable)

Shifts the burden of proof

Cases:
Sindell v. Abbott pg. 476
DES case Market Share,was tried in California. – All parties were tortous, but not all parties were
named in the suit. The court ruled that as long as it was a substantial amount of actor named that it
was okay.

XII. Causation
(we discussed previously)
1) Don’t say that the defendant is negligence, (Don’t use) but for...
2) We must say his tortous behavior was a substantial factor in bringing the accident about.
(Latinism)

For every tort it is up to the plaintiff to show that the Δ’s tortious behavior played a substantial role in
bringing about the П’s loss. This is a normal element in a PRIMA FACIE. The burden of proof can
be switched on certain elements. i.e. Summer v. Tice Courts have been willing to switch all or parts
on the causation issue.

Causation – cause in fact (but for test…)

1) Injury occurred through tortious behavior and we have a great majority or enough of the
tortious offenders.

A. Res Ipsa Loquitur (race-ipsa-lock-quit er) The thing speaks for itself
A type of accident that does not ordinarily occur without negligence from the specific class.
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Group/Class Particular instance

General Specific

Type of defendant or group (not individual) of defendant. Applying it to a particular instance.

Focus on the class of accident. When barrels fall out of a window. Meet the initial Prima Facia due to
negligence. Res Ipsa Loquitur – refers to a group or class not a specific case.

Restatement 2nd and 3rd. pg 284

3 requirements
1) The accident must be kind of accident that normally does not occur without negligence.
2) The injury-causing instrumentality must have been in the exclusive control of this type of
defendant.
3) It must not be due to any voluntary action on the part of the plaintiff (contributory negligence)

Cases:
Byrne v. Boadle pg 281
Barrel out warehouse window.
Requirements were met.

Colmenares Vivas v. Sun Alliance pg 288

Escalator case.
Met requirements

Wakelin v. London pg. 283

Man hits train
Contributory negligence
П could have walked into train.

Larson v. St. Francis pg. 286

Chair out the window
Chair not in control of the hotel, the hotel guests control it.

Connolly v. Nicollett Hotel pg. 286

Unruly hotel guests. Hotel could foresee that situation was out of control not res ipsa loquitur because
it is very specific. Normal negligence. ( Latin say’s this is not a good example of Res Ipsa Loquitur
because it focuses on the particulars and not the class)

Core
Doctrine

Gray areas are outside the core. Can the core doctrine cover them as well?
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Core doctrine – Can we expand the boundaries where the law does not cover, to the law outside the
core doctrine? Every doctrine has a core where it fits just right. Once the issue gets shady, how do we
argue and have the boundaries expanded.

Cases:
Ybarro v. Spangard pg. 297
This stretches the doctrine of Res Ipsa Loquitor
In this case it is unclear that the accident was caused by the hospital or the doctor, so there is more
than one defendant. Uncertainty created by medical relationship.

Powerful, broadly used doctrine when there are several possible defendants and there is a need to find
out the causes. This does not only apply to negligence. It can be applied to product liability as well.
It should be treated as meeting the Plaintiffs burden of proof. But, if we are talking of extending the
doctrine it shifts. It actual does not matter too much either way you look at it.

B. Proximate Causation
The doctrine of proximate causation does not deal with how the accident came about. That is cause in
fact. Proximate causation deals with how much responsibility of damages a tortous party should be
liable for.

Plaintiff Δ tortuous act П injury

To determine what is in the boundary line there are two doctrines:

1) Remoteness/directness: Remoteness varying accidental circumstances, which Δ has no control
over. That are contributory factors causing the injury. Directness: The natural and reasonable
results of the Δ act.
2) Foreseeable/unforeseeable

Judge Andrews: Factors in drawing boundaries between directness and remoteness

 Closeness in time
 Closeness in space
 Factors outside of defendants control (i.e. weather)
 Badness of the risk
No one factor is the decisive factor.

Cases:
Ryan v. New York Central R.R. pg. 480
Train engine sets fire that spreads
Here the court goes back and forth between doctrines. The court finally focused on the remoteness
doctrine. They discussed the distance, wind and heat as some factors that may have added to the
results. The court used forseeability to help show the remoteness.
This decision has a significant boundary consideration. The court is making a policy

Berry v. Sugar Notch Borough pg. 484

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In this case they used the directness doctrine. The speeding of the car had no direct relationship to the
branch that fell on the car. It was purely coincidental to the accident. Nothing about the speeding led
to the risk.

In re Polemis pg.497
Plank dropped causes fire
Ruled that it was a foreseeable risk of harm, they failed to take reasonable care and was held liable
for all damages resulting.

 Note: That the plaintiff would favor direct/remote test. Does not need to show foreseeability just
correlation between act and injury. Δ would prefer a forseeability/unforeseeability test b/c
the injury here needs to be foreseeable.

