Professional Documents
Culture Documents
Fall 2009
Torts
Kessler
GENERAL OVERVIEW:
Tort: there is no single definition of “tort”. (1) tort is civil wrong committed by one person
against another (2) torts can and usually do arise outside of any agreement between parties.
Kessler Tort: The kind of injury or harm for which the courts will order a remedy in a civil
proceeding at common law, not contract or criminal law.
Ladder of Abstraction: The law can be very generic and abstract. You apply the law by
climbing the ladder of abstraction (or you may want to reverse the ladder so things are more
abstract as you climb). Either way, you start with something that is more of an idea, and apply it
up the ladder until you can apply it to your particular set of circumstances. At the bottom of the
ladder, be very specific as to the facts of the case.
Ex. Only one Bessie the Cow. Going up the ladder of abstraction, things become more
generalized. Ex. Bessie--cow--livestock--depreciated asset.
General Points:
• If you have the facts, argue the facts. If you don’t have the facts, argue the law. If you
don’t have the facts or the law, argue the policy.
• Sufficient evidence is enough so that one reasonable juror could differ, this makes it
enough to go to court.
I. CAUSATION: CAUSE IN FACT: The claimed negligence must be the cause of the
injury.
1
• Cause in Fact: P must prove by a preponderance of the evidence that D’s negligence was
the cause in fact of P’s injuries.
• Injury wouldn’t have happened at all “but for” the NEGLIGENT, wrongful, act of the D.
• Negligence + CIF=Liability
o D is only liable for those damages that were caused by his negligence. Defendant can
be held guilty if it appears that his conduct was the probable cause of the injury. This
is not an absolute burden, just more likely than not, absolute proof is not necessary.
o P must show that negligence was caused by a preponderance of the evidence. The
P must establish a reasonable causal link between defendant’s actions and plaintiff’s
injury. Proof is sufficient if reasonable men can differ, then it will go to the jury, and
this is half the battle for plaintiff’s attorney.
Cause in Fact:
o Defendant can be found liable if it appears that his conduct was the probable cause of
the injury.
o The burden is not absolute proof, only "more likely than not."
o Plaintiff must establish a link from defendant's conduct to the harm suffered by the
plaintiff -cause in fact. (But for the D’s negligence the accident would not have occurred)
o Proof is sufficient to go to the jury if "reasonable jurors can differ" on the facts.
o Judge -order motion to dismiss if jury is left to speculate on the facts – guessing cannot
establish causation.
If reasonable jurors can differ then the evidence is sufficient, and makes it to the jury.
(Kirincich)
If the causation is sufficiently proven if the claimed negligence [naturally leading to the
occurrence] greatly increases the chances of the injury happening. (“Greatly multiplied” the
chance). (Reynolds)
2
If the injured party can testify it elevates a legal fact proof problem. (Reynolds)
If there is another equal and probable explanation then the case can’t go to the jury because
it is too much speculation. (McInturff)
RULE OF LAW: If jury speculation is required to show but-for cause, P cannot meet the burden
of proof. Jury speculation as to the cause of an injury or death, absent any evidence, is not
sufficient to maintain a verdict in plaintiff’s favor. The jury is only allowed to determine the
facts. (CONJECTURE AND SPECULATION CANNOT ESTABLISH CAUSATION).
Grimstad:
F:Employee/Captain fell off barge owned by D. No lifesaving equip. was on board. Wife goes to
get rope from cabin, when she gets back he has drowned. Captain was the one who was
supposed to place the equipment. P couldn’t swim and he drowned.
Issue: Did trial court err in denying motion to dismiss?
P argues: D’s failure to provide adequate life saving equipment was CIF of death. Must prove
that D’s conduct was the probable cause of injury. (Preponderance of the evidence: More
likely than not).
D: Insufficient evidence of CIF. P failed to meet their burden, and reasonable men
cannot differ, when they can’t differ, no issue for jury. Don’t know where the equipment would
have been or if he would have even gotten to it since he could not swim. Move for a Directed
Verdict.
FYI: Jury could only speculate as to the location of life saving equipment if it had been on
board and whether even if it had been accessible if the decedent would have gotten to it. Juries
should decide should decide case based on facts. *No proof that if adequate equipment was on
board P would have even gotten to it b/c he couldn’t swim.
H- D wins a directed verdict. Evidence is insufficient when the jury has to speculate.
R- D is only liable for those damages that were caused by his negligence. P must establish a
reasonable causal link b/t D actions and P’s injury. The negligence case fails because of
insufficient evidence of proximate cause of defendant’s negligence. The lack of sufficient
emergency equipment did not cause the P to fall overboard and drown. Judges obligations to
protect D in motion to dismiss when P produces facts that will cause jury to speculate
– therefore motion to dismiss. P losses due to insufficient evidence.
RULE OF LAW: When a reasonable juror can differ (if one reasonable juror can rationally
believe what P has to prove than he differs) - that means it is not SPECULATIVE. If reasonable
jurors can differ then the evidence is sufficient, and makes it to the jury. If no, then directed
verdict for D.
Kirincich:
F: decedent (P) fell off dredge and was carried away by tide. Shipmate tried to save him, but
the ropes were not buoyant enough to save him (inadequate lifesaving equipment). P wins.
Issue: Did the lower court err in granting motion to dismiss?
P argue: Argues that inadequate lifesaving equipment failed to save him, it was thrown, it was
within inches of him and it wasn’t buoyant enough. Here, K was above water when rope was
thrown, and he could swim. An adequate floatation device would’ve dramatically helped save his
life. No speculation here. Distinguishing from Grim.
D argue: similar to Grimstad and we should also win. Cannot let jury speculate as to
3
whether equipment would have saved him. No way of knowing if adequate floatation device was
on end of rope, and thrown to him if decedent would have actually reached it and therefore have
been saved.
H: Judge erred in granting motion to dismiss – If sufficient evidence is defined in this case
that one reasonable juror could believe that the inadequate lifesaving equipment caused his
death, it’s enough to go to the jury. If reasonable juror can differ on the facts then evidence
should make it to the jury to decide (but not if jury has to speculate).
P wins, jury thinks that adequate equipment would have saved him.
2 options in Cause in fact: Trial Judge decides if reasonable juror could decide if it is more
likely than not (like in Grim) inadequate life saving equipment was cause in fact of P drowning
(without speculation of facts). 1. If NO, (life saving equipment was not cause in fact) directed
verdict for D. 2. If Yes, case goes to jury for deciding.
Rule of Law: If facts or evidence presented, by expert testimony or otherwise, establish that
the defendant’s negligent act more likely than not caused the plaintiff’s injury, liability will
attach. (LIABILITY EXISTS WHEN THE DEFENDANT’S CONDUCT WAS MORE LIEKLY THAN NOT
THE CAUSE OF INJURY).
Zuchowitz: Dr instructed Ps decedent to take double the maximum dosage. She then got PPH
and died. To get to a jury all P needs to prove is: that a negligent act was wrongful because
that negligent act increased the chances that a particular type of accident would occur. Then P
needs to show that that result/accident did occur. D would then need to bring in evidence to
disprove this “but for” cause.
P: Negligence = prescribing an overdose of Danocrine to P was CIF of death.
⇒ Brings in expert testimony (in pulmonary diseases) to prove that the progression
and timing of P's overdose supported a finding of drug induced PPH to a reasonable
medical certainty (Expert testimony to show that the overdose caused the harm).
(aka negligence = why accident occurred and therefore death resulted).
D: Needs to bring in evidence to disprove this “but for” cause (aka didn’t prescribe it in that
dosage – or that Danocrine caused was CIF of death not just the overdose.
H: The court decided that when a negative side effect of a drug is demonstrated and the drug is
prescribed in an unapproved excessive dosage, a strong causal link to the harm has been
shown.
R: For LIABILITY to exist - it is necessary that the fact finder be able to conclude, more
likely than not, that the overdose was the CIF of P's illness and death.
The mere fact that the exposure to Danocrine caused is responsible for the disease does not
suffice proving that D was negligent in prescribing an over dose of Danocrine to P and was
therefore the CIF of death. When the defendant’s act increases the probability of an accident
and then the accident happens, the defendant must rebut the presumption of a causal
connection between the increased risk and the occurrence of the accident.
Incorrect to assume: Increasing the probability of an accident and the subsequent occurrence
of that accident is not equivalent to evidence of causation - P needs to prove that it was more
likely than not that the overdose was the CAUSE of Ps death.
4
Rule of Law: Where the negligence of the defendant greatly multiplies the chance of an
accident to the plaintiff, and is a character naturally leading to its occurrence, the mere
possibility that it might have happened without the negligence is not sufficient to break the chain
of causation between the negligence and the injury, thus a reasonable juror would find but for
(negligence must have caused injury -more likely than not) the D’s negligence the P’s injury
would not have occurred.
FYI: Here it went from lighted to unlighted area so fat lady could not re-focus. Just because
something could have still happened, doesn’t mean it should be neglected; consider the natural
and ordinary course of events, don’t suppose what if. Insufficient lighting (needed stationary
lights), several witnesses testified that they were told to “hurry up”; contribute to her falling by
not having enough light, significantly increases the chance of her falling; no speculation,
speculation going the other way (defense is asking for speculation, what if it was lit, what if she
had misstep anyways, etc.) *Reynolds expresses the legal factual point: which is that
5
plaintiffs testify for you and that eliminates legal factual problems (unlike McInturff).
RULE OF LAW: Unless there is probable cause that an event caused an injury, a jury will not be
allowed to decide (judge must dismiss). To show mere possibility is not sufficient proof.
Evidence must show negligence greatly multiplied the chances of the accident occurring, but also
that other factors weren’t equally possible in causing injury.
McInturff v. Chicago:
F:decedent fell down stairway and was found dead at bottom. Stairs were shown to be worn, no
handrail and in violation of several safety codes. No eyewitnesses to accident.
P: The stairs were the cause in fact, had it not been for the stairs being worn and without a
handrail, decedent would not have fell. The worn down stairs greatly multiplied the chance
of the accident happening (Reynolds).
D: (distinguish Reynolds) In Reynolds, testimony of woman and witnesses erased speculation to
other causes. Here, decedent couldn’t tell us what caused injury (he is dead and no
witnesses), pure speculation. He could have been pushed, tripped etc... we don’t know!
Mere possibility does not provide causal connection b/c there are too many other possible
explanations.
H- Can’t just show that negligence of maintaining stairwells greatly multiplied the chances the
accident would happen, but P must show that no other factor could have caused the accident
and that the negligence more likely than not was the CIF of the accident. Too much speculation
about facts (insufficient evidence) to go to jury.
R- (Jury) Cannot assess damage on conjecture (guess)/speculation as to what probably caused
the death (Grim). *Insufficient proof due to the possibility of a third party. Evidence
must show negligence greatly multiplied the chances of the accident occurring, but
also that other factors weren't equally possible in causing injury. Reynolds and witnesses
were able to say what it was not (b/c she said she did not know what it was that caused her to
fall but she could eliminate possibilities like being pushed) whereas this guy is dead and there
are no witnesses to testify. Insufficient evidence leads to too much speculation to go to the jury.
Judge must issue direct verdict for D – motion to dismiss.
Traditional approach – joint and several liability - If more than one person is a proximate
cause of Ps harm and the harm is indivisible, under the traditional approach each D is liable for
the entire harm. The liability is said to be “joint and several”.
Modern approach – tends to cut back on joint and several liability but there has been a very
sharp trend in recent decades to cut back, or completely eliminate joint and several liability. This
has been mainly due to the rise of comparative negligence as a replacement for contributory
negligence.
• Joint Liability: Each of the several D is responsible for the entire loss which they all caused
in part.
• Several Liability: Each D is responsible only for his proportionate share of the loss.
6
• Joint and several liability: if more than one person is a proximate cause of Ps harm, and
the harm is indivisible, each D is liable for the entire harm, although P can only recover from
one D.
Joint Tortfeasors
Plaintiff may be able to recover some damages under the loss chance doctrine if they could
show that it would have happened slower and they could have recovered some of their
property, etc. (Dam Hypo 2)
Burden of proof in “joint tortfeasor with God” is on the defendant to show that the other
cause was nature. (Kingston)
Where 1) P is innocent can show 2) that both people were negligent, and 3) only one person
could have caused the injury, the burden of proof will shift to D’s to show that they did not do
it. If they can’t, then they both will be held liable. (Summers v. Tice)
When the defendant is negligent and it stops the plaintiff from proving causation, then the
burden is switched to the defendant to show that his negligent actions didn’t make a
difference. (Lone Palm Hotel)
To prove market liability 1) Need all potential tortfeasors; 2) fungible product (must all have
same defective qualities; 3) can’t identify who caused the injury through no fault of the
plaintiff; 4) all the manufactures that created the defective product during the relevant time
are named defendants. (DES case, didn’t work on Lead Paint)
7
P losses because can’t be a joint tortfeasor with God.
Rule of Law: When one of two joint tortfeasors is unknown, the other is fully liable. Joint
wrongdoers have the burden of proving which caused the injury or both are liable. If D can
prove that the other tortfeasor was equal PC of damage/injury and was an act of nature – he
avoids liability because damages would have occurred without his negligent action.
Kingston v. Chicago
F: Two fires destroy P’s property. One was set by D’s locomotive sparks that set a fire and one
was almost certainly caused by a third person. Each fire individually would have caused the
damage, and both were PC to the P’s property destruction.
P: Don’t know what caused the other fire, but it is expected to have been a human cause. D who
caused one fire shouldn’t be allowed to avoid liability (Pequa -joint tortfeasor with God), D has
burden to prove the other fire was caused by nature.
D: Says that the other fire could have been caused by nature and he shouldn’t be responsible
(joint tortfeasor with God means D is not liable for damages)
H: Distinguished Pequa saying that it doesn’t apply because do not know what caused the other
fire and are not going to speculate, the burden of proof is on the D to show what caused the
other fire, this is an issue of proof (like an affirmative defense). If you cannot tell who started
the other fire, D has to reasonably prove it was natural causes. Burden shifts from P to D to
prove who actually caused the fire. If that cannot be done, the D loses.
R:Whether a defendant is liable for damages when an unknown third party has acted
simultaneous, independent, and is an equal proximate cause burden of proof is on the defendant
to show that the other cause was nature. If D cannot prove the origin of the other fire then D is
responsible for the entirety of the damages. P wins because D cannot prove (aff’m
defense) that the other fire was caused by nature, jury would have to speculate
[Policy: wrong doers shouldn’t escape liability while P suffers]
Glass Panel Hypo: P walked into store. Under door, glass pane breaks and glass falls on head
causing injury. He then gets malignancy tumor on head and sues for pain and suffering on head
8
because he developed CANCER.
P: Your negligence in maintaining glass above door is CIF of me developing cancer.
D: Motion to dismiss (summary judgment). Insufficiency of evidence to prove glass
negligence is the CIF of your cancer. P has failed to present prima facie case. Speculation and
conjecture. Willing to pay for injury of cuts to the head, but pure speculation (Grim) to think cuts
caused cancer. Glass falling on your head is not the PC of your injury. No expert testimony
either to prove causal link that accident could have caused cancer – no credibility.
H- Mere possibility is not sufficient proof. Not enough to prove CIF. Unless there is probable
cause that an event caused an injury, a jury will not be allowed to decide. To show mere
possibility is not sufficient proof. Must rule out other possibilities.
Dr. Ewing Hypo Woman gets hit in the breast. She is hurt, but later also develops breast
cancer. She sues. P has Dr. Ewing that will testify cancer is possible when you hit someone in
specific area of the breast. D has 4 well respected doctors testify that Dr. Ewing’s idea is
ridiculous.
D- *(summary judgment – motion to dismiss if P did not bring in expert but P did) P
has failed to present prima facia case, like above hypo. Speculation and conjecture. Cannot
have jury speculate. Here, it is one Dr. against 4 doctor’s opinions, so P’s evidence is
insufficient.
Ct -W/directed verdict, look at P evidence. If experts could differ on the facts, so could
the jury. Jury can assess the credibility of the witnesses and reasonably make a decision— not
as speculative when there is a EXPERT testimony.
Policy: The policy behind a decision is key. Look at different contexts for the purpose of the rule
and how to best interpret it.
Grimstad Policy: Jury to make inference on stipulated facts.
Kircinich: If one juror can reasonably differ on facts than it should go to jury.
Ewing: Does the same, but also must determine which witness is more credible.
9
H: This defense is 100% true but it leads to a bad result: the hotel owner would get off even
though they violated both elements of the statute. A stupid statute like this gets passed because
there are poor hotel owners who cannot afford lifeguards. The court held that the legislature had
the statute for a reason (can’t analyze legislative intent) and this puts the assumption that the
sign would have made a difference. There must be an incentive to provide a sign (or no one
would follow rule). This is a policy argument that shifts the burden to the D – b/c hotel is
negligent by not having lifeguard AND not having a sign (Summers) to prove that the lack of a
sign didn’t change anything, and was therefore not the CIF of death. P was deprived of a witness
because of the lack of a lifeguard.
R: Lack of lifeguard caused drowning. Not sure whether sign caused drowning. How do we deal
with fact that we know sign was not cause? We cannot hold that signs don’t make a difference
because CA legislature says that they do. Signs must have reasonable chance of making a
difference. Not impossible that D would win. D must prove that sign didn’t make a difference,
not automatically assume that sign provided useless info b/c it could have made the adult
reinforce what adult already knew by being reminded by the sign.
Policy: we do not want D, the negligent party, getting away with this because P has no info.
P wins because D cannot prove that the lack of a sign was not the cause (switching the
burden is how courts deal with a situation that is unfair to P).
The general rule for CIF is that by a preponderance of the evidence, don’t use purely statistics
alone and there must be individuating evidence (people are treated as individuals). Burden on P
to prove.
EXCEPTIONS to CIF: Summers: alternative liability; & Sindell: MSL (allows for some
recovery); chance interest medical survival cases.
Joint liability imposed on multiple tortfeasors when there are simultaneous tortious acts and
uncertainty as to which act was the proximate cause of an injury.
1) that both people were negligent (both identical tortfeasors acting negligent), and
2) only one person (out of 2) could have caused the injury, the burden of proof will shift to
D’s to show that they did not do it.
If Ds’ can’t prove their innocence, then they both will be held liable. Once the above conditions
are met, the burden of proof shifts to the D and they will be held jointly and severally liable.
*Nature of injury prevents P from knowing who caused the injury. Ds’ are in a far better position
to offer evidence to say who caused the injury and who did not.
Summers v. Tice
F: P gets shot in the eye when two of his hunting buddies fire negligently in his direction. Both
shots came from the same gun, but don’t know which person the shot came from.
P: Not fair for the plaintiff to lose because he did nothing wrong, he was not negligent and he
should not bear the burden of figuring out who shot the gun. There was no sufficient evidence to
10
prove which D was guilty and CIF of injury. (Cite Kingston Policy reason – P shouldn’t suffer and
not get damages b/c of Ds’ negligence but different b/c Ds’ were independent tortfeasors – it
was either one or the other that shot the P). Both fired negligently, were simultaneous actors,
and prevent the plaintiff from identifying who did in fact shoot her. D is in the better position to
know who did it.
D: both will say “it wasn’t me” and why should I have to bear any liability. Insufficient evidence,
each D will say that he didn’t do it and both will get off.
H: Burden of proof shifts to each D to prove innocence. Their negligence was the CIF and
the burden should rest with each to prove their own innocence, they are joint tortfeasors. D is
responsible for the plight of the defendant (not being able to prove it). Both liable unless they
can prove the other person did it.
R: When the appropriate situation arises as a matter of fact (identical aspects) the judge can
charge the jury that the defendants should prove that they didn’t do it, because the plaintiff’s
proof is going to be sufficient to get to the jury (it could have only been one D or the other –
each D 50% chance of causing injury).