Landmark case:
Palsgraf v. Long Island RR pg 501
Women on platform gets hit in head from an explosion a distance away.
Courts used foreseeability test to determine that it was unforeseeable therefore they were not liable.
Cardozo – Believes that the magnitude of injury does not have to be foreseeable. He felt that the lines
of liability had expanded too much.

C. Intervening Cause
A non-natural negligent act by a third party.
The black letter law in all jurisdictions on the intervening cause is foreseeability.
Test to determine if there is liability:
1) Fairness
2) Badness of intervening act
3) Foreseebility

Hypo – If 3rd party intentionally drops match on gas. The Δ liability is cut off, b/c intervening act
isn’t foreseeably by the Δ. If match dropped accidentally, Δ liable b/c act was foreseeable.

Cases:
Union Pump v.Allbritton pg.527
Woman walks on top of pipe and is injured. Injury not caused by fire b/c fire had subsided by then.
Not intervening cause.

Proximate Cause
Wagon Mound Case #1 p.517
Careless oil spill leads to fire that burns down the dock
The court uses foreseeability in this case. (it was unforeseeable)
Court holds for the Δ.

Wagon Mound Case #2 p.523

Π’s ship was destroyed during the fire. Engineer should have known.
(forseeability was used)

Standard for finding foreseeability in proximate cause

1) Sequence of events must have been foreseeable (most restrictive)
2) The actual consequences must have been foreseeable (Cardozo and Palsgraf)
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3) The consequences of the same type and comparable magnitude must have been foreseeable
4) Consequences of a different type and comparable magnitude must have been foreseeable
5) Consequences of a different type different magnitude, must have been foreseeable
6) Any harmful consequences to anyone must have been foreseeable (least restrictive) also
(close to Kinsman)

Cases:
Kinsman transit company pg 525
Boat blocks dam and causes massive flooding down river.

XIII. Duty
Factors of duty
 Forseeability of harm to П
 Degree of certainty
 Closeness of connection between the Δ conduct and injury suffered (makes subjective)
 Burden to exercise reasonable care

Cases:
Rowland v. Christian pg 91
The duty of property owners. Three categories:
1) Trespassers – no duty
2) Social invitee –Duty to Disclosure (watch your head)
3) Commercial invitee(PSE&G) – full duty of reasonable care

XIV. Contributory Negligence

Prima facie case:
 Δ has to show that Π created reasonable foreseeable risk to himself.
 Π failed to take reasonable care
 Π failure to take reasonable care was a cause in fact and proximate cause of the injury
 Note: CN barred recovery for Π now we use comparative

Cases:
Butterfield v. Forrester pg.308
Man and horse falls over pole because he did not notice the pole in the street.
Contributory negligence upheld Π caused his own accident. Recovery was barred.

Gyerman v. US Lines. Pg 313

Sacks were stacked the wrong way and the Π was injured while unloading.
This case shows that the Δ must prove that the Π actions were a substantial contributing cause of the
injury. Although the Π actions were cause in fact it was not a proximate cause of the injury.

Doctrines to mitigate contributory negligence:

1) Statutory rule: The injured person is so dependent that the law must protect them.
2) Gross negligence: Δ behavior was so bad compared to the Π the court should not reward the Δ
be allowing him to get off.
a. Prevents the Δ from raising contributory negligent claim.
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3) Last clear chance, Δ could or should know that they could prevent but does not, this is now
abolished since comparative negligence.

Cases:
Fuller v. Illinois Central Railroad p.331
Last Clear Chance
Old man on horse with wagon is hit by train. This is an example of last clear chance.
The party who has a clear opportunity of avoiding the accident is solely responsible.

XV. Assumption of risk

Knew of risk and voluntarily exposed themselves to it.
1 An explicit contractual agreement to allocate a particular risk to one of the parties in case
an accident occurs then they are not liable.
2 Primary assumption no “duty” No explicit contractual agreement. The court decides that
one party should not be responsible for protecting the other party. If risk is a normal part
of the activity, and they choose to engage.
i.e. sports
3 Secondary assumption “comparative negligence” The Δ has a duty to protect the Π he is
negligent in failing to meet the duty. Then the Π recognizes the risk and exposes himself
to it anyway. Not a bar, but an apportionment.

Cases:
Lamson v. American Axe pg. 341
No recovery because the Π assumed risk. This was the old rule. No recovery by the Plaintiff. Court
held that Π had actual knowledge of the risk and voluntarily exposed himself. (This is no longer
done.)

 Note: This led to workers compensation. The employee gets a recovery from the pool if he is
injured in a work-related capacity. П can’t sue the employer so they sue others.
If an employee injures a third party then the employee is liable.
If an employee injures another employee, the injured employee can’t sue the employer, they
must sue the other employee. (Fellow Servant Rule)

Note: If there is no duty then there is no negligence.

Meistrich v. Casino(p 350)

Ice skating rink had duty (responsibility) to keep ice smooth, П exposed herself to the uneven ice,
although she knew it was not safe. Court decided to treat as secondary assumption of risk or
comparative negligence.

Murphy v. Steeplechase Amusement Co. p. 346

(No duty, the machine was functioning normally) Man is shaken on amusement park ride.

XVI. Comparative Negligence

2 types of comparative negligence:
1) Pure – The full proportionate of the entire spectrum.
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i.e. The П may be overwhelmingly wrong, but they can get millions if there is 10%. Of the total is
$10 million.
***Adopted through common law (Li v. Yellow Cab)

2) Impure 50% or 51% rule – The Δ must be at least 51% or 50% negligent in order for the Π to
recover. Δ must show that the П was more responsible than all the Δ. П must show that he was less
than 51% responsible in order to recover. Some states use 50% others 51%.
*** Adopted through statute.

This can be harsh if the П is 46 % negligent, then the Π gets off paying nothing. This keeps the
harshness and unfairness of the old “all or nothing” contributory negligence.

Landmark case:
Li v. Yellow Cab Co of California (1975) pg. 362
Negligent Π was hit by a car that ran a yellow light. Both parties were negligent.
This case officially ushered in the comparative negligence doctrine.

Policy Argument
This case simplified the doctrine, juries were already doing apportionment, but in an inconsistent
way. There was also a fairness issue of apportionment figures juries and judges were implementing.
The pros outweighed the cons. The courts preferred that the all or nothing go away. Once California
did this it spread throughout. 1980 at least 48 out of 50 states had adopted the comparative negligence
case.

XVII. Joint and several Liability

Joint Tortfeasors – The П can sue one Δ for the entire amount, since they are both negligent for the
total amount. The Δ can then sue the other tortiuous parties. One Δ can be stuck with all damages
with no recourse to collect from the other Δ under traditional law.

Ways for the Δ to mitigate their damages:

1) Indemnification: If one party can show a substantial imbalance of coupability between
them and other Δ, then the courts would transfer the liability.
2) Contribution: Δ can then sue the other Δ for a contribution, including a Δ that was not a
party in Π’s case. Now the law is leaning towards contribution instead of total liability
under this the П can recover from any Δ. tortfeasors share equal liability
3) Apportionment: Pay according to amount of wrong done ie. 20% / 80% But, if one Δ is
judgment proof, this does not limit Π recovery because joint and several liability, still
applies and the П can recover everything from one Δ.

 Note: Comparative apportionment is the majority in most jurisdictions.

Cases:
Summers v. Tice pg. 395
Example of traditional

Dole v. Dow pg 399

Dole (employee) sues Dow (manufacturer), Dow then sues Urban the (employer). (Dole) collected
100% from manufacturer (Dow) and manufacturer sued the employer (Urban) for 50%. The court
allowed this because they viewed as a separate action from a non-employee. Dole was able to
recover.(Latinism: Not good because it undermines workers compensation)
 17

XVIII. Intra-family immunity

One family member is barred from suing another family member.
Hypo – Negligent driver hits child, child sues driver now driver cannot sue parents for negligent
supervision, because it defeats the purpose since child’s money is part of the family money.

XIX. Vicarious Liability

A. Respondiat Superior
Employers are responsible for negligent act of employee.
1. As long as the act is growing out of employee, employer relationship. Because employers
usually have insurance and deep pockets, whereas employee is usually broke.

XX. Product Liability

Prima facie element
Product was defective
∏ must show that the product was being used in an intended or foreseeable manner.
∏ was injured as a result of the defect

3 Types of product defects:

1. Manufacturer defect
2. Design defect
3. Warning defect

A. Contracts
1. Express warranties: When a manufacturer makes a specific claim that a product or some
attributes of a product is safe. Expressed representation of safety.

 The manufacturer should be held to the explicit representation.

 Courts have to draw the line between puffery and explicit representation.
o In some jurisdictions consumer must have read and relied on the express warranty.

2. Implied warranties: In the 1940’s the courts started using implied warranties. Implied
habitability(landlord/tenant). If nothing is said regarding a warranty or an explicit statement to the
contrary, an implied warranty is present. Many manufacturers now include disclaimers to protect
themselves against the implied warranty.

Fitness – The product must safely be used for what the product was intended to do or to be
used for. (The iron must iron, the knife must cut.)

Safety – merchantability/safety, good enough condition to be sold

A: Reasonable safe, same as negligence but no foreseeability required.