If these requirements are met, a rebuttable presumption arises in favor of the plaintiff, and a
court may order each defendant to pay damages equal to its share of the market for the
product at the time the product was used.
A manufacturer may rebut the presumption and reduce its market share damages to zero by
showing that its product could not have possibly injured the plaintiff (for example, by
demonstrating that it did not manufacture the product during the time period relevant for
that particular plaintiff).
General Rule for Market Share Liablity: If P cannot prove which of three or more person
caused his injury, but can show that all produced a defective, fungible product, the court
will require each of the Ds to pay that percentage of Ps injuries that Ds sales bore to the
total market sales of that type of product at the time of injury unless D can exculpate
themselves.
11
⇒ In market share theory: courts are split on whether each D should be allowed to exculpate
itself by showing that it did not make the particular items in question – some more modern
cases hold that once a given D is shown to have produced drugs for the national market, no
exculpation will be allowed.
⇒ Courts adopting the “market share” approach often reject joint and several liability – they
allow P to collect from any D only Ds proportionate share of the harm caused. For example,
had P sued a single D and showed that D accounted for 10% of the market. If court goes by
market share approach and D is found to be negligent, P only gets 10% and D cannot take
the full 100% hit for the industry.
⇒ If the product is found to be socially valuable, such as a vaccine, courts will likely not
apply the market share approach.
12
moved, etc (DES was a 9 month span), and therefore would hold some manufacturers liable that
couldn’t be liable.
Second, not alternative liability because not simultaneous in producing and all entities have not
been joined over the time period, all potential tortfeasors not named. Third, not concert and
conspiracy of actions because there is no evidence of acting in concert and failure of the P to
demonstrate malice on the part of D.
H: No market share liability (products not identical, all manufacturers not listed), no alternative
liability (not simultaneous in production and all potential tortfeasors not named) and not
conspiracy (no evidence of malice or acting in concert).
P losses because too long a time span, not all defendants named and different
concentrations in the product (not identical).
Gangrene Hypo
F:D1 negligently breaks Ps arm. D2 negligently sets the arm, leading to gangrene and then
amputation. D1 is liable for all harm, including amputation (as he is but for and proximate case).
D2 is only liable for the amount in which his negligence worsened the condition – the difference
between a broken and amputated arm.
Contribution: D sues a tortfeasor to get the other liable D to pay his share of the total damage
(see Dole later on also).
H: a court holds that two D1 and D2 are jointly and severally liable to P for $1 million. P collects
the full $1 million from D1. D1 may recover $500,000 from D2. If two Ds are jointly and
severally liable, and one D pays more than his pro rata share, he may usually obtain partial
reimbursement from other D (Contribution). Each D in the end would have paid an equal
share. This also works in comparative negligence case: if D1 was liable to P for 2/3 and D2 was
liable for a third in the same case for $1 million. If D1 pays it all, he can collect $333,000 from
D2.
Dole v. Dow Chemical Dole dies in chemical accident on the job. P sues manufacturer of
chemicals b/c can't sue employer due to Workman's comp. rules. Manufacturer impleads
employer for not following their instructions.
H: Jury finds Employer 90% and manufacturer 10%. P collects the whole thing from
manufacturer, who then collects from employer. Look at it as a huge pot- manufacturer puts in
100% of the total money and then collects 90% of it from employer - P takes all 100% because
he found an end around loophole.
Significance: P provided with an end around the Workman's comp. rule. D's are
Severally liable so D's fight among each other to see who is more liable- in this case employer
was 90%. Sure beats getting shitty money from the workman’s compensation act.
Limits to contribution:
1) an intentional tortfeasor may not get contribution from his co-tortfeasors (even if they too
behaved intentionally).
2) The contribution D (that is, the co-tortfeasor who is being sued for contribution) must in fact
be liable (example would be husband driving negligently with his wife as a passenger who then
crashes with a negligent D – If wife gets full verdict from D then D may not recover from
husband (the joint tortfeasor) since intra-family immunity would prevent wife to recover from
husband directly, therefore D cannot get around that).
13
What if one D settles?
⇒ If D settles, he may generally obtain contribution from other potential D’s (he has
to prove their liability)
⇒ Where D1 settles, and D2 (later gets a judgment) sue D1 for contribution the courts
are split:
1) Traditional approach: D1, the settling D, is liable for contribution (probably the
majority view).
2) “Reduction of P’s claim rule – rejects contribution, but reduces P’s claim against D2
pro rata (so D2 comes out the same as with contribution)
3) “No contribution rule:” you guessed it; D1 is not liable for contribution. This is
popular as it gives Ds strong incentive to settle.
Indemnity case: one of several (in the tort context) wrongdoers cannot recover against
another wrongdoer. When two parties act together, the party held responsible for the act cannot
have indemnity (or a 100% shift of liability to the second D) from the other because both are
equally culpable and damage results from their joint offense. The act is what is wrong for the
first wrongdoer and the other is liable for failing to discover or correct the defect. Basically,
concurrent tortfeasors are liable for the whole of an injury whenever negligence is a proximate
cause of the injury.
Most jurisdictions have not adopted the loss of chance rule. NY HAS.
• Doesn’t solve the issue of how much the injury is worth
• Chance of life is not worth anything unless you survive
• If you survive the chance is worth the full cost of life
• Can’t tell who would have survived
• Loss of chance isn’t compensable whether you live or die
• Some people who would have survived should get 100% and some other people get 40% and
they would have died anyways
• Some jurisdictions have adopted loss of chance (like NY) leave it up to the jury and
let them decide how much its worth
• Some jurisdictions have adopted the loss of chance and then just break it out by percentage
• Over compensate the people who choose to sue
• Not a rational solution
o It’s a way of satisfying the “perceived sense of unfairness”
• HAS NOT BEEN ADOPTED BY MAJORITY OF STATES
• Not been applied to other kinds of liability only medical malpractice situations
• Too dangerous - find Ds conduct created it MUCH MORE LIKELY and then therefore it would
entirely change our nature of compensating risks
14
o Badly treat someone who is undeserving, and protect someone who deserves
protection
15
between the increased risk and the occurrence of the accident.
P: Ignores the data (b/c it is not more probably than not). Policy argument comes from
Herskovits, don’t allow them to get away with contaminating the water (In the stairs and
drowning cases, there was no percentage). Ds negligence greatly multiplied the chance of people
getting typhoid and more people did get it (stats prove it). Natural consequence of this
negligence (natural and probable consequence) Apply Reynolds – if reasonable juror could differ
on facts then enough to bring it to the jury). 80% increase is enormous, increase of probability.
Have violation of standard of care – CIF of increase in injuries.
D: Could say that when there are two equally probable causes then the jury would have to
speculate. It is more likely than not that the outbreak was not the CIF of the Ps injuries bc less
than half (45%) of injuries were a result of outbreak. Not equally likely because it didn’t double.
Less likely that the P is part of the typhus causing group. Less likely than not that they are in the
typhus causing group.
H: If the burden of proof is switched, the defendant would win. If the plaintiff has to prove, then
he loses. Depends on who has the burden of proof, if P has it he loses, if D has it he
loses.
II. NEGLIGENCE
Generally: the tort of “negligence” occurs when Ds conduct imposes an unreasonable risk
upon another, which results in an injury to that other, thus causing a breach of that duty. The
negligent tortfeasor’s mental state is irrelevant (all that matter is the reasonable person)!
16
3 Defenses to Negligence:
1. Contributory Negligence- any amount of fault on part of P that causes the P’s own
injury will cut off his right to recover against the D.
2. Comparative Negligence- recovery for the P is equal to the amount of damages he
suffers minus those damages attributable to him or in essence the amount of his fault
causing the relationship. Here the P will recover the percentage to which he did not
contribute.
3. Assumption of Risk- P recovery is cut off entirely if he voluntarily encountered a known
risk.
Burden of Proof: In a negligence case (as in almost all tort cases) P bears the burden of the
proof.
Negligence
Four Elements of Negligence: 1. Duty, 2. Breach, 3. Cause, 4. Injury. Breach of your duty or
violation of standard care that causes injury
Must be reasonably foreseeable that the injury would occur (Blyth Water Works case)
Hand Formula: B <= PxL (then there’s liability, Burden (B) < Probability (P) x Severity of
Injury (L)
If the burden of doing something differently is small but it creates unreasonable risk to more
people (general population) then there obligation to do it differently. [Can create reasonable
risks if it prevents greater harm.] (Cooley)
If the probability of harm (foreseeability) is extremely low but the severity is extremely high, it
is likely to outweigh the burden. (Chicken Hawks)
Ignorance isn’t a factor that is taken into consideration when deciding if someone acting like a
reasonable person. (Menlove).
Reasonable beginners are held to the standard of what a reasonable beginner knows or should
know. (Brake/Clutch Hypo)
Newly licensed drivers are held to the standard of licensed drivers, not newly licensed drivers.
Experience doesn’t increase the duty of the standard of care. (Race car driver)
Child Standard:
Reasonable child is held to the standard of a reasonably careful child of the same age,
intelligence and experience. (Child Standard)
17
Minor engaged in an adult activity is held to the adult standard. (Daniels – 19 year old on
motorcycle/ lawn mower). Some jurisdictions apply this to only licensed activities. Some apply it
to unreasonably dangerous activities.
Crazy person is required to act like a reasonable person who is not crazy. Policy argument on
insane people is that the innocent sane person should not bear the cost of the injury from the
insane person (encourages people to take care of the insane person). (Breuning)
Many different ways to look at it: What way determines what is fair?
Injury lies where it falls: whoever got injured should pay for their own injuries.
Reciprocal Risks: Can't live in a society that derives benefits without imposing some risks.
People are able to do deeds that can cause injury b/c some benefits cause risks for the common
good. Recreational acts such as Golf is a benefit we are willing to give people if that means a car
might get hit every now and then. After all, it is not foreseeable that his golf ball will hook and
then hit the car.
Negligence imposes liability b/c D did something wrong and was CIF.
BUT, if injury occurs from Natural and Foreseeable Consequence of conduct, that cannot
be avoided by conduct (hitting tennis ball), you are permitted to do the act.
Balance: Want to protect society by people being careful. Impose obligation to think ahead
when carelessness will cause injury. Deterrent effect for D's in the future.
Rinaldo v. McGovern: Ps car was damaged when D's golf ball left the course and fell on the
windshield of P's car, which was driving on a nearby road.
H: D is not liable. D was not exposing public to an unreasonable amount of risk. Nor was Ds
behavior unreasonable. His actions were reasonable and injury was unavoidable.
18
NEGLIGENCE – CALCULUS OF RISK:
Defined: Test requires a "balancing of interests" to determine whether risks taken by D are
justified.
P argues that D is negligent because: Some inexpensive precaution (railing, warning) could
have prevented a serious injury that was likely to occur.
Ds rationale for not taking precautions: The precaution was excessively costly, redundant,
ineffective or counterproductive.
Third Restatement §9: it’s a specific factor that the jury can consider in how a
reasonable person would act (in an emergency)
• Person would act reasonably based on the circumstances
• Need to take the emergency into account
19
In Blyth the Burden is the cost of the labor to put the pipes half a foot deeper. The Probability is
1/100 (of the 100 year frost occurring). Potential Liabilities (If there’s a fire you won’t be able to
put it out, Damage to houses, Potential illness and death) and there are many more liabilities.
The foreseeable risk here is vast greater bc there is no water supply if they have to re-dig pipes
or TAKE longer it may cause fire…illness etc something.
HAND FORMULA
According to Holmes, negligence has a underlying moral standard, the standard has a deterrent
effect by identifying specific conduct that is wrong
What people should think about before they do stuff (duty – not to be negligent)
1. Analyze how likely it is that people will be injured – probability that your conduct will cause
injury...
Why should an individual pay for cost of an injury that resulted from a financial based
individual or corporation activity that is done in an effort to make/save money instead
of prevent (possibly foreseeable) injury?
⇒ They take risk of being injured b/c company is doing something to benefit community
Public water supply case: good to look at: By externalizing some for the injuries that
are created as result of this business activity we are stimulating the activity Basis of
inviting liability:
o We need this company bc it benefits society. We don't want companies to spend so much
more money to reduce risk of injury (inflationary prices) than society is saving. If they
spend too much = social cost - raising cost of goods and services.
o If money in the company = money in their pocket to continue to "benefit society"
o "Injury causation cost tax" - the money they spend raises prices
Can apply the Hand formula Burden (B) < Probability (P) x Injury (L)
20
• B < PL = Liability exists.
• Translates issue into $$$. Because Burden is low for D to take simple easy precautions-
lower than the probability x the loss: D should have taken reasonable uncostly
precautions because it burdens them very little anyway to take that better or reasonable
care.
BPL ANALYSIS: Jury decides after what companies should have done before the act.
Before: Company is calc./estimating the future (Foreseeability) and how much of a B it is.
After: Jury must decide if company acted carefully. Look @ time before act, Benefits P
greatly
If yes, then use BPL to determine if safety measure should have been taken
Would society be better off if all the D’s in this D’s position were permitted to act as this D did or
instead required to change their conduct as to avoid the kind of risk which caused P’s injury?
If you tried everything you possibly could, but bad things still happen...should you be financially
responsible for the injuries that happen?
Duty of obligation = to think ahead. By thinking ahead, we can try not to unnecessarily
endanger other people. We do not have a duty not to injure other people
21
• When you take and put it into a commercial setting, we are dividing the risks and injuries
created by the commercial and industrial activities into three categories
• (1) Industry is liable for people that are injured
• (2) Industry (even if foreseeable) is not liable
• (3) External cost
D: Agreed that they created the risk. The cost (burden) of doing it differently would be greater
than the probability of injury doing it this way (more people would be injured if the power line
hit the ground).
⇒ Defense said the installation of baskets would have caused risk of possible
electrocution and fire to other people
⇒ Claimed negligence: Application of BPL:
o B = Cost of putting up safety baskets 1) costs of basket 2) Installation costs
3) Risk of possible electrocution & fire
o P = the probability that these two wires would come in contact making a loud noise
& the probability that if that happens, that it would cause the neurosis (Rare
chance)
o L = severe neuroses
CT: P must show a viable alternative. Here, alternative would have caused a higher risk of
electrocution while taking rare chance of neurosis away. Burden too high for D and bad for
society. There is no practical device that could be used that would limit the risk of injury to
others, the Burden of doing it another way is too great.
***General duty of the defendant = to take ordinary care so as not to expose people to
unreasonable risk of injury
**Chicken Hawks Rule of Law: If the probability of harm (foreseeability) is extremely low but
the severity is extremely high, it is likely to outweigh the burden. (Chicken Hawks)
22
F: Power lines going through the country, at part of the right of way, there is metal fence. The
fence is part of the right of way and is supposed to be maintained by the power company. Fence
has not been properly maintained, the fence is lying against the guide wires (the triangular wires
that hold the pole up). Two chicken hawks are fighting. Gap between the guide line and the
power lines. Birds have a 9/10 inch wing span. Two birds have wing span of 20”, they try to fly
through, causes the electricity to go through the guide wires down to the fence, through the
fence and caused a fire half a mile down the road. The farmer whose crops burn sues for
damages. Everyone knows of chickenhawks in aerial battle, too close to power lines, barn burns
down.
⇒ DUTY = take reasonable care
⇒ Plaintiff says = By allowing the fence to flop, the ∆ did not take reasonable care
⇒ ∆ says = it is not foreseeable that chickenhawks would be fighting, so the probability of
injury is zero
P: Farmer sues for damages for crops alleging that the negligence is that not enough space was
left. Specific incident that happened wasn’t necessarily foreseeable but the injury was
foreseeable because something conductive could have fallen between the space (i.e. a wet
branch)
D: not foreseeable that two birds fighting chicken hawks getting through the fence. No
negligence on not maintaining the fence because couldn’t foresee the birds flying though the
gap. Unavoidable injury – would have cost more $ than the probability of this
occurring. Not foreseeable that chickenhawks could do such damage. So B >PL
H: Specific facts were unforeseeable, but something else generally could have done
this (wet branches are clearly foreseeable…maybe improbable but not unforeseeable).
Once there is something that is more foreseeable that can cause this harm, even though this
event wasn’t specifically foreseeable the D is liable.
Its PxL (the severity (L) is very large)
The burden is maintaining the whole fence (not just this 10 feet of fence), could be 100s of miles
of fence
Probability x L (severity) has to be relatively high
⇒ P=Unforeseeable Specific injury based on Facts but Foreseeable general injury.
o You cannot get off by saying that the specific injury is not foreseeable if an injury of
the same type is foreseeable. (P = foreseeability in this case and it is low)
⇒ L=High b/c electricity is dangerous/deadly.
⇒ B=of maintaining fence is high.
***When B & L are high, just need a little P for D to be liable. Here, D was liable for a
“foreseeable injury” as this situation was generally too dangerous.
23
actually send oil products (too dangerous to send them in the mail), but instead makes dirty
water that looks like the oils and sends those. The bottles were labeled as if they were oils
Original claim: they shouldn’t have had water in bottles; D’s response could be that sending oil
would be just like Cooley case – sending the oil would have been worse than water
P: Better argument: wrongful act is that the bottles were labeled incorrectly. Mislabeled bottles
are dangerous. In real world, H20 is safer than oil, but not in chem lab when mislabeled. Says
that it was foreseeable that sending the mislabeled bottles to a chem. Lab would create some
type of risk, maybe not this exact one, but foreseeable in an unexpected way. Don’t have to see
this injury per se, just some type of injury. In chem lab, D should have foreseen it
improperly being used and causing risk— like Chickenhawks, where can’t foresee the potassium
accident, but generally can foresee accident under circumstances. The burden is very low, so
any probability of injury kills the D’s claim.
D: Says the probability of this particular event happening is 0, no matter how great the injury is
PxL is zero, so any cost would exceed it.
H: There is a probability of some serious risk of injury, maybe not this exact one, but that an
injury could occur in an unexpected manner.
P wins because D should have known that there was a foreseeable risk of some injury,
even if not this exact injury.
Rule of Law: Providing a warning of a potential danger may serve to mitigate a finding of
negligence only if measures to guard against injury were unavailable or cost-prohibitive.
(WARNINGS DO NOT CIRCUMVENT THE NEED FOR PRECAUTIONS)
24
P: argued that, even in the absence of direct involvement in the incident, United Airlines was still
aware of the potential for this type of injury and was obligated to take steps to prevent it. 2
expert witness testimony to show United did not satisfy its duty of care toward its passengers
D: United argues that P - Andrews presented too little proof to satisfy her burden (to withstand
summary judgment)D sees a low incident of injuries as incontrovertible proof that the safety
measures suggested by P's expert would not merit additional cost and inconvenience to airline
passengers - B>PxL
H: United has demonstrated neither that retrofitting the overhead bins with netting would be
prohibitively expensive, nor that such steps would grossly interfere with the convenience of its
passengers. And given their awareness of the hazard (135 reported cases) they have not done
everything that technology permits to eliminate it.
The probability of injury greatly outweighed the burden of avoiding it (HAND)
Rule of Law: A person in an emergency situation is treated as a reasonable person in the face
of an emergency, the emergency must be considered. (Lyons and Eckert)
Third Restatement §9 (page 184): it’s a specific factor that the jury can consider in
how a reasonable person would act (in an emergency)
• Person would act reasonably based on the circumstances
• Need to take the emergency into account
Rule of Law: When a person voluntarily exposes himself to a serious injury when saving a
child’s life, unless the act is reckless, it will not be considered negligent. (A PLAINTIFF’S OWN
NEGLIGENCE MAY BE EXCUSED IN AN EMERGENCY).
25
Eckert v. Long Island R.R.
F: Train could run either way – no witnesses heard whistle or bell indicating warning signal. Kid
on the railroad, Eckert throws him off the tracks saves his life and gets killed in the process.
The legal issue is: Contributory negligence on the plaintiff.
P: the railroad was negligent in the speed that it was operating in and failure to stop.
D: The P was contributory negligent because he went in front of the train, exposing himself to
danger.
H: When the exposure to harm is for the purpose of saving a life, it is not negligent unless it can
be regarded as rash or reckless. POLICY: Needs to be weighed against the value of his own life,
if it had been property (or a cat) that he was trying to save, it would have been negligent. But
trying to save a child doesn’t give you time to think. Also connects to Lyon because it’s a sudden
emergency.
P wins because his risk of harm wasn’t contrib. in attempting to save the life of a child,
wasn’t rash or reckless, there was no time to calculate the risk.
The question is NOT whether the defendant thought his conduct was that of a reasonable
person, but whether you (the jury) thinks so.
What would a reasonable _______ person in the position of the defendant do?
You breach when you act in an unreasonable way -ALL OF THIS HAS TO DO WITH BREACH OF
DUTY (negligence)
The reasonable person is a legal fiction of the common law representing an objective
standard against which any individual's conduct can be measured. It is used to determine if a
breach of the standard of care has occurred, provided a duty of care can be proven.
26
* Negligence is the omission to do something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct of human affairs, would do, or doing
something which a prudent and reasonable man would not do.
To be free of negligence, a person must exercise the same degree of care as a reasonably
prudent person of the same age and maturity. (THE IMMATURITY OF MINORS IS TAKEN
INTO CONSIDERATION).
The question is whether D behaved reasonably “under the circumstances” – the circumstances
generally include the physical characteristics of D himself.
Exceptions:
A child should be held to the standard of “a reasonably careful person of the same age,
intelligence, and experience” (not that of an adult).
When a minor undertakes an adult activity, he is held to the duty of a reasonable adult.
Lawnmower/motorcycle – any extremely dangerous activity - is an adult activity
and therefore child will be held to RP standard of an adult when a child partakes in these kinds
of activities.
The conduct of a person with a disability “is negligent if it does not conform to that of a
reasonably careful person with the same disability.” (i.e. blindness)
****While a party may not take advantage of one’s age or infirmities in a showing of
negligence, a party charged with contributory negligence is held to a standard that takes
into consideration age and maturity.
No Exception:
The ordinary reasonable person is NOT deemed to have the particular mental characteristics of D
(stupid, careless)
To avoid risk: beginners are held to the standard of care expected of those who are reasonably
skilled or practiced in the art.
EXCEPTION – when P has assumed the risk that the D will exercise a
lower standard of care (ex – experienced driver agrees to teach a novice how
to drive) - The inexperienced driver continues to get the benefit of the lower
27
standard against his driving instructor, but not against an injured
pedestrian or other driver who did not assume the risk
But it does not issue any rule, noting that "skills or knowledge are circumstances to be taken
into account in determining whether the actor has behaved as a reasonably careful person"
Expresses doubts that higher skilled driver or skier should be held
to a higher standard in an accident (this expert standard only applies to doctors
or people in a certain profession)
An insane person will be held liable for his negligence under the reasonable person standard.
An unforeseen state of insanity is an exception
Intoxication - Being drunk is no excuse - An intoxicated defendant will be held to the standard
of the reasonable sober person.
Where D has greater skills than most people: Second Restatement: provides that the D is
required to exercise the skill and knowledge normally possessed by members of that
profession or trade in good standing in similar communities
EXCEPTION : UNLESS He represents that he has greater or less skill than the average (in that
field – he doesn’t have to do “more” just has to act like a RP!)
LIABILITY IS STRONGEST WHEN: Similarly holds that the case for the higher rule is
strongest when the two parties have agreed to it, or when the D is engaged in dangerous
activities
Rule of Law: Ignorance isn’t a factor that is taken into consideration when deciding if someone
acting like a reasonable person. Objective standard –RP in Ds situation should have known or
would have known.
Vaughan v. Menlove
F: D put hay rick near the boundary of his property near the P’s property. He was repeatedly
warned that it could catch fire. It does and spreads to P’s property, P sues
P: D was negligent because he knew or should have known of the dangers. D was negligent in
leaving the hay because a reasonable person, knowing what D knew would have foreseen that
leaving the hay would create and unreasonable risk of fire that could foreseeably spread to
neighbor’s property
D: Not negligent because he’s dumb and doesn’t know about this type of stuff and had no
reason to know. Did the best that he could do. I should be judged by my own subjective
standard.
H: The court uses an objective std. of behavior (what would a RP have done)? A reasonable
person knowing what Menlove knew would have acted differently, and thus he is liable for the
damage. Defendant acted with gross negligence and the jury can decide.
28
FYI: The RP std. always involves risk avoidance. Must ask “did the D do what a RP would have
done? What would a RP have known of available and costs of alternate forms of conducts (cost
of avoidance/should have known to do).
Rule of Law: To be free of negligence, a person must exercise the same degree of care as a
reasonably prudent person of the same age and maturity. (THE IMMATURITY OF MINORS IS
TAKEN INTO CONSIDERATION).
29
****While a party may not take advantage of one’s age or infirmities in a showing of
negligence, a party charged with contributory negligence is held to a standard that takes
into consideration age and maturity.
Rule of Law: Ignorance of a local standard is excused for non-locals, reasonable non-local
wouldn’t be expected to know the standard. (Fog horn hypo)
Rule of Law: “beginner RP standard for those who assume the risk”
WHEN P has assumed the risk that the D will exercise a lower standard of care (ex –
experienced driver agrees to teach a novice how to drive) - The inexperienced driver continues
to get the benefit of the lower standard against his driving instructor ( RP standard = what
reasonable beginners are held to the standard of what a reasonable beginner knows or should
know as opposed to just being held to the same standard of an experienced driver), but this
beginner RP standard does not hold up against an injured pedestrian or other driver who did
not assume the risk.
30
Rule of Law: Newly licensed drivers are held to the standard of licensed drivers, not newly
licensed drivers.
To avoid risk: beginners are held to the standard of care expected of those who are reasonably
skilled or practiced in the art.
Rule of Law: Experience doesn’t increase the duty of the standard of care, you are still held to
RP standard. (Race car driver)
Some jurisdictions apply this to only licensed activities. Some apply it to unreasonably
dangerous activities
Daniels v. Evans
F: 19 year old P was killed when his motorcycle collided with the car of D.
P: Should be held to a reasonable standard of a kid his age
31
D: Should be held to an adult standard because it was an adult licensed activity.
H: The court held that a minor engaged in activities that are usually undertaken by adults should
be held to the same standard that is required of adults.
Different judges in different jurisdictions apply Daniels differently. Some say it’s a
licensing case, and some say it’s a dangerous activity case. Furthermore they apply it
to different activities (some many not necessarily be dangerous)
*Efficiency argument: A driver can’t see who is driving the other car and is expecting an adult
level of care, less accidents. Legislature made all traffic rules apply to all drivers. When
minors engaged in activities appropriate to their age and experience, then they are
entitled to be judged by the standards of their age and experience.
Rule of Law:
We ignore insanity - (standard rule in US just like we ignore stupidity)
Sudden insanity attack = just like a person suddenly having seizure or heart attack.
32
BUT it has to have been unknown to D before attack (just like an epileptic driving) if you know
you are prone to insanity attacks
RARE: rarity is no reason for overlooking their existence and the justification which is the basis
of the whole doctrine of liability for negligence i.e. to hold a man responsible for his conduct
which he is incapable of avoiding and which incapability was unknown to him prior to the
accident
The D did not know but should have known = not held liable
Once you identify that the D knows the risk and D may not still be liable
A reasonable person depending on risk and in a different scenario might handle it differently
Rule of Law: When creating a danger on a public thoroughfare, the one creating it must give
notice of its existence such that all who encounter it will be reasonably protected from injury.
Must take necessary precautions to avoid any foreseeable risk (even if the chances of it
happening are low – but the severity of injury is high this outweighs any burden you have to
prevent that risk/injury from occurring (WARNINGS MUST PROVIDE NOTICE TO THE ABLE-
BODIED AND DISABLED ALIKE – EVEN DRUNKS!)
33
balanced the risk and it is small. Someone comes along reading a newspaper and doesn’t see
the hole and he falls in.
D: I assumed people were acting reasonably
P: it’s foreseeable that careless people (acting unreasonably) are walking down the street
H: Reasonable person has to assume that other people are not going to be reasonable in
(foreseeable) ways. She should know that people are walking down street texting and reading.
Barricades HYPO #2
F: Owner (D) - puts down barricades - painted yellow - so everyone can see them - very
noticeable - puts across front and down side around hole. P comes along with kids and they
bump into barriers and they get moved a little (moved from where D put them)
Person with vision problem is walking down street and goes right in between space that the kids
made and falls (the woman with kids walks away so she cant be sued she's gone). Is D
negligent?
D: To be negligent risk must have been a risk that she knew. She blocked the hole to prevent
someone from falling in with barriers - she could not foresee that kids were going to move them.
P: Claimed negligence is now either that the barriers weren’t maintained, barriers weren’t
sufficient or that the barriers should have been attached in some way so they couldn’t be moved
(use something that couldn’t be moved) and should have foreseen they could be moved. D
should have known and forseen that SOMEHTING could have moved the barriers. D should have
secured them (chain them together) so they could not move apart.
H: Reasonable person should foresee that someone would bump into it and they could
be moved inadvertently (accidentally) (same holding as original hypo with blind person)
Don’t have to see the actual injury that occurred, just need to see the possibility of an injury of
that type occurring. Don’t need to foresee the specific risk, but just need to see that there is a
foreseeable RISK that inevitably exists. Don’t need to predict wholly unreasonable conduct of a
person, need to predict some erratic behavior (even smart people do stupid things).
Barricades HYPO #3
34
F: P has a drinking problem and she is with friends who drink a lot - are all walking down this
street loaded. They see the barrier up ahead and say "track meet" and use the barriers as
hurdles…injury occurs for obvious reasons.
P: you are negligent because I fell and of course going to SUE…
D: had barriers and they were chained together – what more do you want?
What should D have done according to P?
P: claims barriers should have been higher
D: I should not know or anticipate that people are going to "hurdle" them
H: Underlying issue dealing with negligence:
• What anticipation are you supposed to make about others?
• Should you assume they will act safely?
IT DEPENDS!
• DEPENDS on specific nature of conduct...
• You should have known?
• Was it a possibility?
• What should you have done differently?
• Whatever D didn't do is what they should have done (according to P)….and P claims that
they should have known
• How much UNSAFE conduct do we have to FORESEE? IT DEPENDS.
• Use chicken hawks If the probability of harm (foreseeability) is extremely low
but the severity is extremely high, it is likely to outweigh the burden.
• Not foreseeable - that someone would hurdle barrier.
• Is it an unforeseeable that someone would use as hurdle but is there
something else that would cause D to need a higher barrier?
• So think of something that could have happened depending on the height of
the hurdle - someone not paying attention and walked over it…drunks could have
been throwing up over barrier and leaned too far
• As long as you can find something that would have happened b/c of
low barrier other then the drunks hurdling it...
• THEN you can foresee that something else could have happened
• You can’t foresee hurdlers but you can see that someone could bump into
them and put them right over the hurdle - something you should have foreseen.
(even if it is low – the severity of someone falling in the hold is high and outweighs
the burden the D may suffer in money paying to secure the hurdles or make them
higher to prevent this risk.
35
build a better fence or repair the fence. Notion of “I don’t have enough money” isn’t a defense
because it’s not a true reflection of reality (Asking to be free to allocate the money as you
choose)
***There is no “reasonable poor person” just a reasonable person standard of care
36
F: Changes lanes, doesn’t slow down, knows the shoulder is very rocky. Sees that the plaintiff is
walking close to the shoulder (shoulder is full of holes). This time what happens, the plaintiff is
pushed in front of the car
P: Foreseeable that this type of incident could occur.
D: Changes help the defendant. It is less foreseeable that the plaintiff would be pushed as
opposed to tripping. Not within the foreseeable risk.
H: If the person tripped it would get to the jury. The significance of pushing him doesn’t change
too much, it doesn’t change the risk that the driver created as the driver changed lanes and
didn’t slow down. The question is whether the push is within the range of foreseeable injuries.
Intentional torts may help the defendant.
Side Note: Knowledge of risk, burden and probability of serious injury. Foreseeability:
Probability of injury and Burden. These facts make the injury more probable, Faster speed and
rough ground, makes them more likely to trip, puddles, so they are closer to the street, makes it
more foreseeable that that they can fall into the street. Facts relate to specific legal issues. If he
was in the right lane and did see someone that was virtually on the line and could see the
ground is uneven, you should reduce your speed.
Drunk Driving Cases D held to Reasonable sober person standard. Apply by saying not picking
a designated driver prior to going to the party is negligent act. Should have known u would get
drunk (Antecedent Negligence). Being drunk is no excuse - An intoxicated defendant will be
held to the standard of the reasonable sober person standard!
Medical Hypo Young person gets routine eye surgery. General anesthesiologist
present. Patient has heart attack. Anesthesiologist pounds on his chest to revive. Also, calls a
cardiologist. Takes cardio guy 6 minutes to get there. Child partially brain dead when he does
arrive. Cardio guy tells P to sue eye doctor
P: Eye Dr. is negligent b/c he knew there is a foreseeable risk with medical
procedure and should have 1. Had a chest surgeon present 2. Known the procedure
himself. B < PL b/c burden was low in having Dr. around since they are in a hospital
and PL is high with chance of death.
D: B is huge. Having a Dr. on immediate call is enormous expense. Also, small PL when there
is an EYE exam that a heart problem would arise.
37
F: Many drive on one part of the road. Dirt road in country with few houses. 2 cars hit. D is
being sued by passenger in front seat of his car.
Guest Statutes in Automobiles: Only in a FEW states: If a non-paying passenger in a
car is injured and sues the driver, the driver is not liable UNLESS he is Grossly
negligent, reckless.
Most States: Guest is owed a duty of ordinary care.
CT: Not liable here b/c action wasn’t gross etc.D has less of a duty to a passenger. Policy:
This prevents friends from faking accident to collect money from insurance
companies.
NEGLIGENCE - CUSTOM
It can be of great significance to P he shows consistent conduct of an entire industry that D did
not implement.
*OLD RULE: A business practice will not constitute negligence it if complies with the ordinary
standard in the industry; an employer is not required to keep a workplace safe from all harm.
(COMPLIANCE WITH INDUSTRY STANDARDS INDICATES AN ABSENCE OF NEGLGIENCE). (Titus)
Modern view – courts generally allow evidence as to custom for the purpose of showing
presence or absence of reasonable care. However, this evidence is generally not conclusive.
Evidence by D:
Evidence that conduct conforms to average conduct or custom within an industry does NOT, in
and of itself, mean that the conduct is not negligent. (AN ENTIRE INDUSTRY’S FAILURE TO
APPRECIATE AND GUARD AGAINST RISK DOES NOT NEGATE NEGLIGENCE).
(Mayhew – overturned Titus)
Evidence by P:
Proof offered by P that others in D’s industry followed a certain precaution that D did nto, will be
suggestive but not conclusive evidence that D is negligent.
38
Industry custom does not always establish reasonable prudence, when new technology or
methodologies are available and accessible. (A PRACTICE THAT IS NOT YET A CUSTOM MAY
DEFINE REASONABLENESS). (TJ Hooper)
If the company has a safety standard that is higher than the standard of care then the company
is held to that standard, not custom standard.
Custom is admissible for the jury to consider, when it is so obviously dangerous it will
not be a defense, but it’s up to the jury to decide, better to get to the jury than not at
all.
F: Railroad company, all the engines have whistles or horns. Buys the industry standard which is
a 92 decibel whistle. Has on all of her trains, this is the whistle that is sold for all of the trains
(all set the same across the country). It’s a dark and stormy night in the middle of winter and a
person is in his car. Volume on the car radio was high, if you were in the car next to him, you
might have found it loud, windows are closed and heat is on. Railroad track has a sign but does
not see it reasonable to have gates. The driver doesn’t see or hear anything and drives across
and gets hit, serious injuries. Was D negligent?
P: Sue’s the railroad company and says, insufficient safety measure (could say gates / lights /
etc. but not enough trains and cars to justify greater warning system, so this isn’t the issue).
The insufficient safety measure is that it’s not a loud enough whistle - should have been louder
D: It is loud enough and you can prove that because it’s the industry standard - custom is
industry standard and therefore custom shows reasonable conduct - MOTION TO DISMISS :
insufficient evidence that D was negligent in breaching duty
H: Custom – it’s the industry standard. The issue is that this is what everyone does. The burden
is too high to impose a different standard. And a reasonable person is judged by what he knew
or should have known and the defendant in this case had no reason to know that the whistle
wasn’t loud enough.
• Evidence that everyone does this strongly suggests that the individual person has no
reason to know nor should they know that there is something unreasonable about what
they did.
• Evidence that it is not unreasonably dan
• gerous, for everyone who had a responsibility picks 92, is some evidence that 92 is the
right amount.
• Furthermore the loudest whistle might be detrimental to some people, especially in a
residential neighborhood.
• Custom tells us something about the burden, maybe everyone’s whistle isn’t loud enough,
or maybe you need a 3 level whistle
Titus v. Bradford RR
F: Employee of RR killed because Broad gauge RR car was switched onto a narrow gauged track.
H: Overturns the old rule that no person should be held to a higher standard than the industry
standard (this would give a directed verdict). The new rule is that no one can be held liable if it
39
is in conformity with custom so long as it is a reasonable custom. Allows the introduction of a
reasonable custom.
TJ Hooper
F: Not all tugs are equipped with radios. This tug did not have a working radio when the accident
occurred. Most of the radios on tugs were provided by private people.
P: Should have had a radio – negligent.
D: Radios weren’t required, not everyone had one. Since not all tugs had radios, it was not a
custom. There was no industry standard.
H: Regardless of custom, D will be held liable if his actions fall beneath the standard of an
ordinary prudent man. B (radios) < PxL (danger of an accident without communication).
Custom is admissible for the jury to consider, when it is so obviously dangerous it will
not be a defense, but its up to the jury to decide, better to get to the jury than not at
all.
Modern View: Custom can be introduced as evidence in a case when issues of burden and
foreseeability are reasonably presented to the jury.
Assume Custom has been set: Can introduce custom as an element to show reasonable
behavior. If D performs higher than the customary level, that adds evidence of D acting
reasonable – there is a chance of Directed verdict. Hand’s opinion in Hooper is persuasive.
Custom is only evidence and not conclusive.
• Where D performs at industry level, & Ct. Believes act is negligent they will find it
unreasonable. Where D performs below custom, shows unreasonableness even if the
industry is performing at very high levels.
Medicine is specialized field and need specialized info to determine negligence. Std. becomes one
of a reasonable doctor. Std. of care for professionals becomes std. of care for the profession.
40
⇒ D’s have a higher degree of knowledge, skill or experience than the “reasonable person” –
so D must use that higher level
Std. Of Care for a Doctor: Would a reasonable doctor do what this doctor did? (Did the Dr. act
w/in the conformity of a reasonable Dr.?)
Custom in industry is standard of care
The custom is the duty (standard of care) - to provide reasonable medical care
**Distinction of Std.: Reasonable doctor is what an actual doctor would do, not what a jury
thinks a reasonable person w/ knowledge and experience of a doctor would do.
Only rational way to think of it is to compare to what other doctors would do
To prove professional malpractice, the plaintiff must produce expert testimony to the
standard of care except when the conduct didn’t required the specialized knowledge and training
of the professional
Standard of profession needs to be determined by a doctor (expert)
An expert in the field is a necessary ingredient in determining negligence.
D's professional negligence can ONLY be shown through an expert. Need medical
knowledge to figure out B < PL
*Exception to needing expert: If D's negligence is so blatant that a laymen can determine
negligence, no expert is needed.