Cases:
Henningsen v. Bloomfield p.739
 18
Landmark case in New Jersey Supreme Court implied warranty of habitability and fitness meaning
that the product must be reasonably safe and making it disclaimer proof. Now the manufacturer is
liable to buyer, and dealership or an expected user.

How most accident come about:

 Rational risk calculating
a) People make choice of risk that they will undergo.
b) They make gambles and some times they lose
 Mistaken momentary Inattention Model:
a) True accident.
b) They do a variety of things that keep them from using the product properly.
c) Latinism: Retribution, people should pay for their bad decisions, broad liability all of
society pays for bad decision. Safe people, pay more in order to make product safer for riskier
people.

3. Privity of contract
Should control of dangerousness of product be determined by agreements between parties v.
society/legislature.

K Torts

Privity Negligent PL (product liability)

Res Isp Loquitor- If it went wrong it was negligence.

When a product malfunctions it is more likely than not the manufacture fault.

A powerful force for limiting the scope of potential liability. The only party that they are liable to are
those who they have the contract with, since they bargained for it. (This was to promote business and
entrepreneurial ventures)

Privity is dead for consumer contracts

But still enforced for commercial contracts

Cases:
Winterbottom v. Wright pg 719
Postmaster General Coach operator Coach driver

Coach driver tries to sue manufacture, can’t sue employer or the Post Master General.
The manufacturerManufacturer
has no liability due to privity of contract.

The government cannot be sued unless it allows it. It is rationalized because people should not be
allowed to sue the government since its money comes from the people.
There is an agreement that the coach would be in good condition and the P is arguing that it was not
in good condition and did not live up to the standards agreed upon.

McPherson v. Buick Motor Co.

 19
Wheel spoke crumbles, Δ did not manufacture product, but failed to inspect.

Judge J. Cardozo from New York – Pg 722

** Landmark decision pivity is abandoned in cases of physical injuries due to defective products.

Negligence Products Liability (3rd restatement standard)

Time of
Market Trial
Risks X
Benefits X
Alternatives X
Consumer avoidance X
Consumer expectation X
Loss Spreading

Strict liability (Restatement 2nd.)

Time of
Market Trial
Risks X
Benefits X
Alternatives X
Consumer avoidance X
Consumer expectation X
Loss Spreading

Fundamental difference between full negligence and strict liability – As of what time you consider
different properties, when the manufacturer puts the product in the stream of commerce or at trial.

B. Negligent Product Liability

Prima Facie elements:
User must be other then buyer
Without further inspection
Puts life in peril

This is stricter than regular negligence, because the manufacturer’s product must be used by someone
other than the buyer, without further inspection and it must put life in peril. Harm has to be
foreseeable to the manufacturer. It is a regular negligence test with the added elements.
** Does not apply to buyer because he can negotiate the risk.

The expansion of product liability

Product liability, was later expanded by dropping the restrictions that Cardozo had implemented. For
example the inspection regulation was thrown out and peril to life and limb was also thrown out. The
buyer was also now protected from any danger were you need to use reasonable care. In this era
contributory negligence barred recovery, this is pre-comparative negligence. Prima Facie case –
would now be easier to prove.
 20

Cases:
Escola v. Coca Cola Bottling Co. of Fresno pg. 729
Waitress has bottle explode in her face. The courts found for the plaintiff
In this case the doctrine from Mcpherson was used again. This time, judge Gibson res ips loquitor is
used forcing the manufacturer to find out why the accident actually occurred.

Pouncey v. Ford Motor Co. pg 769

Car fan blade breaks off and injures Π.
This was prior to strict liability, so reasonable care or quality control was an issue. Today,
construction defects are analyzed under 402A it is irrelevant as to reasonable care.

The retailer is also liable. If we make both retail and manufacturer liable then someone will pay, and
Plaintiff does not have to track down manufacturer. The retail can go after the manufacturer
themselves. If the manufacturer can clear his name, then the retailer can possible be liable as well.
(The risk between the manufacturer and retailer will be allocated in commercial and contract law, but
the consumer can sue anyone in the chain of selling the product)

C. Strict Products Liability

Not really strict in laypeople’s terms “tricks” since the Plaintiff must show a product defect. In
Treynor’s opinion, he feels that the injury is all that should be needed, but in the law as it has evolved
the court must decide whether the product is defective.

Judge Treynor’s holdings (Concurs, but for policy reasons)

1) The only thing that the Plaintiff would have to show is that the injury was caused by the
product itself. It means product caused the injury therefore the manufacturer is liable
(Absolute liability. Many courts have gone to strict liability, but Π must still show defect.
Under Treynor analysis no defect, just injury.)

2) Judge Treynor argued that the manufacturer is in the best place to prevent accidents. He
thought that it was in the interest of public policy to prevent such accidents.

 Loss spreading – Manufacturer in the best position to spread the cost to everyone.
 Deterrence of preventive – Manufacture can better anticipate and prevent the product
related accident.
 Fairness- People rely on manufacturer( ie. advertisements, consideration of fairness)
 Administerability – Minimize the number of suits (administrative costs)
 Information Access – Manufacturer knows better what caused the accident.

 Note: Traynor’s doctrine is called absolute liability. If the product caused the injury then the
manufacturer is liable. All that is needed is causation. THIS DOCTRINE HAS NEVER BEEN
USED OR ADOPTED ANYWHERE OR AT ANYTIME EVER!!

D. Restatement 2nd Section § 402A: Special liability of seller of product for physical harm to
user or consumer pg.743
(1) 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
caused to the ultimate user or consumer, or to his property, if
 21
(a) The seller is engaged in the business of selling such a product, and
(b) It is expected to and does reach the user or consumer without substantial
change in the condition in which it was sold.
(2) The rule stated in Subsection (1) applies all possible care although
(a) The seller has exercised in the preparation and sale of his product and
(Eliminates quality control argument)
(b) The user or consumer has not bought the product from or entered into any
contractual relation with the seller.(Eliminates privity)

Some courts rejected the restatements. It is the bedrock of strict product’s liability. California and
New Jersey both rejected. Jursisdictions that follow 402 A

1. Refers to commercial sellers (including car rental companies)

2. dcud is the heart of the section. defective condition unreasonable dangerous
3. Manufactures could be liable no matter how much care is used
4. Eliminates privity

Defective Condition Unreasonably Dangerous (DCUD)

2 elements of 402 (Some courts look for one of the requirement but some want to see both of them.
And/or)
1. Riskier than expected – defective condition (consumer expectation)
2. Does the risk of the product outweigh its benefits (unreasonable dangerous) (RUB)

Element 1
Consumer expectation test
Drafters of 402 A were trying to contract the expansion by saying that products with inherent risks
were no riskier than people expected them to be therefore the manufacturer cannot be liable

Element 2
Unreasonable dangerous (like RUB)– defective condition and reasonable dangerous (if the prima
facie case is met then this is already met) Risk outweighs its benefits.

*** Some jurisdictions have adopted and continued to use restatement 2nd. Which is the standard
unreasonable dangerous. It does not differentiate between the three types of defects.

E. Manufacturer Defects
No reasonability this is the strictest branch. The strictest type of strict liability is construction or
manufacturing defect this is where a particular unit deviates from what the manufacturer intended.
This is relatively strict liability, negligence does not matter, no reasonableness balance, no measure of
cost vs. benefits.

Prima Facie elements

Product had a deviation from the manufacturers products design (Cepeda case)
The deviation was in the product when it left the manufacturer (hardest to prove)
The deviation had to have caused the injury(proximate cause)

Restatement 3rd Products Liability

(a) Contains a manufacturing defect when the product departs from its intended design even
though all possible care was exercised in the preparation and marketing of the product.
 22
Example of standards test:
Lucy Web case Hospital was held up to its own standards. As would the manufacturers in these cases.
Due to strict products liability it does not matter how much care is taken under this circumstance. The
individual unit, which caused the accident, did not conform to the manufacturers standard. It is liable
regardless to how much care was used.

If we can’t find out what the defect was or the product had been destroyed. We can use Res Ispa
Loquitur – The fact that it exploded proves negligence or that the accident occurred. The Π can reach
the jury without identifying the specific defect.

Cases:
Moore v. Jewel Tea Company pg.772
Drano case, manufacturer and design defect case. Encasing of Drano was not made properly in order
to avoid explosion. The fact that product stored for a time before the injury occurred is irrelevant. ∏
won on mfg and design b/c better design would have prevented.

F. Design defect
Harder to prove then manufacturer defect. Because in design defect we must prove that there is a
better design.

Restatement 3rd Products Liability

(b) is defective in design when the foreseeable risks of harm posed by the product could have
been reduced or avoided by the adoption of a reasonable alternative design by the seller or
other distributor, or predecessor in the commercial chain of distribution, and the omission of the
alternative design renders the product not reasonably safe;

You can’t have a design defect case without arguing that there is a safer design. This was an attempt
to eliminate RUB. New Jersey uses the §3rd Restatement. Consumer expectation can balance this i.e.
Porsche that went too fast, but that is what the consumer expected...

1. In design it is really not strict it is more like negligence.

2. Most jurisdictions don’t look at the risks and benefits of the product when it was put out, but
at the time of trial (the consequences of putting “that” product on the market).
3. Must show at the trial, that the harmful risks, out way the benefits, not when the product was
marketed, but at the trial.
4. When the harm outweighs the benefit whether or not foreseen, then the manufacturers should
bear the costs of that harm. Not looking at the foreseeability issue.