Ex. Leaving sponges in patient.
*Even if a certain practice is a standard of certain communities, this does not mean it isn't
negligent. Specialists are judged by national standards and not the community standard.
Medical expert is needed to prove the standard of a doctor, standard is not set by the courts /
legislation.
Doctor performing a “non-specialized” activity (like removing sponges) are not held to a
reasonable doctor standard, they are held to a reasonable person standard.
Informed Consent
41
Reasonable person in the patient’s position wouldn’t have taken the treatment (NY & Canterbury
[D.C])
Need to see if a reasonable patient in the patient’s position wouldn’t have taken the treatment if
he knew the risks
Need to show that the patient wouldn’t have taken the treatment. (other jurisdictions)
Reasonable doctor standards to show what a reasonable doctor should have known
1. Common knowledge,
2. Emergency situation where patient is unconscious or incapable of consenting.
3. Patient can’t handle the information (heart condition or mental instability). Patient is
emotionally unstable & can hurt his well being not to perform operation.
The physician’s duty to disclose requires that he or she explain all of the potential risks of a
producer that a reasonably prudent patient would deem relevant in deciding whether or not to
consent to the procedure. (LACK OF INFORMED CONSENT CONSTITUTES MEDICAL
MALPRACTICE).
Colitheris Hypo
F: Patient felt very sick, in Springfield, Ohio. Went to the doctor who did a clinical check up. (No
blood, no urine tests, no x-rays). Along with the history, immediately realized that he had the
dread colitheris which is virtually 100% fatal if not treated in the first 48 hours. Patient has had
it for 38 hours, symptoms are similar to that of the flu. There is a test, but it takes 24 hours. Dr.
decides that has to give him the medication. The medication nearly kills him, leaves him brain
damaged, serious physical injury.
P: Sues because it turns out that he didn’t have colitheris. Doctor didn’t have to give me the
medication therefore she’s liable. Not informed consent, sue the doctor on the ground that she
was negligent because he didn’t have the disease. Sues for Medical Malpractice. Dr. violated
the std. of care of a reasonable Dr. b/c he gave her unnecessary medication--Harder to prove.
D: First, make a motion to dismiss for insufficient evidence, this time on a particular element,
the violation on a standard of care. Lack of evidence that the doctor breached his duty (didn’t
perform to the standard of care).
H:Motion to dismiss – insufficiency of evidence. P Must prove what the relevant standards
of care are. Need an expert to tell what the standard of treatment is, he doctor on trial must
have the characteristics of a reasonable doctor.
R: Professional malpractice can only be proved by medical experts – to provce the standard of a
doctor, standard is not set by the courts / legislation. If doctor gave treatment that conforms to
the medical standard of a reasonable doctor then he wasn’t negligent (didn’t violate the standard
of care), and could move for directed verdict because the patient did not present evidence to the
standard.
42
Lama v. Borras
F: Doctor didn’t order the standard bed rest prior to surgery. Patient had the surgery and had
several complications after. Also didn’t give antibiotics right away.
P: The defendant didn’t follow the standard of care and was a violation of duty and this omission
caused the injury.
D: Followed the standard of care, no violation of duty.
R: Plaintiff must demonstrate the following to show med mal:
1. the basic norms of knowledge and medical care applicable to general practitioners or
specialists
2. proof that the medical personnel failed to follow these basic norms in the treatment of the
patient
3. A causal relation between the act or omission of the physician and the injury suffered by the
patient. Plaintiff need to prove what the standard was, and that it was violated
H:P wins showed the standard of care and that it was violated.
Side Note: Interesting in the Lama case is that the most likely failure would be not giving the
defendant an antibiotic before the operation (now everyone knows you give the antibiotic).
Problem that 20 years ago that not giving the antibiotic an hour before an operation was
sufficient causation. Standard has changed now and the antibiotic is part of the standard of care.
Brune v. Belinkoff
H: overruled the locality rule. General standard is one of the average qualified doctor taking
into account advances in the profession. The doctor must exercise the degree of care and skill of
a reasonably competent practitioner in his field under similar circumstances.
Side Note: used to not be fair to hold to the same standard because small town doctors didn’t
know what was going on in the big cities because of slow communication. So the standard was
compared to a reasonable doctor in that area, and couldn’t bring in a bigwig doctor from
Chicago/Boston to testify, because they didn’t know the standard of the area.
43
Side Note: Same thing holds if a doctor is driving 95mph to get to the hospital, the court won’t
let the jury - judge if they are a doctor or not, they are judged to the standards of a reasonable
person driving in the highway.
Helling v. Carey
F: Doctor doesn’t give routine eye pressure test.
P: Doctor was negligent in not giving the test
D: the standard of the profession doesn’t require this test, followed custom
H: The burden of doing the test was less then the probability of injury times the severity. The
test is easy and the cost of not doing it is high. CT: B (simple test) < PL (saving injury). Tests
are easy and risk is high. D is negligent.
P wins, the burden of doing the test was too small to not do it.
Helling has been rejected by pretty much every state. Legislature / Courts cannot set
the standard of care for the medical profession, it must be set by the doctors.
Legislature overruled Helling: test price may be small, but adds up if done everywhere.
Other jurisdictions allow the plaintiff to get to the jury if he says he wouldn’t have taken it
(this isn’t the best policy because you depend on the credibility of the plaintiff). Also need to
know what the doctor would have told the patient if he had given him information about the
risks.
In NY and Canterbury (D.C.) the reasonable person in the patient’s position holds.
Duty is to act reasonably to protect the patient’s right to decide
**If we have a malpractice suit, why do we need a suit on informed consent? Because
you might lose the malpractice suit because the doctor was not necessarily negligent BUT there
was still a bad outcome.
Canterbury v. Spence
F-Dr. performed operation that hurt P’s spine. He didn’t disclose risk before operation.
P-Dr. did not reveal the risk of paralysis, makes out a Prima Facia case of violation of the
physician’s duty to disclose.
H: Dr.’s informed consent doesn’t have to be full disclosure, but enough to match
patients need to make a informed decision about the risks/benefits of having the operation.
Rule of Law: The physician’s duty to disclose requires that he or she explain all of the potential
risks of a producer that a reasonably prudent patient would deem relevant in deciding whether
44
or not to consent to the procedure. (LACK OF INFORMED CONSENT CONSTITUTES MEDICAL
MALPRACTICE).
Colitheris Hypo3
F: Clotheris is an old disease, a doctor has been doing research . The findings have just been
published that say there are 7 clinical factors. But there are two factors that are most critical;
Degree of discoloration in the iris. No one knew it was the degree of discoloration, just that it
was discoloration. Treating doctor hasn’t read the study yet.
H: Does the doctor have the duty to tell the patient about risks that she didn’t know. Now the
doctor is judged by what a reasonable doctor should have known in his position. If the doctor
should have read the study, then the situation would be different.
1. Reasonable doctor determines whether the actual doctor’s decision not to tell the patient
(because its common knowledge) was okay
2. Reasonable doctor only has to provide information that they think a reasonable patient
would not know
a. Competing interests, between the doctor who doesn’t think that they need to tell
anyone anything and the patient that thinks that they should know everything
b. Balance between these two people by creating reasonable entities
c. Don’t have to tell patients their choices (which vein to use) if they all have the
same risk
3. One more reasonable doctor knowing the condition of the patient, “can’t handle” the
information, if the reasonable doctor would have told the patient
a. Heart condition so sensitive that any anxiety will lead them to a heart attack
b. There’s the people that don’t want to know anything, Studies prove that these
people who go to the hospital and don’t want to know their risks, fair much better
4. Emergency situation where patient is unconscious or incapable of consenting.
Would a reasonable person violate the law? In certain (special) circumstances you might
violate law and be reasonable but violating a safety statute is never reasonable.
A reasonable person can violate a statute if it is not a safety statute - when it has nothing to do
with injury - it can’t be used in cases dealing with risks in injury
A criminal statute is good evidence of what the people/legislature in society think ought to be
rules governing their behavior. A violation of a statute may be negligence per se. It’s a Strict
45
Liability standard. Once you violate it, it’s Neg. PS. D cannot claim to the jury that their action
was reasonable.
Reasonable person would never violate safety statute so if facts show that D violated safety
statute then reasonable juror could never find that D did not act reasonably
Negligence per se: most courts apply the “negligence per se” doctrine: when a safety statute
has a sufficiently close application to the facts of the case at hand, an unexcused violation of
that statute by D is “negligence per se” and thus conclusively establishes that D was negligent.
Rule of law called negligence per se permits P to get a partial directed verdict.
Negligence per se you need 1. Violation of a valid statute; 2. Statute is a safety statute; 3.
person is in the class legislature intended to protect; 4. injured in a manner the legislature
foresaw and 5. No excuse for the violation.
A person found to have violated a statute that establishes a duty of care will be found to have
acted negligently, without other proof. (NEGLIGENCE PER SE)
Needs to be the injury that the statute intended to protect against (Gorris v. Scott).
Without specific evidence of legislative intent to provide a private cause of action for
violation of a statute, courts cannot infer one. (THE LEGISLATURE, NOT THE COURTS,
MUST PROVIDE FOR A PRIVATE CAUSE OF ACTION FOR STATUTORY VIOLATIONS).
Violation of the statute needs to be the cause of the injury (Martin – headlights in front)
46
Don’t need to hold to a safety statute if it puts you in harms way. (Telda – wrong side of road)
Most cases a criminal actor is an independent intervening cause, but if the action that you take
makes it easier to be stolen, then the thief could be a dependent intervening cause.
Driving without a license is prima facie in NY, sufficient to get to jury, not negligence per se.
Under the automobile guest statute – a minority of states still have this statute – generally
provide that an owner/driver is not liable for any injuries received by his non-paying passenger,
unless the driver was grossly negligent and reckless.
Dram shop liability varies by state; some states impose it on everyone who served a drink, even
the first bar. Some states only impose on bars who serve drunk people.
47
F: Plaintiff had shipped a number of sheep with the defendant ship-owner who failed to pen
them in accordance with the requirement of the Contagious Disease (Animals) Act of 1869.
Animals were washed overboard in a storm.
P: Negligence per se, he violated the safety statute and breaking the statue was the CIF of
sheep falling overboard. If D would have followed statute sheep would be fine.
D: The statute wasn’t to protect the sheep from washing overboard it was to protect from
disease. Legislature intended statute to reduce disease and it has nothing to do with sheep and
storms.
H: If the injury that occurs is not the injury that the statute intends to protect against,
the plaintiff cannot recover on a negligence per se basis on a violation of the statute.
D wins because the injury that occurred wasn’t the injury the statute intended to
protect against did not happen. Even though there was damage and bc of violation of
statute it was the cause of injury to sheep BUT
Side Note: Issue of PC -*Kessler: P wants to use this statute as an excuse. By P proving D
violated statute they can get to the jury. Can’t get to the jury without the statute because there
is no proof of a violation of a standard. There’s nothing inherently dangerous about having sheep
on ships without being in pens. Not negligent in regard to obligation to keep the ship safe. By
arguing that they violated statute then P does not have to prove negligence i.e. that D acted
unreasonably. BUT P can’t prove D acted unreasonably b/c ships have been doing this for
centuries (custom). So P can’t prove conduct was Neg. w/out Statute. = Free rider
problem – P trying to get undeserved benefit bc the D happened to violate statute (b/c when
legislature created stattue they were ONLY concerned about spread of disease and no sheep ship
safety)
Hobson Choice:
• This situation = Hobson choice
• CHOOSE between a broke down horse or walking
• Meant that you did not have any CHOICE
• Now it morphed a little and tends to be a choice between 2 BAD things.
• That’s what you have here.
R: D does not deserve our affection bc he still violated a statute. P does not deserve our
affection bc he is trying to jump on bandwagon of statute for damages unrelated…
No body deserves to win but system has to choose. SYSTEM has to go for system cost - less cost
-D wins
48
• If those interests get injured because they didn’t do anything different, they will be
held negligent
• This will result in a Windfall profit
Drunk watchmen Hypo dealing with statute says that a barge has to have someone on board
to watch over it - D hired a drunk he fell asleep and nobody was watching - nothing happened to
other boats but it did cause a flood - which did not damage most people's houses bc they had
flood protectors but one did not who was 1/4 mile away…Is D negligent? Person that is injured
has to be within the people that the statute was meant to protect
Martin v. Herzog
F: Plaintiff killed in a collision with a buggy, the buggy doesn’t have lights on the front of the
buggy per the statute.
P: Negligence per se, violation of the statute. (Contrib. per se)
D: Even if the statute was violated, the violation was not the cause of the injury because the
buggy was hit from behind and the lights are required in the front, so it wouldn’t have made a
difference.
H: The violation was not the cause of the injury, this is a jury question. (Grimstad with a
statutory violation). P’s violation of the statute – omission to perform a statutory duty could be
negligence per se BUT Neg PS does not make the D liable unless: P shows a causal link
between the negligence per se violation and resulting accident and the injury.
Ex. If D is speeding, Neg PS, but speeding wasn’t the cause of the injury. He will be liable, but
not Neg. PS. Statute must apply to the facts of the case.
Rule of Law You can violate a statute if it puts you in harms way
Telda v. Ellman
F: P walking on the wrong side of the road with her deaf brother. Statute says that you have to
walk on the other side of the road.
P: That they weren’t negligent, they had to walk on that side of the road.
D: Negligence per se, they were walking on the wrong side of the wrong in violation.
49
H: Court found that it was a safety statute and it would be absurd to hold them to the safety
statute even if it would mean that they would put themselves at a greater risk of harm.
Some excuses for violating the safety statute; Not liable because you have a reason that the law
recognizes as valid; Excuse and Justification (self-defense) are defenses; Having a good reason
for violating isn’t enough
Law in NY now:
• Violating licensing statutes in New York is prima facie negligence
• Prima facie negligence gets to the jury
• Sufficient evidence to get to the jury
• Enough to overcome a directed verdict motion
• Summers v. Tice
• This is similar to Summers v. Tice
• Switches the pragmatic evidence of proof to Brian (the defendant)
• Originally thought to be negligence per se (which means that there’s no evidence for the
jury, takes away from the jury, partial directed verdict on whether the issue of negligence
reaches the jury. The jury will still have to decide cause and injury) and now it’s a prima
facie (means that it gets to the jury)
50
Need to show causal connection between the negligence per se and the accident and
the injury
1. For negligence per se to apply : Yes I was speeding - or yes I did not have
license but this did not cause accident - or cause injury…
Klein v. Raysinger
H: There was no common liability on the part of a social host who served alcoholic beverages to
adults who later injured persons on the highway
Law in NY
• No Social Host
• Don’t know whether NY state applies the duty of protecting those on the road from drunks
to social hosts or limits it to professional sellers
• As of about 3 years ago didn’t apply to social hosts or open bars
Law in NJ
• There is liability on the Social Host
Dram Shop Laws: Look at it in retrospect. Bar owner may not be able to tell if he is visibly
drunk, if he will be driving, if they will get alcohol from another bar— but still liable. So Bar’s
get insurance.
Employer: If u have open bar, not liable in NY, yes in NJ. Less control over someone w/ open
bar.
Homeowner: Person comes to house and gets drunk. Not liable in NY, yes in NJ.
51
Notes on Social Host
• Bartender can cut you off, but can’t stop you from driving
• Lots of people with .08, .10 don’t look drunk at all
• Issue of equity toward bar / bartenders is solved by the fact they all have insurance
Vesely v. Sager: D owned tavern. Sold alcohol to co-D. He left bar, was in a car accident w/ P.
Dram Shop Laws Statute: Anyone who sells alcohol to an obviously intoxicated person is
guilty.
P- D has a duty of care to P or class of persons if which he is a member. Also, Neg PS
D-Bar owner didn't do anything to P. No duty. Didn't drive car, wasn't drinking. The driver was
an independent (not under control of bar when in the car), intervening (act came after bar) Act.
R-P is within class that statute is trying to protect, injuries were ones the statute tried to
prevent. D violated statute which is the proximate cause to P's injuries, so D was neg. in serving
alcohol to P. Not to mention the driver is liable also since intoxication is not an excuse and he is
held to the reasonable sober person standard. The driver should have arranged for someone
else to drive when he was sober (antecedent crap again).
Superfreak drunk hypo Went to a bar and had 2 drinks in 1 hour. Then went to a house party
and had more. Then a final nightcap at Rocco’s bar. Then in an accident.
Ct: In NY, can’t sue the homeowner and bar owner will blame the house party. Rocco’s bar will
claim he was not obviously drunk when serving him, a defense under the statute.
52
D: Says that its not foreseeable.
H: A reasonable person in the position of the defendant would know that the burden of doing
something differently (taking the keys out of the car) would be less than the risk of injury. A
reasonable person would have known that it was foreseeable that the car would be stolen by
someone too young to drive.
If it is foreseeable that the car could be stolen and you make it easier, then the thief is
a dependant intervening cause. Most cases a criminal actor is an independent
intervening cause
NY is the only state in the country where the car owner is responsible for the negligent driver of
the car where it is leased
Rule of Law:
Without specific evidence of legislative intent to provide a private cause of action for violation of
a statute, courts cannot infer one. (THE LEGISLATURE, NOT THE COURTS, MUST PROVIDE FOR
A PRIVATE CAUSE OF ACTION FOR STATUTORY VIOLATIONS).
Our legal system divides the responsibility for deciding questions of fact between
judge and jury
1. A divided system necessarily precludes the possibility that either judge or jury
takes complete control over the individual case unless both parties to the dispute waive a
jury trial
i. The division of the responsibility is not arbitrary
2. Total delegation of responsibility has been rejected for two reasons.
53
i. First: Judges fear that the jury might abuse its unlimited power by deciding
cases contrary to established principles of law
ii. Second: Judges believe that unlimited jury discretion repudiates or at least
undermines the central principle of distributive justice - that like cases should be
treated alike, no matter what substantive principles apply
Judicial Control:
• Defined: What is the proper balance between judge and jury in deciding cases.
• Judge: Judges decides law – and whether a reasonable people can differ as to
what the facts of the case are – if they could not then he dismisses the case or grants
a DV when facts are so 1 sided that "no reasonable men could differ". Judge must decide
if any facts have been established from which Negligence may be inferred.--> If yes,
goes to jury.
• Jury: Determine facts about which reasonable men can differ. They decide if 1.What
really happened (credibility of witness) and 2. Did D breach his duty of care in a way that
caused P's injury?
Judges should only make rules when they have a lot of experience. Restatement §8 says that it’s
dicey for judges to make rules.
Role of jury is to look at the facts and decide if the defendant violated the standard.
Benefit of Fact specific rule: Provides consistency in making sure certain types of cases are
decided in certain ways. Easier for directed verdict for the D. Right rule for the act.
Ex. Usually for DV— Can RP differ, on preponderance of the evidence, that D was negligent?
With ct’s FSR —Did the P SLL before crossing the RR tracks and Can RP differ if person
SLL?
54
F: P is driving his car, he stops suddenly. After he stops D smashes into him. P sues D.
P: Doesn’t want the case to get to the jury, wants the judge to say that if you hit someone in
the rear that it’s your fault you are negligent (specific standard of care)
D: Says that its not negligence per se and it’s a question for the jury if you are on a highway
and keeping up with traffic, it is the reasonable thing to do (65 in a 55)
P: (Doesn’t want a jury b/c it will most likely sympathize with ∆ because everyone drives over
the speed limit) use B&O (stop, look & listen)- should have a specialized standard of care You
should not hit another car in the rear – there is no issue of fact here except if it caused injury…
should we keep the jury involved?
H: Judges can take the case from the jury if they find that the defendant violated a specific
standard of conduct. This is done because juries can be inconsistent and irrational. Irrational
jury decisions can be avoided by creating a standard.