Whether the product that was made is comparable to the product that should have been made.

The difference between negligence and design defect are very small. In Negligence era/Cardozo and
strict liability a Π could not recover unless the product was being used as intended.

2 major themes in deciding design defect:

1. Consumer expectations
a. Used as a shield by Δ Linegar v. Armour of America case pg 782. No more dangerous
then consumers expected it to be therefore it is not defective or unreasonably
dangerous
b. Used as sword by Π , riskier then people expected (Barker case)
 23
c. Just Relevant : Looked at in light of other factors in the RUB test.
2. Risk Utility Balancing (RUB): Risk out weighs its utilities and benefits.
There are a number of factors associated with this test. Everything is considered.

3 different approaches:
1. “And” jurisdiction
Commonly used
Linegar case
follow the 2nd restatement
2. “Or” jurisdiction
Least used
Barker case
3. Unitary rub (Risk utility balancing)
Most used
Wade test - consumer expectations is only one factor to be taken into account

Proving both 1&2 makes it hard for courts to hold ∆ liable, because the dangerous product may be
very useful. By just using the RUB test, some widely used products would be found defective
because risk out weighs benefits. i.e. tobacco, alcohol.
Wade’s Risk Utility Balancing test (The RUB) pg 796

1. Utility of the product – Usefulness and desirability of the product

2. Risks: The person may not be able to control the car
3. Alternatives and costs – Substitute products, that do the same thing
4. Alternatives and costs – Substitute cost of creating a safer product
5. Ability of user to minimize the risks (ie drive slower)
6. Consumer expectations
7. Ability for manufacturer to spread losses.

We look at how it affects all of society, the risk of all of these types of products. We would get
information from experts and statistics from consumer monitoring organizations. Compare risk that
would be reduced by the better design v. the cost to implement them.
How many risks will be removed at what costs?

 Note: 99.9% of all design defect cases, the ∏ (shows alternate design that they feel would have
been better then current design) they never try to show what the overall harm of the product and
the D does not show overall benefits. They compare the benefits and utilities of product the way
it was made by the benefits and cost of the products if it was made in a alternative way.

Cases:
Volkswagon of America, Inc. v. Young pg. 774
Crash worthiness case. The car was not built with the intention of being crashed (intended purpose or
use threshold limitation.) The defect did not produce accident, but once accident occurred it made it
worst. Expanded the use of intended use to common foreseeable use.

Barker v. Lull Engineering Co. pg 788

High loader machine made to be used on level ground was used on uneven surface.
They changed the threshold to include foreseeable misuse, since the Δ should consider ways that the
product may be mishandled.
New Jersey and California changed the rules and used foreseeable misuse.
 24

Cepeda v. Cumberlans Engineering Co., inc. Pg 1 handout 4

The courts were not interested in an alternative product. The D used consumer expectation as a
shield. The product did what was expected of it to do. They used the Wade factors and now its known
as the Cepeda factors.

Hindsight test – Looking at the time of trial and looking back at what happened.
Imputing knowledge – assuming that the Defendant (seller) knew of the dangerous (Risks)
condition. Would he have put the product out in the same way?

G. Warnings
Restatement 3rd Products Liability
2( c) is defective because of inadequate instructions or warnings when the foreseeable risks of
harm posed by the product could have been reduced or avoided by the provision of
reasonable instructions or warning by the seller or other distributor, or a predecessor in the
commercial chain of distribution, and the omission of the instructions or warnings renders
the product not reasonably safe.

 Note: Reasonable means comprehensible to average user giving a fair indication of nature and
extent of danger to reasonably prudent person (RPP)

3 types of warning defects

1. No warning – easiest not common
2. Warning should have said “this or that” Π argues alternative warning
3. State of the art. Better warning could not have been given because risk could not have been
known or knowable.

Prima Facie elements:

1) The Π was injured using the product (in all products liability cases).
2) Used in a reasonable foreseeable use or misuse (in all products liability cases).
3) The warning was defective. The instructions did not give an adequate warning of product risk
or handling of the product. (general: for foreseeable users).
4) Causation: would a better warning have made a difference to this Π.

Restatement 3rd – Pro industry

 Advocates retaining the state of the art defense
 It wants to limit the scope of liability, by not requiring manufacturer to only warn the average
user instead of the people who would actually use the machine or product.
 The manufacturer does not have to warn about a product’s risk which was obvious. (Open and
Obvious Doctrine.)
 Information Overload – If courts require mfg to warn of open and obvious risks it will distract
from more important stuff. Courts rejected manufacturers giving too much information.