A standard that conforms with our general experience
• i.e. if you hit someone in the rear, you are liable and the defendant should be
found negligent
• standard is keep far enough back (NOT to keep a reasonable distance)
Judge will decide whether the Defendant is negligent.
P will win if no reasonable jury could disagree that the defendant was negligent. [This is like
Grimstad, but Grimstad dismissed the case for insufficient evidence. Grimstad could be looked at
the other way around, that there was so much evidence that it had to be dismissed]
If the standard is to keep a reasonable distance then this would be a question for the
jury. If the duty is to keep far enough behind so that you can stop then this would
make it easy for the judge to find negligence and a violation of duty and take it from
the jury.
Toschi v. Christian "stop look and listen" rule (Baltimore & RR v. Goodman) - urged by Ds will
not be applied to factual bases where its application would be unreasonable
Pakora is followed in the Third Restatement: which rejects the idea that uniform rules can
decide concrete cases:
o What looks at first to be a constant or recurring issue of conduct is which many parties
engage may reveal on closer inspection many variables that can best be considered on a
case by case basis (RTT:LPH 8, comment c)
55
D: says that it wasn’t ultra-hazardous
H: Court said that since the crossing had no physical obstruction that prevented sight or sound,
it was not extra-hazardous. Whether the whistle should have been blown was a question for the
jury. Trial court gave a directed verdict about the lack of evidence for an extra-hazardous
crossing and the jury verdict for CSX were affirmed.
Only ultra-hazardous activities railroad crossings need to have lights, whistles, etc.
o Can create stupid rules, but you can also create good rules, if they are applied
correctly
• Courts are hesitant to apply them
The Restatement §8: Says that it is dicey for the courts to make rules and should only be
done on a case by case basis and the court should be cautious when they use them.
o Can think of situations in the rear ending case that the defendant shouldn’t be
responsible
• For instance if the breaks fail
56
Jury Determination in FELA cases:
i. Juries are given broad discretion in suits for industrial accidents brought under the Federal
Employers' Liability Act (FELA)
1. FELA makes every interstate railroad liable in damages for injuries to its employees
cause by the negligence of the RR though any of its officers, agents, or employees "
a. "or by reason of any defect or insufficiency" in any of it premises or
equipment.
Wilkerson v. McCarthy P slipped on board into pit while working. FELA doesn’t allow
Contrib. Neg.
I-Without Contrib., was the RR negligent or did they put up enough signs?
R-Question goes to the jury. Many arguments on each side about if the signs were
enough. Since there is evidence D may be negligent, no DV allowed, reasonable people
could differ since RR knew people didn’t pay attention to the signs and walked there
anyway. D was aware of unsafe area.
Contrib not a defense – FELA – eliminated assumption of risk in all its forms and provided
that contrib. neg should not bar an employee’s action…
The doctrine of res ipsa loquitur – allows P to point to the fact of the accident, and to
creat an inference that, even without a precise showing of how D behaved, D was
probably negligent.
Three requirements to prove: (to get to jury) – no direct evidence of D’s conduct – how D
behaved in connection with the event
57
3. Thing that caused the injury must be caused by an agency or instrumentality within the
exclusive control of the defendant (Indicated negligence was within the scope of the
defendant’s duty)
⇒ Exclusive custody and control of item
By proving A (specifics of what happened ) you are proving B (proving that D must have done
something that caused injury and what he did must have been negligent)
Allows you to avoid proving exactly what the defendant did wrong, but is enough to
prove that he must have done something wrong (negligent)
That the burden of doing something different would have been less than the probability of
injury!
58
To use res ipsa: 1. Event does not ordinarily occur without negligence.
2. other responsible causes, including the conduct of the plaintiff and third person are sufficiently
eliminated 3. Thing that caused the injury was in the exclusive control of the defendant
(Indicated negligence was within the scope of the defendant’s duty)
Res ipsa gets you to the jury not a directed verdict, plaintiff can now win on inference because
the jury is allowed to infer negligence.
No duty to inspect when you have reasonable expectation that it will be safe. (chair and coke
bottle)
**Res ipsa doesn’t apply when you have no notice that it could happen, then you have no duty.
The injury must be foreseeable for res ipsa to apply (Larson & Connelly – the two chair
thrown out window cases)
**Res ipsa applies when you have notice of an event that could get out of control because you
can do something about it, have a duty to prevent it.
Bryne v. Boadle
F: P was walking along street passing D’s shop when a barrel falls out of a window and hits the
plaintiff injuring her, plaintiff doesn’t know how it fell.
P: Doesn’t know how it hit her but says D is vicariously liable for employees and alleges res ipsa.
D: Not responsible and didn’t do anything negligent. Could have been someone else – no proof it
was one of my employees.
59
H: P wins on RIL – it is circumstantial proof of negligence – but circumstances lead to the
inference. Court ruled that the barrel was in the custody of the defendant, they were
responsible for it and where the P cannot prove anything, it is up to the D to prove
that they weren’t negligent.
⇒ Res ipsa gets it to the jury, 1. the barrel could have been pushed, dropped on purpose,
stacked improperly, etc. (had to be the negligence of the D, couldn’t have happened
without negligence), 2. It was in the exclusive control of D and 3. The Plaintiff didn’t
contribute, didn’t do anything to make the barrel fall.
Res ipsa gets to the jury. The barrel wouldn’t have fallen without negligence, it was in
the exclusive control of the defendant and the plaintiff didn’t contribute.
Rule: For possession, do not mean custody and control. D’s still have constructive, custody and
control over the internal parts you cannot see. Not immediate control over the object.
In Coke: Call customs witness to explain bottle thing and could only happen due to that custom.
Larson v. St. Francis Hotel, 188 P.2d 513, 515 (Cal. App. 1948)
F: Chairs being thrown out of the window in a celebration at a hotel, the plaintiff gets hit with
the chair.
P: Negligence in not supervising what guests do with the furniture. Says they have a duty and if
they aren’t doing their duty if the chair comes out the window. Management allowed the party to
continue even after they knew what was going on – they had ample notice of the antics - they
had a duty to take a reasonable standard of care – RIL because they had a duty to control the
60
party in the hotel, and they did nothing…the chair coming out the window was a result of the
management doing nothing RIL.
D: Says they had no notice, it was a surprise. It wouldn’t have made any difference if the ∆ did
use reasonable care because some events happen anyway
H: NO RIL! Res ipsa doesn’t apply because they had no notice b/c chair flew out during surprise
celebration. Not in the “ordinary course of events”, guests have partial control. B is too
high to put guard at every window!
***Res ipsa dosen’t apply when you have no notice that it could happen, then you
have no duty.
Cannot use res ipsa on multiple defendants, you need to have the defendants turn on each other
because you can’t prove exclusive control (wooden shoe sign hypo)
61
Additional: On non-delegable duty could go either way. Delegable because it’s not a issue of
public safety, doesn’t have a large potential for danger. Or could say that it’s non-delegable
because it’s for the public.
Also res ipsa with alternative liability doesn’t apply because none of the defendants stopped
him from seeing what happened or caused him to go under the sign.
To have non-delegable duty you need: 1. Sufficiently dangerous; 2. exclusive control; 3. They
know it’s dangerous. (Colmenares – escalator)
• Applies when court decides that sufficient danger to justify it’s application
• Conduct / instrumentality is in exclusive control, and try to avoid negligence responsibility
by saying you relied on someone else
• Notice situation, since they know it’s this dangerous, it’s not unfair to make them
financially responsible
• Perfect example of non-delegable duty is when you have an elevator that goes 20 floors,
you cannot delegate the responsibility to maintain the elevator to someone else
62
Colmenares Vivas v. Sun Alliance Insurance Co.--Application of RIL
F-P riding escalator in airport when handrail stopped moving while foot platform continued to
move. P tumbled down steps and was injured. Port Authority and their Insurance Co. were D’s.
D tried to sue Westinghouse who was contracted w/ Port Authority to maintain the escalators.
P – Res Ipsa – but for the failure to maintain the escalator properly I suffered injuries.
Element 1: Injury is ordinarily the result of negligence
a) Handrail on escalator would not stop working w/o negligence.
b) Hint: When there is a mechanical problem, makes a prima facie case for
negligence
Element 2: Exclusive control
a) Maintaining escalators in a public area is a non delegable duty: 2 possible situations.
Doctrine of non delegable duty, expanded version of D
1) Where there is a public authority maintaining a public area
2) Business invitees: the owner of the premises is responsible, and not the
individual person who made the mistake.
D claims & loses: We are responsible to take reasonable precautions to make sure escalator is
safe. It would be negligent for us to do this our-self, so we hire someone who takes on this
responsibility. We did everything we should have.
H: The maintenance cannot be delegated. Maintenance of an escalator is a non-delegable duty.
63
doesn’t know all the distribution processes, it just know this is coke. Just like public
knows this is the port authority; it doesn’t know who maintains the escalators.
Accessibility of Information
⇒ First associate the bottler w/ Coke through the doctrine of non-delegable
duty and then argue that this expanded version of the D would have better access to what
went on in the bottling and transportation operations than would the waitress. This
disparity is enough B/c it’s similar to Ybarro where the doctor’s knew who performed the
negligent act. Here, by holding Coke responsible, it may help in finding who is specifically
responsible for the negligent act.
⇒ Furthermore, in this case, the waitress doesn’t know who performed the negligent act.
She’s like the unconscious P in Ybarro b/c it is impossible for her to know who caused the
act b/c she is a laywoman and does not know the coke process. Coke has the
information, as the doctors had the info to know who committed the negligent act. So
since D and not P had access to this information, RIL should apply.
Defense: BPL- Coke can argue that the probability of this occurring is so low that the burden to
redesign a bottle or manufacturing process would be too great. So they are not negligent.
P – rebuttal - But P would come back and say a warning label would cost very little, low B. So
D is negligent, and did not act reasonably for not putting on a warning label.
1. Not reasonably foreseeable consequence of the surgery; 2. Don’t know how the injury
occurred (unconscious); 3. Plaintiff wasn’t contrib. 4. Simultaneous conduct.
Someone must be found liable and if no one is liable it’s the captain of the ship (head surgeon).
Hospital Hypo:
F: Patient being operated on by a surgeon. During the surgery, the patient has substantial
bleeding. They stop the bleeding, but because of the loss of blood he becomes anemic and that
leads to further problems and eventually he’s dead.
P: Says Res ipsa (needs to know if he did anything wrong, if bleeding usually occurs, etc. first)
D: Didn’t do anything wrong
H: Not res ipsa because it has to be in the part of the body not involved in surgery.
To use res ipsa in a medical situation must have an injury that isn’t in the foreseeable
risk of the surgery, and must be on a body part not involved in the surgery. Non-
foreseeable, and don’t know who did it.
64
H: Not fair to the plaintiff because he’ll never be able to recover because he was unconscious.
Not fair because he can’t prove it (like Summers v. Tice, but not causation, on negligence
instead)
• 1. If anyone knows who did it, they know
• 2. Their conduct was done simultaneously
• 3. The injured shouldn’t be denied relief
In surgery cases Res ipsa applies and the burden is switched, the defendants can prove
themselves out and if the jury can’t figure it out then it’s the surgeon (because he’s the captain
of the ship). Chief surgeon is in charge of operation and others can be sued under
RIL. Med. personnel have better access to evidence and information than the patient,
and if they remain silent, RIL smokes out the evidence.
⇒ Use Summers v. Tice to switch the burden to D. But someone has to be responsible for all
of them - can’t prove themselves out. (Combination of res ipsa and alternative liability).
Defendant’s conduct stopped plaintiff from getting the information he needed.
⇒ Use RIL to prove negligence-->P was unconscious; injury to unrelated part of body,
injury isn’t ordinary unrelated side effect. NOW, who did it? With 4 D’s burden on them
to show it wasn’t them. Doctrine of respondent superior so that SOMEONE is held liable if
the jury believes all Ds –the person in charge is held responsible.
⇒ **Special Rule: Key fact is Unconsciousness and it’s not a known risk. And it is a
policy that the ∆s are in a better position to know. Heightened duty b/c of
helplessness.
R-It is unreasonable to insist that P, who was unconscious, could identify negligent D.
Concert theory: Unit of doctors & nurses had exclusive control over the situation.
Combine res ipsa with non-delegable duty and alternative liability. Defendants can’t
say not me, it was someone else because its non-delegable (reasonable conduct
doesn’t count)
All the parties might not be named, didn’t name every doctor that could have used it (like in
DES when didn’t get all defendants, its alternative liability/burden switching).
65
Res ipsa, non delegable duty and alternative liability
• Doctor’s can’t delegate the duty of prior surgeons
• The manufacturer can’t delegate the duty of making non breakable instruments
• Non delegable duty is a kind of res ipsa, but not the standard ipsa
The legal structure has generally accepted Ybarra in many jurisdictions, but have been
extremely hesitant to apply it to anything but a person who is unconscious under
anesthesia : Almost a medical malpractice Rule
1.Contributory Negligence- any amount of fault on part of P that causes the P’s own injury
will cut off his right to recover against the D.
2.Comparative Negligence- recovery for the P is equal to the amount of damages he suffers
minus those damages attributable to him or in essence the amount of his fault causing the
relationship. Here the P will recover the percentage to which he did not contribute.
3.Assumption of Risk- P recovery is cut off entirely if he voluntarily encountered a known risk.
66
In jurisdictions that have contributory negligence if the plaintiff is one 1% contributory negligent
then they cannot collect.
Court held that contributory negligence is not necessarily a complete bar to recovery
when the negligence of the defendant is what caused the injury. Plaintiff was not the
proximate cause. So P has to be PC of injuries to be Contrib.
Contributory Negligence :
• To change the natural order of things someone had to act morally wrong (criminal,
intentional, negligent) but can’t help someone else who has also acted wrong (they don’t
have clean hands)
• Individualist values, things are supposed to happen (Devine/God/etc.)
• Complete defense at common law (if the plaintiff was contributory negligent, couldn’t
collect anything)
• This changed over times for two reasons:
1. Insurance (not taking from the person, taking from a company and everyone
pays) and
2. Some people were only slightly negligent while the defendant was super
negligent and the plaintiff couldn’t collect at all.
• Has a deterrent aspect, encourages people to mitigate their risks and to act responsibly so
they won’t be contributory negligent.
• Began to lose favor because someone who did something minor (like jaywalking) couldn’t
recover if hit by a car because of contributorily negligent.
• Now, contributory negligence defense only applies where P’s negligence contributes
to the PC of his injuries. If P’s negligence is not a BUT FOR cause of his subsequent
injuries then he is not contributory negligent.
• The universal modern rule is that the defendant bears the burden of proof on the
issues of contributory negligence and its causal relationship to plaintiff’s harm.
• New York does not completely bar plaintiff’s recovery for contributory negligence.
Claims against which contrib. defense not usable: Since the contrib. negligence defense is
based on general negligence principles, it may be used as a bar only to a claim that is itself
based on negligence!
⇒ Intentional torts – defense not applicable if Ps claim is an intentional tort.
⇒ Willful and wanton – Ds conduct is found to have been willfull and wanton or reckless
the contrib. neg. defense will not be allowed. (but if Ds negligence is merely “gross” –
contributory negligence usually will be allowed) - the idea is that the defense does not
apply where D disregards a conscious risk.
⇒ Negligence per se when P is protected class – contrib. neg. can usually be asserted
as a defense even to Ds negligence per se i.e. his negligence based on a statutory
violation – but if the statute was enacted for the purpose of protecting a class of which P
is a member, contrib. may not be asserted as a defense)
Karate jump hypo L jumps at car coming at her. She thinks that the only way to avoid it
hitting her is by doing this. Car was driving fast & close, but if she didn’t jump, it wouldn’t have
hit her. 2 CIF: L jumping up and the D driving dangerously. *Misconduct by both, same nature,
acted unreasonably, leading to injury.
67
Common Law Rule: Bars a right to recover for P. CN was an absolute Defense. If the P acted
in a negligent manner as well, aka jumping at the car she will get nothing regardless if D was
speeding. Come to court with clean hands!
If both hurt, whoever was hurt the most will be the one suing. Whoever sues first is the plaintiff
– then there will usually be counter claims, etc. With CN< both will pay for their own injuries.
This is a Deterrent factor b/c if P won, deterrence from acting negligently.
Stair Hypo: Dangerous stairway that you shouldn’t be walking on, building collapses and causes
injury – not contrib. because the contrib. negligence was not the cause in fact of the injury
Common law: B was less negligent, but still neg, so you get nothing. Then it changed.
Negligence Per Se: If A breaks a safety statute, B’s CN isn’t a defense and A is liable.
Leroy Fibre Co. v. Chicago, Milawaukee & St. Paul Railway -(RR cause flax to burn)
F-P stored flax on his property about 70 ft from RR’s right of way. D, RR, had negligently
operated RR by allowing it to emit large quantities of sparks, causing P’s stack of flax to be
destroyed.
D- Defendant says they aren’t liable because the plaintiff acted unreasonably and took an
unreasonable risk by stacking the flax near the tracks. Says they have an easement. Says that
Plaintiff is contrib. because they know how the property will be used and that trains admit
sparks.
P-It’s my land, I can use it as I like. D doesn’t have an easement (public use) to the land.
R-P need not exercise reasonable care to protect against risks from wrongful operation of
another’s use of their property. This is not contributory negligence.
H- The defendant was negligent in the operation of the train. Railroad says that the plaintiff was
contributorily negligent by stacking them too close. Court says, no, that the property right
dominates. Says that the plaintiff is allowed to create the risk (simply because it’s their
property). Railroad can’t use the property to deposit sparks, they will either have to buy the
land, or an easement or make private arrangements. Property interest trumps foreseeable
risk when talking about contrib. The court ruled that negligence is a matter of degree and
that matters of degree are for the jury. Contributory negligence cannot arise because the
plaintiff has done nothing to invade physically the railroad’s right of way.
**Dissent: But the property owner was creating a foreseeable unreasonable risk of injury – he
knew these sparks always came onto the property…it’s almost as though he was looking to burn
them up so he could sue.
Driveway HYPO: Two houses close to each other, driveways only a few feet apart…the
driveways share a dip at the end of the driveway w/ a strip in the middle. Person A sometimes
drives across the strip dividing the two driveways at the end. Person B is not happy about this.
Person B buys a statue at a garage sale and puts it at the strip at the end of the driveway.
Person A does what she always does and hits it and ruins it. When person B has it removed, she
finds out it’s worth a lot of money, so she sues.
P – She was contrib. negligent because she knew that I had a tendency to drive there, but she
put it there anyway.
D - Use the rule from Leroy – I shouldn’t have to take care to protect the wrongful use of my
property
Rule of Law: Last Clear Chance Doctrine – acts as a limit on the contrib. neg. defense:
68
Person who has the last clear chance to avoid the peril has the duty to avoid the harm,
eliminates the contrib. defense (of the jay walker).
Last clear chance doctrine: permits P to win even though he concedes that he was
contributorily negligent. The doctrine that a plaintiff who committed contributory acts of
negligence may nonetheless recover damages against a defendant who had the last opportunity
in time to avoid the damage and prevent the harm (and P did not have such an opportunity) –
the opportunity (this last clear chance) wipes out the effect of Ps contributory negligence. . Very
limited applicability in most states.
Plaintiff can prove that a point in time occurred, and at that point in time the Defendant became
aware of the fact that the Plaintiff was negligent and had the capacity to avoid the accident but
didn't. By becoming aware of negligent conduct of plaintiff - being aware of the peril - and then
doing nothing about it is called violating the "last clear chance".
*Courts are split about last clear chance – especially when it comes to a comparative negligence
jurisdiction.
Texting HYPO: Text sees that speeder is coming so fast that there is no way the speeder can
stop and then that person goes back to texting. By texting he is negligent. The speeder by
speeding is negligent. BUT defendant texter at a point in time became aware of the speeder
(aware of peril) and then negligently fails to avoid the accident.
Kid running in street HYPO: Kid runs into street looking the other way - car comes around a
turn and decides to swerve but hits the kid. Both negligent. Kid running in street and looking
the other way and speeder coming around the turn. Speeder is negligent and kid is contrib. BUT
because the speeder had the chance to avoid it (aware of peril) but didn't he had the "last clear
chance".
Last Clear Chance Driving Hypo 1
F: Plaintiff is jaywalking, Driver (defendant) swerves to avoid the plaintiff
H: Last clear chance applies because the driver had the last chance to avoid the accident
69
**Seat belt defense is increasingly accepted in comparative negligence jurisdictions. In this
defense, D argues that Ps injuries from a car accident could have been reduced or entirely
avoided had P worn a seat belt.; Ps damages should therefore be reduced.
⇒ Contrib. Jurisdiction – In most contributory negligence jurisdictions courts REFUSE to
allow the seat belt defense at all. That is, Ps failure to wear a seat belt does not count
against his recovery in most courts.
⇒ Comparative negligence jurisdiction – But in states that have comparative negligence,
the seat belt defense is more successful. There are various approaches but it ends up
beign that D is only liable for the injuries that would have occurred if P wore the seatbelt –
equal to the % of Ps fault – so D is liable for all injuries – but P’s fault reduces his
recovery for the injuries he could have avoided.
o Effect is that 32 states have mandatory seat belt laws. But a majority either
prohibit seat belt defense or allow only a small reduction of damages.
Seat Belt Cases: States pass a law making it mandatory to drive with a seatbelt on.
P is driving without a seatbelt, but isn’t doing anything else wrong. D is driving drunk and drives
to the other side of the road and hits P.
P- clearly claims negligence
D- P violated the statute, CN per se. I shouldn’t have to pay.
P- Not fair to call me Neg PS. That encourages D to speed. Not fair to impose sanction on me
when it was D’s actions that were unreasonable (Leroy Fibre)
Collateral Benefits Rule: D shouldn’t benefit b/c he was lucky that P didn’t have seat belt on.
Cts: View this issue differently. It is a pure question of policy as to how the legislation will look
at this. Washington: P aren’t required to buy insurance as a precaution in case of a negligent D.
Fact that P wasn’t wearing a seatbelt isn’t even mentioned at trial.
NY- CN is a defense to damages. D must demonstrate the connection b/t the P’s non-use of an
available seat belt and the injuries and damages sustained. Jury can hear expert testimony on
belts.
Derheim v. N. Fiorito Co
F: Plaintiff sues defendant after a car accident where defendant made an illegal left turn. Plaintiff
wasn’t wearing a seat belt.
P: Says illegal left turn, negligence caused the injury
D: Says Contrib. wasn’t wearing a seatbelt.
H: Contributory negligence doesn’t apply in this case because there is no statutory requirement
to wear a seat belt.
70
Assumption of Risk: A P is said to have assumed the risk of certain harm if she has voluntarily
consented to take her chances that harm will occur. Where such an assumption is shown, the P
is, at common law barred from recovery.
To have assumption of the risk you must 1. have knowledge of the risk; 2. Voluntarily consent to
bear the risk; 3. Didn’t have to partake in the dangerous activity.
Primary Assumption of the Risk, complete defense (says defendant isn’t negligent or doesn’t
have a duty, was just an accident).
Assumption of Risk:
• Elements:
1. Have knowledge of the risk
• Can be implied when the risks are one that the average person would
clearly appreciate (i.e. being hit by a foul ball at a b-ball game)
• express assumption – explicitly agrees with D in advance of any
harm, that P will not hold D liable for certain harm – expressly agrees.
• Implied assumption of risk – even if P never makes an actual
agreement with D whereby P assumes the risk, P may be held to have assumed
certain risks by her conduct.
• There must be an alternative in face of the risk
Primary assumption: implied assumption of risk – Its an alternative expression for the
proposition that the defendant was not negligent, that the defendant did not breach the duty or
had no duty
D is never under any duty to P at all (ex: foul balls at a baseball game - Defendant didn’t do
anything wrong, just an accident.)
71
1. I'm not negligent (primary): not negligent at all; P loses bc D was not negligent
2. You're contrib. (secondary): balance negligence of P and D
• Said to assume the risk if you voluntarily consent to take chances that harm will
occur. When assumption is shown, at common law P is barred from recovery.
**NJ Says that you can’t use assumption of the risk because it’s not fair (especially when
unreasonably dangerous)
Presumption of Risk:
• Negligence allocates responsibility for certain kinds of risk taking activities
• We live near airports and if a motor falls off a plane we still chose where to
live and assumed the risk
• Doesn’t look at reasonable conduct, looks at calculated risk taking.
• Typical example is flying an ultra-light (hang glider with a motor) which is
really dangerous. By flying it you are assuming the risk, so you can’t recover.
• This is different than contrib. and once was a 100% defense
• Must show that the plaintiff knew the risk and did the action anyways
• Works differently than contrib. but comes to the same result that it’s a 100%
defense
Murphy v. Steeplechase Amusement Co. – (Plaintiff and wife stepped onto The Flopper, fell
and was injured.)
P: alleged that the belt was out of order and caused a sudden jerk.
H:The point of the ride was to step on and stand until you fell. He stepped on while it was
already in motion; this was the very hazard that was invited and foreseen. Judgment for
the plaintiff reversed and remanded.
72
The courts are split on this, some say this isn’t the area where you assume the risk
(you are no longer in the stands) and some say you are in the stadium and you assume
the risk.
Fireworks Hypo
F: Set of fireworks. One of the people that was supposed to set them gets drunk and puts it in
sideways. Plaintiff is over the rope and gets hit in the side of the head.
P: Defendant is negligent in letting drunk people set off fireworks
D: Says that plaintiff was contrib. in getting over the barrier. They assumed the risk
Court (not NJ) holds that the plaintiff assumed the risk (contrib.) by going over the
barrier and putting himself in harms way of the fireworks.
73
Fireman’s rule:
• Firemen are paid to do something dangerous and therefore can’t collect when someone
negligently starts a fire (creates the risk).
• The presumption is you get paid more than someone in a less dangerous job.
Comparative Negligence – rejects all or nothing system. Instead of contributory neg being an
absolute defense, comparative neg. makes contrib. a partial defense. Jury compares amount of
negligence of P to that of D. Attempts to divide liability between P and D in proportion to their
relative degrees of fault. P is not barred by his recovery by his contrib. neg. BUT his recovery is
reduced by a proportion equal to the ratio between his own negligence and the total negligence
contributing to the accident. (46 states have adopted some form of comparative negligence)
Comparative Negligence
Doesn’t bar the action, just reduces the amount of that you can collect.
Pure Comparative negligence – (only 13 states) Subtract the amount that you are contrib.
from the damages (if you are 10% contrib. you can collect 90%), NY law
50% systems - Modified Comparative negligence – if you are 50% or more contrib. then
you are barred from collecting any damages.
In NY not wearing a seatbelt is not a contrib. defense for liability, but it can be used to mitigate
damages.
Fireman’s rule is that they are paid to do something dangerous and cannot collect when
someone negligently starts a fire (creates the risk).
NY there is a big exception to the fireman’s rule and the firemen can sue if they are injured by a
fire that is started or made worse by the violation of a safety statute (i.e. storing hazardous
flammable chemicals).
Contributory Negligence and Assumption of the Risk are both subject to comparative
• But primary assumption is still a complete defense
• In those jurisdictions that let you use assumption of the risk
• This just means the defendant wasn’t negligent
• Not comparative, it’s a 100% defense (contrib./assumption)
• This has increased insurance rates
• Uninsured drivers still can collect
• Eliminated contrib. because with insurance no person will be financially ruined.
74
Negligence was: Violation of the standard of care causing injury
Negligence is: Violation of the standard of care proximately causing injury
Pure (NY + 13 states): JURY looks to facts and looks at what Ds did and they have to come up
with a percentage of how responsible each party was. How important is there action in causing
the negligence?
• It does not matter how marginally negligent the other party was they will always pay % of
damages
• Also works with 2 defendants (% split) between P and Ds
• No matter how small the party can be liable to the more negligent party to the damages!
Pure system (comparative fault) – allocates proportion of fault to each parties role in causing
the accident. (ex. P is 80% negli., D is 20% negli. – P collects 20% of judgement).
50% Modified (IL): Contributory remains 100% defense - only in circumstances in which P is
equally or more negligent than the D.
For P to get any money at all (once they have been established to be contributory negligent)
they have to prove that D was MORE negligent then they were…aka more than 51%
• If D is more than 51% + = P gets damages
• If less than 51% = P does not get damages
Modified system –Criticism of Modified system – how can you tell difference between 50% and
51% ??
⇒ If P is equally or more negligent than D, P gets nothing.
Problem with Comparative system: It is an illusion to think that there is a rational way of
determining the % each party is liable.
Multiple D cases: Where there are multiple defendants, comparative negligence is harder to
apply. (P collects from one D. D1 then can collect from D2, D3, & D4 their percentage of fault
in the accident.)
1. All parties before court: if all Ds are joined in the same lawsuit, the solution is simple:
only the negligence due directly to P is deducted from his recovery. (so if D was 20%
negligent and D1 is 50% neg. and D2 is 30% - then P will recover 80%)
2. Not all parties before the court: If not all Ds are before the court, hard questions arise
concerning joint and several liability. The issue is whether the Ds before the court, who
is/are found to be only partly responsible for Ps loss, must pay for the whole loss aside
from that cased by Ps own fault.
75
a. under common law, in a suit involving joint tortfeasors as D’s, P could decide to
collect the entire judgment from one D, (even if this one D is 1% wrong and the
other D was 99% wrong) and the D cannot sue the other D’s for his share.
i. Total abolition – 1/3 of states have completely abolished the doctrine of
joint and several liability in comparative negligence cases. In these states all
liability is “several”. That is each D is ONLY required to pay for his or her own
share of the total responsibility.
ii. Hybrid – an additional significant # of states have replaced traditional joint
and several liability with some sort of “hybrid” approach, which combines
aspects of joint and several liability
**Today under comparative neg., one D can sue the other D for contribution and collect from
him the percentage for which he was at fault.
Li v. Yellow Cab Co. of California – (An accident resulted from the negligence of both parties.
Plaintiff tried to cross three lanes of traffic and the defendant’s driver was travelling at an
excessive rate of speed.) The trial court held that the plaintiff was barred from recovery due to
her contributory negligence and the judgment was subsequently reversed. Court initiated a
change from contributory to comparative rejecting the all or nothing system.
HYPO: Meadowbrook state parkway: D changes lanes without looking; hits the speeding P sues
and says the D did not take reasonable care in operating the vehicle, he failed to look before
changing lanes. Both negligent so instead of knocking P out b/c she was negligent to – court
can use comparative negligence to determine damages.
Vicarious Liability—provides that in some situations, the tortuous act of one person may be
imputed to another, because of some special relationship between the two. As a result the latter
will be held liable, even if his own conduct may have been completely blameless. The most
frequent situations in which vicarious liability exists are that involving tortuous acts (usually
negligent ones) committed by an employee; under appropriate circumstances the employer is
held vicariously liable for the tort. Master can either be held directly responsible for the
negligence of his servants or can be held vicariously liable
Master (employer) is vicariously liable for all action of his servants (employees) when they are
doing work, if the employee is negligent and causes injury the master is liable.
Independent contractors are an exception to the master servant, if you hire an independent
contractor you are not responsible for their actions. The independent contracts become
independent intervening actors and break the chain of liability.
Fellow servant exception, master isn’t responsible if the employee is hurt by another employee.
76
Vicarious Liability
• Tortuous acts of one person can be imputed to another because of the special relationship
between the two
• Latter will be held liable even if he did nothing wrong
77
IV. Proximate Cause:
Proximate Cause: even after P has shown that D was the “cause in fact” fo P’s injuries, P
must still show that D was the “proximate cause” of those injuries. The proximate cause
requirement is a policy determination that a defendant , even on who has behaved
negligently, should not automatically be liable for ALL the consequences, no matter how
improbable or far reaching, of his act. Today the proximjate cause requirement usually
means that D will not be liable for the consequences that are very unforeseeable.
Cause in fact – “but for”, straight line causation from D’s actions to P’s injury. (primary
doctrine) --> Everything that is cause in fact is not proximate cause
⇒ Doctrine of proximate cause is a limitation of liability and deals with liability or non-
liability for unforeseeable or unusual consequences of one’s acts. In addition to being a
cause in fact, D’s conduct must also be a proximate cause of the injury.
• P has the burden of showing that D is not only the CIF, but also the PC.
• Doctrine functions as a defense to a claim of negligence and as a limitation
of liability.
• Deals with liability or non-liability for unforeseeable or unusual consequences of
one’s acts.
o D is only liable for Legally sufficient acts, not all acts.
o Narrows D's liability.
o You are not the legally sufficient cause of the injury unless you are the
proximate cause.
• Proximate cause Elements:
1. reasonably foreseeable
2. P must be a member of a class as to which there’s foreseeable harm
3. Same general sort despite unusual manner
Duty: you're going to be libel if you negligently caused the event or bc you were careless unless
that negligent conduct did not BREACH the duty to the person who was injured.
Cardozo: “The risk perceived is the duty defined” risk you can foresee is the only danger
you are liable for. You should only be responsible for the consequences that you should have
tried to avoid – what a reasonable person would perceive as a risk
The key to PC is foreseeability: most courts hold that D is liable, as a general rule only for
those consequences of his negligence which were reasonably foreseeable.
⇒ The policy is to limit the liability of the defendant to danger he can foresee.
⇒ Usually applicable to “unforeseeable plaintiff” problem too (D only liable for foreseeable
consequences) - when Ds conduct is negligent as to X (it imposed an unreasonable risk of
78
harm on X), but not negligent as to P (i.e. does not impose an unreasonable risk of harm
upon P) P will not be able to recover if through some flue he is injured.
⇒ Unforeseeability: If you trace a chain of events backwards you can probably find the
problem. But the event at the end of the chain is too unforeseeable. Must limit the
scope of liability. It cannot be beyond the scope of what anyone should be liable for.
Too removed.
⇒ EXCEPTION: once P suffers any foreseeable impact or injury, even if relatively minor, D is
liable for any additional unforeseen physical consequences. (skull – “takes P as he find him”)
⇒ Ruinous Liability: Enormous Liability. Ex. Chicago fire. Cow knocked over the lamp. This
was unforeseeable. Should not have to pay for all of Chicago to be fixed.
⇒ Unforeseeability: If you trace a chain of events backwards you can probably find the
problem. But the event at the end of the chain is too unforeseeable. Must limit the scope of
liability. It cannot be beyond the scope of what anyone should be liable for. Too removed.
1. Doesn’t mean unforeseen but must be unforeseeable for a reasonable person
at the time in the situation.
1. Pure Policy: (Ryan) Public policy to limit catastrophic liability. Due to ruinous liability.
a. It tells people to get insurance.
b. Restricts liability in a rational way.
c. Protection for D against an unpredictable ruinous liability.
2. Dual Risk Theory: (Palsgraf)
3. Remoteness and Intervening causes. (Wagner v. International)
a. Passage of time
b. Intervening Cause (3rd party)
c. Unexpected Consequences.
You have a duty when risk is foreseeable that your negligent conduct will cause injury to
the person or type of person that is injured but not only this but injury in the WAY the
person got injured - and not only to the person you can foresee and the nature you can
foresee but the manner it happened.
Even if injury is foreseeable it is not known that that particular injury would happen from
that negligent act
79
When I do something it creates risks to people of certain kinds of things happening in
a certain kind of way
Person : who?
Manner : how?
Nature : what?
Only an aid to determining whether or not D is PC to injury - tool to use not a rule :)
Pure Policy (PP) protects the defendant from unpredictable ruinous liability
Tells people to protect themselves and get insurance. Restricts liability in a rational
way. Protection for D against an unpredictable ruinous activity.
Reciprocal Risks: encourage people to have insurance b/c danger of fire is equally known to
everyone. Decision here restricts liability in a rational way because it limits liability to one house
on either side.
Ryan – Fires and making people liable and then broke Rule: W/ fires, 1 house is foreseeable and
D is liable. Today, 2 houses are foreseeable
Mine / Chain Gang worker – not foreseeable against the specific person
Reciprocal Risks: encourage people to have insurance b/c danger of fire is equally known to
everyone. Decision here restricts liability in a rational way because it limits liability to one house
on either side.
⇒ It is counterproductive - who has a better capacity of protecting X's house and assets?? - X
by getting insurance! Spreading the loss over a lot of people.
80
Duty: Since the ∆ is not liable for damage to “Remote” house, the ∆ has no duty to protect the
remote house
***Its really completely foreseeable but when they say "foreseeability" they mean obligation to
protect - it is not Ds legal duty to protect the rest of the houses (not next to him)
Ruinous Liability: Enormous liability. Its nice of me to take care to protect you but if my duty
is not to protect me and you but to protect everyone then that is going to impose an enormous
liability on me.
• The group that you are responsible for is a limited group
People who bought your product
People who die in plane crash
• Liability is HUGE but you knew the group that is involved (whether
buying/using etc)
• You are aware of these people before.
• What would have been ruinous liability is changed by INSURANCE.
People are not quite aware of it but just because you have insurance - you
don't realize that inflation has risen so much in the last 20 years so that million
will not really protect you from liability.
Policy method: When injury is remote or unforeseeable or like RYAN when we wish to see it as
unforeseeable.
Doesn’t really affect a factual history - bc clearly he was well aware that if he
started a fire RYAN would burn down the city but it doesn’t matter bc LEGALLY he
it is not foreseeable
81
H: Not foreseeable that parents would let the kids play with a dynamite cap and it was so long
after that its not foreseeable.
Not liable for things that aren’t foreseeable, dangers that were created long ago.
Theory: D is only liable for those consequences of his negligent conduct which were reasonably
foreseeable at the time he acted. You have a dual risk when u can create a situation that would
cause the same injury to occur in a non-negligent way.
So a Reasonable and Unreasonable Negligent risk is created at the same time.
D was negligent and negligence caused an injury but it was an injury nobody in Ds position
would have thought could have occurred..Risk I should know when I do an act v. risks I didn't
know about when I committed act. All created at the exactly same time!
Palsgraf – when there is a negligent and a non-negligent risk and the non-negligent risk occurs,
defendant is not liable for the negligent risk
82
Polemis – if you create a negligent risk you are liable for any consequences, even non-negligent
consequences.
Proximate Cause – Unforeseeable Person, Manner, Nature (Who, How, What) 2/3 = DR
1. Unforeseeable person
Look to see if the person hurt wasn’t foreseeable
2. Manner
Look to see if the manner of injury was foreseeable
Get in car accident, get out of car and bee stings you and you have allergic reaction, the reaction
isn’t a manner that was foreseeable
3. Nature
Look to see if the nature was foreseeable
i.e. speeding causing you to be in the position where a tree falls on you, not causing an accident
Gorris:
F: Sheep were not kept in the statutory proper manner. They were then thrown overboard
during a storm.
P: First argue negligence PS b/c the D broke the statute, but it was also reasonably foreseeable
that this event could occur b/c they weren’t locked up properly.
• Knows risk of sheep getting sick because not putting in the pin
• But created the second risk unknowingly by doing the same conduct - negligence of not
following statute by putting sheep in pen.
D argue: Dual Risk: The purpose imposed by the statute was to protect animals from getting a
disease. It was not to protect them from going overboard. The PC of injury came from the non
neg. cause, so D not liable.
H: Risk of being swept overboard was not a foreseeable risk. The risk of animals getting sick was
foreseeable. The only reason why he had to use pens was to protect healthy sheep from getting
sick NOT to prevent them from flying overboard.