 Note: Latinism - Plaintiff attorney will always have a better warning. Given the vagueness of
warnings the manufacturer should never be able to have a bad product design and fix them with
a warning. Warnings are so ineffective that the manufacturer should not be excused from
making a product that is safe. A good warning is not an excuse to protect companies from
liability.
 25

Warnings have different effects on different people, we are looking at the reasonably prudent person.
There is no really meaningful or effective standard. Instructions or directions on how to use the
products is also considered under warning defects

 Note: Virtually all design defect cases are warning cases.

Post Sale Duty to Warn – Once manufacturer finds out about a certain consumer use of product,
they must warn of that use. (Feldman case)

Comment J p.746
Pro ∆
Presumes that people would read and follow warnings.
This is what the manufacturer would argue
Courts are starting to reject.

Heeding Presumption p 820

Pro ∏
(Reverse comment J) juries are entitled to presume that if the manufacturer would have provided a
good warning then Π would have followed the warning and reduced or eliminated the injury. Meets
the Π burden of proof.
This is what the Π would argue.

A. Important in proving causation.

B. Rebuttable presumption (by the Δ) that says that they would have done something
different if the warning was good.
C. Restatement third rejects the heading presumption.
D. N.J. and majority of jurisdictions use this.

Cases:
MacDonald v. Ortho Pharmaceutical Corp pg. 805
26 year old has stroke while birth control pills. Π argues that the warning was inadequate, had she
known of the possibility of a stroke she would not have taken the pill. Rule (Learned Intermediate
Rule this reduces the liability of the manufacturer.) was that it was the manufactures duty to warn
doctor who would in turn inform patient. This case overturned rule and required that manufacturer of
medication now warn both doctors and users of dangers.

The Learned Rule is still excepted by 2/3rd of the jurisdictions.

Policy argument: This changed in light of manufacturers pushing products directly to the users.
Δ would argue too expensive ie focus group.

Campos v. Firstone & Rubber Handout (pg.202)

Warning case. Tire explodes while employee is filling inner tube. A duty to warn is not automatically
extinguished because the injured user or consumer perceived the danger. A better warning could have
been given.

Beshada v. Johns-Manville Products Corp. handout pg. 45

Class action suit for asbestos.
 26
Justice Pashman: Wanted to make a landmark decision that made manufacturers liable for unknown
risks that their products caused. He was trying to change the law.

The court tried to decide the case on a warning defect theory. The warning in this case was not defect
b/c the risks were not forseeable to the manufacturer. The court in this case should have used a
policy argument to hold the manufacturer liable. The manufacturer is in a better position to spread
the cost and also it is not fair to impose liability on an innocent Π.

 Π should have the right to show that the harm out weighs the benefits
 The risks can been reduced to the greatest extent possible without lessening the value of the
product.
 The product is unsafe if the better warning is cheaper then the risk.

Latinism:
In no cases are the medical risk found by the manufactures or FDA. Independent doctors, and
scientist who see a problem and mobilizes the medical or scientific community find the dangers.
Manufactures spend time denying information and not finding problems.

Feldman v. Lederle handout (yellow tooth girl)

The risk was not known when the girl first started taking the medication, but was later realized.
Imposed a foreseeability requirement. Ridicules the notion of not being able to warn when there is no
way to warn. Shreiber did not address the policy arguments that Bashada used. Manufacturer must
warn about the risk that became known after the sale. An important and powerful holding. This is the
post duty to warn doctrine.

Latinism – When product was marketed out the level was 10 by trial it was at 1000. What is the
treatment when the risk was smaller. (If risk is knowable, but actual risk turns out to be much higher)

Jackson v. Coast Paint & Lacquer Co. p 818 note 5

Π painting in an unventilated area. A/C sucked the fumes into the kitchen where fumes came into
contact w/ pilot light and fumes ignited. Π proved Δ should have provided a better warning.

 Note: Causation is based on the particular facts of the case and the situation of the Π.

 Note: In warning defect “state of the art” pertains to the knowledge of risk. If manufacturer
didn’t know of the risks they can’t warn against them. Rest 3rd the risks of unknowable risks
fall upon the Π. Negligence test-risk must be foreseeable.

XXI. Defenses
A. State of the art defense
When there is no safer alternative it is called state of the arts defense.

If product was made as well as it could be, there was no better design. If defendant shows it is as safe
as it can be. There is no balance test, if the product can’t be better than it is.

Cases:
O’Brien v. Muskin Corp – handout #4 pg.176
Blamed it on the nylon pool liner. They took the state of the art defense. The P tried to use the Rub
(the overall risk should be balance with the overall benefits) Trial court threw it out because of State
 27
of the art defense. The appellate court ruled that the comparison should have been done. The Π has
the right to show that the harm outweighed the benefits. This was a controversial ruling because
many products take this defense like cigarettes, alcohol, and certain chemicals.