***Only one was created by a negligent act - because made negligent by statute.
Rule of Law: An act is negligent when a reasonable person could anticipate the risk of any type
of harm as a result of the act. (WITHOUT A REASONABLE APPREHENSION OF DANGER, THERE
IS NO LIABILITY).
83
knocked over scales at the other end of the platform where the plaintiff was standing. She was
hit by the scales and thereby injured.
P: Says that it’s cause in fact.
D: Says that it wasn’t foreseeable that this could happen.
H: Majority says that P should lose because the risk perceived is the duty defined.
If the negligent conduct didn’t foreseeably create the risk that happened, the plaintiff
shouldn’t recover. (Risk perceived is the duty defined.)
Negligent if it is foreseeable that this particular person would have been injured.
Note: Could have sued the scale company and they might have been found guilty because this
would be chicken hawks (vibration of the train could have caused the scale to fall)
Analysis:
Risk 1: scales hit Mrs. Palsgraf in head
Risk 2: guard pushing guy onto train = risk they knowingly create that could hurt guy these are
foreseeable and they were negligent bc a reasonable person in their position would know that
their conduct was unreasonable bc person they were trying to get on train was being exposed to
an unreasonable risk of injury by falling off/tripping
Person: person getting on train is foreseeably threatened, not P many feet away
Manner: Maybe of falling from being pushed on, not dropping explosive box
Nature: Injured by falling and being run over = foreseeable
NOT being blown up and not another blown up far away. Injured by being run over, not
from explosion that caused vibration that would knock the scale down.
A reasonable person would not think that this would happen by pushing man onto
train.
No one would consider to stop helping the guy bc they could think that such a
thing could happen - not foreseeable
The injury could have occurred in another way. The risk we created wasn’t
reasonably foreseeable to cause injury.
Cardozo: “The risk perceived is the duty defined” risk you can foresee is the only
danger you are liable for. You should only be responsible for the consequences that you
should have tried to avoid – what a reasonable person would perceive as a risk
**P cannot benefit because what happened to her just happened to be because of a
different negligent act
84
Holding/ Rule: P established negligence and negligence did in fact cause the injury, but
negligence didn't breach a duty because he was not the proximate cause due to this nature
and manner of the injury.
Why should the R.R. Co. get off when they are negligent, just because injury could
have occurred in another way?
a. Cardozo – people shouldn’t be liable if they aren’t morally at fault.
b. “The risk perceived is the duty defined”
c. Risk perceived is the duty defined only applies to actions; not when D doesn’t
do anything.
d. Doesn’t want Ps to be “free riders”
The dual risk theory permits people to be negligent. It does not maximize the
deterrent aspect of the law.
Hobson's choice: "you either buy a horse or you walk..." means no choice at all but now
means choice between TWO BAD THINGS.
**P established negligence and negligence caused injury, but negligence didn’t
breach a duty b/c you weren’t the PC due to this kind/nature of the injury.
How do we distinguish proximate cause from Chicken Hawks where D was liable?
i. Look at whether a reasonable person could have done the aspect of the thing
non-negligently.
ii. Chicken Hawks was not specifically foreseeable, but it was a foreseeable
manner and nature.
85
Rat Poison Hypo Box of poison on shelf over stove where soup is cooking. It doesn’t fall in the
soup, but the heat makes it explode, injuring P.
P: Says that it is foreseeable that it could cause danger.
D argue: Not Foreseeable. It is foreseeable that the poison would fall into the soup causing D
poisoning, but not foreseeable that putting it above heat would make it explode.
H: Not foreseeable that the poison would explode.
Not a foreseeable manner and nature of injury, so not liable
Handy Test- Dual risk scenario means that someone can do the fundamental conduct that the
D did, but do it not negligently.
Ex. Palsgraf- RR sets off fireworks non-negligently but the scales tips anyway. No neg.
then there is a dual risk. - When a ∆ acts and that act creates 2 or more risks of injury, and
the π is injured by one of the risks of injury, the ∆ is not liable if that risk that caused the
injury was reasonably taken
Nitroglycerine Hypo:
86
F: Bucket of nitroglycerine was on a table and the bucket falls and someone breaks their toe.
P: Says that nitroglycerine is dangerous no one should leave it around and I was injured by it.
D: Says that I shouldn’t be more responsible for any more than what happened. The bucket
itself wasn’t an unreasonable risk
H: Plaintiff shouldn’t win according to the dual risk theory. The risk that was created wasn’t
negligent. If it was a bucket of water it wouldn’t be an unreasonable risk. And plaintiff shouldn’t
recover for the risk that didn’t occur (the nitroglycerine exploding).
1. Is there a non-negligent way of causing the injury?
Yes, it could have been a pail of water. The aspect of D’s conduct which was negligent did not
cause P’s injury.
2. 3 step analysis:
Person: Same
Manner: expect explosion, got falling onto foot.
Nature: P would expect burns from nitro, got breaking of a foot.
So the Negligent risk from a pail of nitro falling is the possibility of an explosion. Actual risk was
heavy can which could hurt foot. This risk isn’t unreasonably taken. Only if there was an
explosion would it be unreasonably taken.
There’s both negligent and non-negligent risk. The non-negligent risk of the bucket falling and
the negligent risk of the explosion. When the negligent risk doesn’t happen you can’t collect for
that risk. Only liable for the risk that caused the injury (only if negligent).
Palsgraf says that its not fair for the person to be liable for the risk of something that didn’t
occur in the same conduct there is a set of foreseeable risk and non-foreseeable risks.
Policy Issue: the D is lucky to get away from a negligent risk they created b/c the actual risk
was not the one reasonably foreseen and not PC of Ps injury.
How do we distinguish proximate cause from Chicken Hawks where D was liable?
⇒ Look at whether a reasonable person could have done the injury in a non-negligent way
⇒ Chicken Hawks was not specifically foreseeable, but something getting caught in the 17
inch space was a foreseeable manner and nature.
Rule of Law: When it can be reasonably foreseen that an act may cause harm, the tortfeasor is
liable for damages caused, regardless of whether the type or extent of damages are reasonably
foreseeable. (A TORTFEASOR NEED NOT HAVE ANTICIPATED THE DAMAGES TO BE LIABLE FOR
THEM)
87
FYI: Polemis: Deals with the direct consequence of the negligent act. If the negligence is the
direct and immediate consequence of the injury, D should be liable. (P wins) This is the
causation test supported by Andrews in Palsgraf.
R: Once D is determined to be negligent, the fact that the manner in which is happened was
unforeseeable is irrelevant - if what happened was a direct result of unforeseeable negligent act.
Court says it wasn't remote and there was no intervening cause - direct result - plank fell and
started fire...BC direct result it is not a PC defense and doesn’t matter that it happened in
random/strange way.
In re Polemis & Furness, Withy & Co : If the negligence is the direct and immediate
consequence of the injury, D should be liable. This is the causation test supported by Andrews
(the dissent) in Palsgraf. Once D is determined to be negligent, the fact that the manner in
which is happened was unforeseeable is irrelevant. Ex. Negligently transported cargo.
Reasonable that D would be neg. for it breaking when falling, but here, the cargo fell and a fire
ensued, causing an explosion. That was unforeseeable, but you are held liable anyway bc direct
result of what happened. Tough luck for Ds...(P wins)
Palsgraf and Polemis are 2 views of PC that differ (crunch time seems to go with Palsgraf
as the binding one but later poison ivy case argues with Polemis thinking).
Palsgraf: Negligent if foreseeable this particular person would be injured.
Polemis: Negligent if foreseeable that anyone could be injured from neg. conduct.
Dissent in Palsgraf- chain of causation has to end someplace b/c it’s not fair to hold the D
for something b/c there have been intervening causes.
Dual-Risk Theory: negligent aspect of hypo is dropping lid so that it exploded, if lowering it in
with a rope & not creating risk of splash, then no negligence, cannot sue b/c a reasonable
person would not know that there is an unreasonable risk of injury
These cases don’t have to be inconsistent b/c you can read Polemis as making Ds liable when
injury was the immediate result. And in Palsgraf, you have intervening factors.
88
1) Once P suffers any foreseeable impact or injury, even if relatively minor, D is liable for
any additional unforeseen physical consequences (egg shell skull- if D inflicts harm on
someone that just so happens to have a thin skull an P dies, D is liable).
2) As long as the harm suffered by P is of the same general sort that made Ds conduct
negligent, it is irrelevant that the harm occurred in the unusual, unforeseeable manner
(example: D gives a loaded pistol to X, an 8 year old to carry to P. If X then drops the pistol
on Ys foot, thus breaking his foot but also setting the gun off that shoots P, D would be
liable. It was foreseeable that P would get shot by giving the gun to X, even if it did not
happen in the manner expected. D is not liable to Y though because the gun falling on his
foot was not foreseeable.
Thin Skull case/ eggshell plaintiff: If injury is foreseeable the extent to the injury is
irrelevant - even though way more than anyone would have thought of it doesn’t matter. =
D takes his P as he finds them!
Rule of Law: A negligent party is responsible for the probable, or reasonably foreseeable,
consequences of its negligent act.
Wagon Mound # 1
F: There was an oil spill that released oil into the harbor that’s floating on the water. A
supervisor for Morts Dock & Engineering Co., Ltd. (P) asked a manager of CalTex Oil Company
about the oil, and the manager assured him that the oil was not flammable, but a fire, caused
when welding materials fell through the dock into the oil on the water, oil caught fire and both
ship and dry dock = destroyed in the fire. Dry Dock Sues.
P: Says that it was foreseeable that the oil would catch on fire.
D: Says that it’s not foreseeable - Oil not supposed to catch fire bc assured by manager that oil
in water does not burn. At the time they did the act they did not know it would burn - was the
fact that it would burn foreseeable.
H: Court uses DR and says that the fire was unforeseeable, a reasonable person wouldn’t have
known that the salt water would burn. This is like Palsgraft (they were negligent but wasn’t
foreseeable). D not negligent.
Court holds that it wasn’t foreseeable that the water would catch on fire. Though the Defendant
was negligent, they didn’t negligently create the risk of fire.
89
Wagon Mound Cases: Suit against the dock.
WM#1: Ds ships spill oil into the bay. Some of the old adheres to Ps wharf. The oil is then set
afire by some molten metal dropped by Ps worker, which then ignited a cotton rag floating on
the water. Ps whole dock burns.
D argue: (Defense = DR) We were CIF, but not PC. Dual risk. It is foreseeable that we could
cause some beach damage with escaping oil, but an explosion of the dock is not foreseeable
from us cleaning out our tanks
P: (dry dock suing) In trouble. They were doing work on the dock, if they prove foreseeability,
they would be contrib neg. But D spilled the oil into the water, so they were negligent.
H- D wins. D is not liable because the burning of Ps dock was not the foreseeable consequence
of Ds oil spill, and thus the oil spill was not the proximate cause of the damage. This is true even
though the spilling of oil was the cause in fact of the burning.
Rule: They could not foresee that someone would be scraping flaming paint into the oily water
that would start a fire, only foresee contaminating beach (Palsgraf)
Wagon Mound #2: Same facts above, P was ship owner whose ship was destroyed. P lawyer
brought in new evidence was brought in by P that said that spilling oil creates a foreseeable risk
that burning will occur. P (ship) did not want to bring this up initially because then P
would be contributorily negligent for dropping molten metal in the water. It was a
complete defense in those days so they would have lost.
P: No Contrib worry, so they introduced expert evidence that danger was reasonably foreseeable
by the oil tanker engineer (should know that spilling that amount of oil can cause a fire
somehow – CHICKENHAWKS!) Dual Risk Disappears, No PC, so negligent.
D: (Defense = DR) : Still stick to DR doctrine but same law can lead to different results bc of
fact changes: If you adopt Dual Risk - then the negligent act must be foreseeable. As a result,
the dual risk disappears as the spilling of the oil in the water becomes negligent (is an
aspect of Ds conduct) as it is was shown to be foreseeable after all.
H:While P is contributorily negligent, it does not get D off for the greater harm of spilling oil in
the water when they know or should have known it could burn something. (if everyone knows
that they could cause fire by scraping paint into oily water, then they would have been held
liable for contrib. Neg) P WON
Both decisions are consistent w/ Palsgraf doctrine because the risks were foreseen. In
#1 it was not shown to be foreseeable, and in #2 they showed that it was foreseeable.
Remoteness/ Intervening Cause: Not only time, but the policy of risk created.
Wagon Mound # 2
F: Same facts as Wagon Mound No. 1. Ship sues
H: This time there’s testimony that it’s foreseeable. And the Ship wins.
When there is reliable testimony. This is a change in factual proof. The ship wins because the
testimony shows that it is foreseeable.
Aside: In the dock case, they couldn’t say that they knew that everything would burn, because
they would have been contrib. (they were sitting there watching the guys scrap the paint off)
People that own the dock are the same people that are overseeing the burning and the paint
scraping. They couldn’t prove foreseeability because then they should have foreseen it too
90
F: Ship gets tipped sides, floats down a river, creating a dam and causes flooding
H: Doesn’t follow dual risk. Though this risk wasn’t necessarily foreseeable, the defendants
should have been alert to any possibility of danger.
If it is foreseeable that a risk could be created even if the exact risk doesn’t happen, the
defendant is still liable
Passage of time
Intervening cause
Unexpected circumstances
Safe Harbor – ripples are quieted, out of the harm created by the negligent conduct.
Person that is in a parking spot fixing his car after an accident
Woman in the hotel room that catches on fire
Dependant (foreseeable from the point of view of the defendant before the accident)
Brower – Wagon that gets in accident with the train and the train has guards but he gets
robbed
Unexpected Consequences
Danger (injury) invites rescue – if someone is injured by negligence its foreseeable that
someone would come to their rescue
*Cousin Herbert
*Car still in the building after an accident, person is getting it out
91
Emergency service workers don’t count because they assume the risk, its duty
Tow truck drivers aren’t emergency workers, don’t assume the risk
Andrews: negligent risks created dissipate over time and are mixed with other risks that could
happen and once they mix it is no longer fair to go back and say that the person who did it or
put it in there is responsible. Chain of causation - so many other things happened that it no
longer the same.
EX: Pond - someone throws rock in pond - water ripples. Round pond so eventually ripples hit
shore and it is flat again. But pond is forever changed - bc now there is a rock there. However
the immediate effect of all the ripples is gone. Andrews view is that when someone stubs there
toe on the rock (that was negligently put into pond) and he trips and drowns. Even though you
can track it back to the rock thrower now you are just left with the world being different and it is
unfair to hold D liable. Other things intervene that we know about or it was so long ago there
there must be many intervening things that we don't know about.
Unexpected that two chicken hawks are going to fight but that is not PC defense - metal fence
lying by wire bc something could come in the gap - this is not an unforeseeable risk or this is a
unexpected foreseeable risk - problem is it is not so easy to tell the difference.
*Just being in a different place is an end to the ripple - risks end (as long as it is a
normal place to be)
Change of facts - damage by storm which was not predicted would that change anything?
Storm = remote. Remoteness and intervening cause.
Whether or not the intervening cause is an independent intervening cause and therefore D is not
liable but if it is a dependent intervening cause D is liable.
Independent from what? = independent form risks created by D (not foreseeable) not in
range of risks created by Ds conduct.
Dependent? Chickhawks = something you would not expect but in the range of risks created by
Ds conduct.
92
Car accident and you are physically injured in the car and someone comes along and mugs you
and you are physically injured by mugging.
Train wreck and as a result of damage to truck thieves come and steal it all.
D did not cause risk bc thieves not foreseeable. Thieves can attack anyone anywhere =
ubiquitous.
Train/Hotel burn hypo: RR hits the back of A's car but A is not hurt. He is stuck in the middle
of nowhere so he rents a hotel room. Hotel burns and he is burnt.
P: I was stuck in the middle of nowhere b/c of your neg. RR driving.
D: no duty. There was an independent intervening cause. Not our fault. The risk has passed. Not
in the situation before, but in a different, supposedly safer situation.
H: D will not be liable since we do not want D to be liable for everything. It was not foreseeable
that hotel would burn in a safe area.
Rule of Law: If a third person intervenes and acts to contribute to the injurious effect of the
original negligence, and if such an act ought to have been foreseen, the first wrongdoers will not
be excused from liability (INTERVENING CRIMINAL ACTS, IF FORESEEABLE, DO NOT RELIEVE
THE ORIGINAL TORTFEASOR FROM LIABILITY)
93
Brower v. NY Central & H.R.R:
F: Railroad hits the vehicle and the valuables are left on road. They get stolen and the driver of
the vehicle sues the railroad.
P: RR caused the stuff to fall out of the vehicle. Further it was foreseeable because they had
guards on the railroad to prevent theft. They should have guarded my stuff too. Defendant was
aware of the risk of leaving unprotected property in that area and an independent intervening 3rd
person will not break the chain. Risk perceived is the duty defined -
D: Says unforeseeable.
H: This was a dependant intervening cause. The railroad knew and guarded against the risk.
The court held that a dependant (unforeseeable prior to accident) intervening cause
did not eliminate liability, only an independent (foreseeable) intervening cause did.
Because the railroad employed detectives to ride their train to protect against theft,
the court ruled that theft of the items was foreseeable and should have been used to
protect the plaintiff’s items. (RR established that it was foreseeable bc they hired
detectives)
Change of facts: Train going 1500 miles to FL - at various stations they have hired security
(scattered in cities along the way) but there is a desolate stretch in southern GA - accident
happened here about 75 miles north of FL border.
I:Is P going to win or D going to win on PC?What fact do we need to make risk foreseeable?
H: Close to station. They had security bc they foresee thieves - if property was unsecure then it
was likely to be removed or stolen. But it has to be right where it happened. = fact that makes it
foreseeable.
Rule of Law: A negligent act can give rise to situations that create additional risks and render
the wrongdoer liable for injuries that could not be foreseen. (A CHAIN OF EVENTS TRIGGERED
BY NEGLIGENCE CAN INCREASE LIABILITY)
Marshall v. Nugent:
F: There’s an accident and the car is stalled on the side of the road. Driver comes around the
bend (its dark and icy) and doesn’t see the other car until it is too late and gets into an accident.
P: Proximate cause, the original negligence caused the accident. Chickenhawks PC: Maybe
unforeseeable specific facts (like P being hit by a flying post), but it is foreseeable general event
(when D causes P to skid off the road, it is generally foreseeable that some kind of further injury
will occur. “Some kind of danger” *D’s risks are not over after act. They last until the event has
passed.
D: Says they didn’t cause the second accident, their negligent act was done.
H: The ripples were still in effect, the accident hadn’t been cleared.
The ripples haven’t cleared after an accident when it has not been cleaned up yet.
Accident 1 Car is pulled out of snow bank and drives away. ½ hour later, the car is hit at a train
crossing. P sues original D again.
P argues: If the D hadn’t been a negligent driver, he wouldn’t have been a ½ hour late and I
wouldn’t have been hit by the train. Your neg was the PC
D: Not the PC. Remoteness PC: The danger created by the accident no longer existed.
The doesn’t make me responsible. “The ripples ended”, the D will always be ½ hour late, but
the D should not be responsible after a period of time. There was intervening causes.
94
P argues back: I may have still emotionally been effected and that strain caused the train
accident. . .Nothing broke the chain of causation and D is liable b/c the ripples haven’t ended.
D: Not PC - not liable bc he got to the parking spot = safe place. Therefore the causation
continued but the PC has been severed and the D is not liable.
Accident (change of facts) P was in between two cars and he wasn’t looking for stuff in trunk
he was a little dizzy from the accident and he was leaning on trunk of car when Mary comes
along...
P: ripple effect did not subside yet. Argue that he was not in a safe place
D: Ripples end when you are in a safe normal place. Foreseeable risks had ended.