Restatement 3rd 2b . Page 749

(not law, advisories which jurisdictions can choose )
It would like to throw out hindsight and look at foreseeability and protect the state of the art defense.
Its says no to the 2nd test and barker test and incorporating the consumer expectation test into their
statement.
(this will take it back to pure negligence, because it loses hindsight and adds forseeability.)

Suter v. Angelo Foundry handout

Design defect case, Π gets arm stuck in machine when he accidentally turned it on.
Δ argued contributory negligence and the court ruled comparative negligence. They still used the rub
theory.

NJ uses risk utility balancing (RUB) test, no separate consumer expectation test needed.

Some jurisdictions use the 3rd which requires that the jurisdiction have a separate test done, consumer
expectation test.

Each state chooses from the doctrines, which are offered.

Risk Utility Balance – If this was used 100% of warning cases would win. The risk would be
reduced to the greatest extent. Then any safety improvement would mean that it was not the best
warning.

Legal Continuum

Reasonable Best feasible warning

Risk reduced to greatest extent

Note: Hindsight
Good for Π. Based on the most recent information of risks known, but in negligence it is at the
time that the Π was exposed to the product.

B. Treatment of contributive comparative negligence under strict liability.

Product must be found defective.

Negligence Comment N Daly Daly - Mosk dissent Suter

Any unreason- Π must know of Any unreason- Argues for the 3 Only when the 3 comment N
∏’s Behavior able behavior the danger able behavior. comment N factors are present.
Unreasonable factors. Were Employee can’t meet volunteer
Voluntary present he status. Employees don’t
exposure wanted the bar. volunteer it is their job(good for
Effect on employees)
recovery Bar or Bar to recovery Apportionment Bar Apportionment
apportionment
 28
When Π behavior voluntarily or unreasonably exposes themselves to known danger:

C. Comment N
3 Factors:
1. Knowledge of the dangers
2. Unreasonable
3. Voluntary exposure
Once all 3 requirements are met then comparative negligence is met.
Why is New Jersey different?
It is the most favorable because of where you can get the defense. Look at Suter.

Cases:
Daly v. General Motors Corp. p 831
Π drunk speeding w/o seat belt. Was Daly entitled to recovery even though he was very bad.

D. NJ State Statute
1. Defect
Provision A. Mfg not liable if:
1. Brings back State of the Arts defense. “Practical” on page 468 sneaking in the over-rule of the
RUB test. No alternative design, then the courts can’t use the RUB test.
2. Basically says the same as #1, this has been influenced heavily by the alcohol , drug, and tobacco
industries. If there is no alternative design
3. Feldman’s opinion – He reverses Bashada and tries to reinstate State of the Art (Forseeability)
Trying to deceive the public.

Provison B. Mfg liable if ∏can prove:

1. Product is unsafe or ultra hazard and
2. The ordinary user or consumer of the product can not reasonably be expected to have knowledge
of the product risk.
3. The product has little or no usefulness.
i.e. Lawn Dart - There are really no products that can pass all three tests.

2. Warning defect
The statute now limits the information to adequate or reasonable warning. (Makes no sense.) Greatest
change was putting back the state of the art defense.(anti ∏)

Compensatory damages – Compensate the injured Π for the tortous or illegal lost that was suffered

Punitive Damages (New Jersey Statute pg. 72)– Intent to punish bad behavior.

1) Very few cases, compensatory damages are not needed for punitive damages.
2) Statute does not tie the two damages together

Two separate trials:

1) Products liability tort suit for compensatory damages
2) Then have another trial for punitive damages
a. Prevents evidence of badness and wealth from going into first trial.
b. In general awards are infrequent.
 29

∆’s behavior was sufficiently bad that the jury would find that the words were descriptive of
behavior.
 Wanton
 Reckless
 Malicious
 Evil acts

There is a doctrine problem that knowledge of risk and leaving of risk in product is enough to warrant
punitive damages.
a) No clear legal boundaries
b) We want to know of every risk
c) Must remove some of them (balance the costs and risk to save $)

Cases:
Gillham v. Admiral handout pg 99 - Televison sets that exploded into flames and injured Π. The Δ
Knew of the risk and left it in knowing of the danger of fire. Here the Δ had to pay punitive damages,
even on appeal.

Grimshaw v. Ford Motor Co. pg 916 Pinto case - Knew of the risk and analyzed the cost of fixing the
problem and decided against it. Not a clear case of punitive damages. Cheaper to pay injured parties
than to fix it. Here there was also punitive damages, but Latin, was not sure if this was right.