H: injuries were foreseeable and were the natural and proximate cause of her him being
there. Therefore still not a safe place for him - he wouldn’t have been there if he wasn't
physically injured. (credible argument - but prob not going to prevail)
95
H: Agrees with the defendant.
Being negligent doesn’t necessarily mean that the defendant will lose if it can be
shown that the negligence wouldn’t have mattered anyways.
Gas station : Oil leak that starts a fire - any difference if someone looks around and thinks no
one is watching them and intentionally drops a match or someone is lighting a cigarette and
accidently drops it in the puddle of oil.
• Foreseeable that if you have flammable stuff all over something might set it afire
• Clear that pool of gasoline is a dangerous thing bc it could start a fire
• If fire could be started accidently then why isn't pyro foreseeable
• Now all of a sudden there have been a lot of fires bc economy is bad and people are
starting insurance fires
• In case of arson - person : building that burns nature: fire but manner is not foreseeable
(arson is not foreseeable).
Is arson foreseeable? Since it has been prevalent bc of insurance fraud (allegedly?)
* What if it was intentional? Like a pyro drops match and P's car blows up?
If an intentional act is caused by a criminal, the act is not foreseeable and P can't sue tanker.
• Not responsible for criminal intervention that causes injury. Reason why Pyro is not
foreseeable is bc criminals are ubiquitous and it is not foreseeable unless there are facts
that show it is foreseeable. (Aforementioned Watson case).
Pyro hypo: D is driving a oil tanker. Turns too fast and gas falls onto the street. A few hours
later, a car is driving down the street and spark is created. Blows all up.
D: PC. The spark from P’s car is the independent intervening cause that breaks the chain.
P: your negligence was the PC and the risk created doesn’t break the chain of causation.
*Higher duty to take affirmative action to care for people in certain circumstances
Hotels have an affirmative duty of care
So do landlords and people who own property
Wagner v. International Ry
F: Plaintiff gets injured while looking for his cousin who fell out of a railroad car.
P: The railroad negligently caused the injury of my cousin and I had to find him.
D: The chain of causation was broken, we did not cause the plaintiff’s injury only the cousin.
H: Danger invites rescues, the railroad should foresee that the plaintiff would try to save him
96
“Danger (injury) invites rescue” foreseeable consequence rescuers would be in danger & are
intervening causes (injured rescue workers cannot sue b/c they are inviting injury by their
rescue efforts)
Henderson Case
F: Guy is a rapist / murder, he’s doing public work on a chain gang and he breaks away and
rapes a woman.
H: It’s foreseeable that if he escapes he’ll rape someone but its not foreseeable that he’ll rape
this particular woman. Plus as a policy argument the gov’t benefits from these people working
and doesn’t want to be liable for them.
Policy says that we don’t the government to be liable for those who escape from chain
gangs because they will eventually be liable for those out on parole. Further the
specific person in this case was NOT foreseeable, the manner and nature aren’t
necessary foreseeable either (not sure that he’ll rape again only a break-in or physical
injury is really foreseeable)
Henderson: The D’s company leases convicts for mining and negligently permitted one to
escape. He rapes P. D is not liable.
Hines: RR takes P one stop further than they should have. She walks back and she is raped. D
is liable.
Why the inconsistency?
• In Henderson, the “person harmed” was NOT foreseeable. It was too unpredictable. Can’t
make the D liable for all acts Henderson might commit. That would be ruinous liability.
97
• In Hines, the “person harmed” was foreseeable. RR had a duty to her, it was foreseeable
that she would be assaulted in that area. The RR knew the type of area it was and that
after dark she would be exposed to risks bc she is vulnerable and in a dangerous area.
The type of person here is Key.
• Henderson: Iowa about to sell all prisons to private companies. Coal company had a
bunch of prisoners who worked. He escaped and raped victim. Coal company being sued.
They were negligent in letting him escape. Defense is PC.
• In Henderson, the "person harmed" was NOT foreseeable. It was too unpredictable. Can't
make D liable for all acts Henderson might commit. That would be ruinous liability. In
Hines, the "person harmed" was foreseeable. RR had a duty to her, it was foreseeable
that she would be assaulted in that area. The type of person here is Key. Henderson can
also be paralleled with police. If someone escapes, cannot put all the blame on them since
it would be provide ruinous and endless liability. Woman raped by convict (still confined)
employed by coal company.
P: claims PC - uses Hines case - its foreseeable he's a rapist.
D: it was not foreseeable - too unpredictable. Not direct result of coal company hiring
criminal - criminal who escapes and rapes a woman...
When you think of defenses you want to every defense that you can use.
• When you say proximate cause you are saying that I have no duty
o A. because you are too remote
o B. intervening cause
• I wasn’t negligent
o This will be decided by the jury
o Hope to not get here and that proximate cause will be thrown out before you get to
negligent
98
Pure Policy
• Ryan– Fires and making people liable and then broke
• Mine / Chain Gang worker – not foreseeable against the specific person
Dual Risk
• Palsgraf
• Wagon Mound 1, Wagon Mound 2
o Distance of the dual risk so you can apply Palsgraf (or Gorris v. Scott)
Must be a conduct that has not negligently created risk, at the same time a
negligently created risk, and the non-negligently created the risk happens
• Single action creates both a negligent and non-negligent risk
V. AFFIRMATIVE DUTIES:
Affirmative Duties
• General Rule: No duty of Affirmative Action. There is no affirmative duty to act, even
of aware of the risk and have the capacity to help.
Duty to Rescue:
Expansion of common law - it used to be that you had NO DUTY unless you caused the
injury now you have to under these duties:
1. The duty to do no wrong is a legal duty. The duty to protect against wrong is,
generally speaking, a moral obligation only, not recognized or enforced by law.
2. Strict liability would narrow the need for creating any fresh duty in tort to take
affirmative care, given the prior dangerous situation.
3. If an actor knows or has reason to know that he has caused another bodily harm,
the actor is under a duty to exercise reasonable care to prevent further harm.
Yania v. Bigan
99
F: D urged P to jump into a well which he did and died by drowning. D did nothing to help P
when he was in there.
P: You have a reasonable duty to take steps to save another person.
D: No legal duty to rescue unless you're legally responsible for placing that person in danger.
P voluntarily placed himself in that position of danger & is alone responsible.
P argues: The child B relied on the statement that A is a good swimmer. This MAY create an
affirmative duty of action.
D argues: No duty to act. No violation of duty you don't owe.
Waterfall Hypo
F: Dangerous water fall. A college kid jumps in after his friends tell him not to. He doesn’t come
up so his 2 friends jump in after him. All three die in the water.
No duty to rescue because many people who can’t rescue put themselves in peril.
Gratuitous Undertakings:
Assume the duty : Gratuitous undertaking and now you are liable when you otherwise would
not have had the duty to help (good Samaritan)
Reciprocal Risks
• Shouldn’t recover millions if you have an injury
• But you can be on the government dime for life
• Liability and financial responsibility go hand and hand in law making
100
By putting him in back room - they eliminated the possibility of others helping. Not
completely clear if you start to help and then stop but your action did not deprive the person of
assistance by anyone else that you would be allowed to stop. The problem is that this is not an
action that is favored. Even if you are not leaving him any worse off - you still might be
preventing him from getting help...
Moch v. Rensselear
F: Contract to provide water. While they were fixing the water a house caught on fire and burnt
down.
H: Courts say that there is no duty to a third party beneficiary. There’s only a duty of affirmative
action. This is a policy argument to keep the water companies in business
No duty to third party beneficiary of a water contract in NY (some other states have said there’s
a duty)
Old Affirmative Duty System – Didn’t have to warn because you weren’t negligent
• This was inefficient because negligence is decided by a jury and the jury doesn’t hear the
case until years after the incident.
o Obligations depend on a jury finding years later
New HYPO (illustrates assumption of duty): P is drowning and D goes in to save them. D
then turns around and goes back.
P argues: Voluntary Assumption of a duty. When you went out to save me, others saw this and
did not think they had to help. I was deprived of an opportunity to be rescued.
D argue: I was cramping up and I could not save you.
H- once D voluntarily begins, even if he was under no obligation to do so, D must proceed with
reasonable care.
101
puddle that the P can’t get through so the boss lets him out to walk. He gets extremely sick from
walking the distance in the rain and cold.
P: Gratuitous under taking, once you assist someone you have to duty to complete it non-
negligently.
D: No duty to assist and was not negligent.
H: Must act reasonably to not cause injury.
In a gratuitous undertaking once you assist someone you have the duty to complete it
non-negligently and not expose to additional injury.
Robbery Hypo P asks D to lock his door. D forgets and all of Ps stuff gets stolen.
D- I have no affirmative duty.
P- but you promised.
Here there is no consideration so it is merely gratuitous. What if P asked while he was hanging
out with D and 10 others? Here we might say P reasonably relied and on promissory estoppel
grounds, D would be liable.
Accident Hypo: P is in an accident and D stops to help- he puts a towel under his head and
goes out to get help. As he is searching, wife calls and tells him to come to dinner.
P- you dick, you totally forgot about me, you are liable for my injuries after you left since they
were exacerbated by me waiting there. You voluntarily assumed the duty to help once you
stopped to help. I then reasonably relied to my detriment. Moreover, others might not have
helped after seeing you helping me.
H- D is liable here, once he starts he has to continue helping in a reasonable way.
Nonfeasance/Misfeasance:
Nonfeasance: when D has an affirmative duty to help, aid, or assist even though the harm did
not come from D. (not doing anything)
Misfeasance: D has an affirmative duty to act, they take action, but their action is
negligent/improper. (doing something)
Montgomery: Misfeasance Case. D's truck stalls on icy road. It wasn't their fault. D puts out
flares right near the truck. P came over the hill but by the time they saw the flares, it was too
late to stop and they crashed.
D argues: We owed a duty and we fulfilled it; we put out flares. We weren't Negligent.
102
P argues: There was an affirmative duty to act because your truck was blocking the road, you
assumed the duty by putting out flares, but you put them in a negligent place and failed to
neutralize the danger you created.
H- D is liable in these situations. D would have to put the flares where people can see them and
avoid danger. Weird thing though is that if D put out no flares, he would not be liable as long as
he took reasonable care by trying to push his car or something, but once he assumed a duty, he
had to then take reasonable care, which he did not.
• Anyone who maintains business premises must furnish warning and assistance to a
business visitor, regardless of the source of the danger or harm.
• When Ds own conduct caused Ps injury.
• D and victim as co-venturers: if two friends went camping or jogging, they might
have affirmative duties to each other.
• D having a duty to control 3rd persons and not exercising that control: Example, D a
storekeeper, fails to take action when X, and obviously deranged man, comes into the store
wielding a knife. P, a patron, is stabbed. D would probably be liable for not taking action.
• Would be aforementioned assumption of duty. Once a D starts to help he has to
finish otherwise, it sets him up big time since all potential Ps can cry out promissory estoppel
as they reasonably relied to their detriment
103
Conduct of persons on property -- Owner has duty to exercise reasonable care with is own
activities and to control conduct of others on this property to avoid unreasonable risk of harm.
Don’t win solely because they are injured, need to prove wrongful conduct or negligence, there
must be a violation of a standard of care.
Attractive Nuisance
1. Must be an artificial condition
2. And they have to be lured onto the property
Reason that categories are bad is because they are like special duties and its not a good idea to
have special duties unless you know enough about the situation
104
⇒ A fireman, police officer, etc. will not have a cause of action against a homeowner for an
injury occurred in the course of their job, provided the injury occurred in a manner
reasonably foreseeable in the normal course of their duty.
⇒ Three Categories of Relationships: (eliminated in NY-NY requires ordinary standard of
care to everyone; CA has merged invitees and licensees under the invitee duty)
If kid is lured onto the land by someone telling him about it and not because
of the attractive nuisance then that is an independent intervening cause and
breaks Ds liability.
2. Licensees : Social guests or people who have permission (express or implied) to enter
the property. Duty to warn of known dangers.
3. Invitees: Business guests; Person invited as a member of the public; invited onto the
premises Duty not to be negligent and protect from known and unknown dangers.
Reasonable efforts to inspect are required.
P must show:
⇒ There is a dangerous condition present on the land which the owner is aware.
⇒ The owner Knows/ should know that Young people frequent the vicinity.
⇒ The condition is dangerous because of child's' inability to appreciate risk.
⇒ The expense of remedying the sit. is slight compared w/ the magnit. of the risk. B <PL
CA has 2 categories
NY has one category with the same duty to everyone including trespassers — The condition
exposes people to a risk of getting hurt and a criminal should not be excluded from
the protected class. P argues that it could have been someone else; the D argues that he
105
may have had planned to have them fixed next week or made efforts to warn everyone who
comes in—it becomes an issue of fact.
HYPO: Someone goes into office building (this was before there was hardcore security) and go
to the candy store - if you walk out back door of lobby and go out an airshaft and on one side
there is a mail shoot - one day P goes into lobby and goes outdoor of lobby to mail something
and a brick falls on his head - D says he is trespassing - P says I'm invited in this space to do
business - I'm an invitee - didn’t know about dangerous brick and D has duty to inspect.
Guilford v. Yale: P was in Yale when he went outside to pee, but he falls and gets hurt.
D- I owe you shit because you are a licensee.
P- wrong bitch- I am an invitee because you are soliciting money from me, therefore you are
liable for not asserting a reasonable inspection to find hidden dangers or at least give me a
warning. You invited me to give money to the school as an alumni
Mother in law HYPO: Mother in law living with you - you left briefcase with papers in it - she
cant find it and you think it might be in basement - while going down into basement she falls
and trips on a step nobody knew about. She is clearly not a trespasser - normally bc she lives
there she is a licensee (like if she was doing the laundry), but bc she was doing it for him and
his business purposes she is an invitee.
P - she wouldn’t have gone down to basement but for D needing basement papers therefore is
an invitee
106
No duty to trespassers, but cannot intentionally cause injury.
Known trespasser
• Idea behind is if the owner is affirmatively aware that trespassers will be there, you can’t
say that you know they won’t be there
Sioux City & Pacific R.R. v. Stout, 84 U.S. 657, 661 (1873)
F: Turntable - Kids were standing on it, playing on it (it moves slowly and turns), Get caught and
crushed, doesn’t die but is hurt.
P: Known trespasser.
D: RR says trespasser
H: The turntable for the railroad isn’t unreasonably dangerous. But the defendant knew that kids
could be there. It was an artificial condition, kids like to play on it, it has dangers that the kids
might not understand and it lures them on to the property.
Attractive Nuisance: Only applies to kids, must be an artificial condition of the
property and must lure them onto the property.
107
P: Attractive nuisance
D: Didn’t lure them onto the property
Attractive Nuisance must lure onto the property.
Rowland v. Christian
F: Guest cuts his hand on a faucet.
P: Says he was a guest, only had the duty to warn
D: Says that had the duty to inspect
Court abolishes the invitee / licensee distinction in California.
California
• Abolishing the distinction between licensees and invitees
• Permitted entrants and trespassers
o Permitted entrants were owed a duty of care depending on the circumstances
• Still no duty to trespassers
108
P: Still owe a duty of care because it could have happened to someone else, it was incidental
that I was a theft.
D: Not reasonably foreseeable that a theft would enter at midnight and fall through the stairs
Factual finding for the jury, likely to weigh in the favor of the thief because of
insurance
In California
• There is no duty to trespassers
Special Relations
• Sometimes defendants should have greater duty to protect others than the normal duty
(reasonable care) because the normal duty of reasonable care also comes with no duty of
affirmative action
• The relationship between P and D, that the D knows that P is dependent on D, for certain
kinds of support or protection
o Since the D knows this, its not inappropriate to make them reasonable for providing
it
• Sometimes have the duty of affirmative care to protect from a third party, it depends on
the relationships
109
o If a person comes into a store with a knife the store owner likely has the duty to
protect the patrons
• Landlords have the duty to protect tenants when the facts show there’s reason to know
there may be crime in the area
o Can’t be a resident of the building
Certain (Special) relationships create an affirmative duty of care to others (this includes a duty
to warn).
Duty is to provide reasonable care (and to warn) and the reasonable care depends on the
situation.
In an apartment building attack, burden is on the plaintiff to show that 1. there was negligence
that allowed the person to enter (broken buzzer, etc.); 2. That the person wasn’t a tenant or a
guest of a tenant.
Doctor’s duties in special relationships: Doctor owes a duty to a third party in danger due to the
relationship to the patient, only have a duty if the threat of harm is reasonable (i.e. quarantine
cases or psych cases).
110
Reasonable care depends on the nature of the situation even when its an affirmative
duty due to a special relationship.
Wassell v. Adams
F: Woman is in a hotel and she opened the door to her attacker (thought it was her fiancé)
P: Says that the hotel had the duty to warn her.
Hotel didn’t have a duty to warn because any reasonable person knows not to open
their doors to a stranger.
111
Doctor’s duties in special relationships
• Doctor owes a duty to a third party in danger due to the relationship to the patient
• Only have a duty if the threat of harm is reasonable
• This comes from quarantine cases
o Have a duty to quarantine when patient has a contagious disease
o Also if a suicidal person jumps out a window of a psych hospital, the hospital would
be liable for failing to secure.
Emotional Distress
• Negligent Infliction
• Intentional Infliction
Zone of Danger (NY) – 1. Close enough that you could have been the one injured & 2. Need to
be a relative
Dillon Rule (California) – 1. Need to see it happen & 2. Need to be a close relative & 3. Needs to
be foreseeable that the relative would be there
For intentional infliction of emotional harm need 1. Emotional Distress and 2. Extreme and
Outrageous Conduct.
Historically
112
• Couldn’t collect for emotional harm unless something else serious happens (i.e. had your
leg cut off) because it was believed that serious injuries had emotional consequences
• Compensated pain and suffering
• Historically needed contact (even if it was just a cinder)
• Physical manifestation – this used to be part of the emotional harm (needed an ulcer,
miscarriage (spontaneous abortion), etc.). needed to have a physical manifestation of the
emotional harm
o No longer need this
113
F: Dad is picking up his car at the repair shop and brings his 11 year old son. Guy runs over the
boy’s foot, dad doesn’t see it but hears him scream. Negligent in not looking.
NY – Zone of Danger: Can’t recover if he was 20 feet away, but if he was 3 feet away with his
back turned he was in the zone of danger.
California – Dillon: He’s a close relative and saw it happen. And the defendant should know that
adults would bring their kids to pick up their cars.
Elevator Hypo
F: 11th floor in a building. Playing ball, the elevator door opened and the kid goes in elevator
and there’s no elevator there
Zone of Danger (NY): Everyone heading towards the elevator was in the zone of danger, if he
wasn’t heading towards the elevator he probably wasn’t in the zone of danger.
Tricycle Hypo
F: Mom is in the kitchen on the 3rd floor apart driveway is outside kitchen window. She hears a
crunch and sees her son’s tricycle crushed and freaks. But the kid was in the back and wasn’t
hurt or anywhere hear the accident.
In NY she can’t recover not within the zone of danger
Dillon: Its foreseeable that the mom would be watching out of the window (but she doesn’t see
it happen, this is the reason you have to see in California to limit liability). Also its not
foreseeable that if you hit a bike you’ll emotionally distress people (not the proximate cause of
the emotional harm)
Funeral Hypo
F: Car hits the horse drawn hurts and the body falls out.
The court said that there wasn’t a hard and fast rule about zone of danger. It said that
essentially if you smash into a hearse and the body is thrown onto the street, you have to know
that the relatives will be distressed and you know that relatives are there.
114
o Would be extremely outrageous even if no one was distressed about it
To be extreme and outrageous behavior and not a joke you need: Where’s the line between
• Emotional distress
o Depends on the end result, if an obnoxious person runs into someone emotionally
fragile it could end in emotional distress
• Extreme and outrageous conduct
o Depends on judge / jury
• This solves the problem of being able to sue for emotional distress
• But people will get compensated if they are emotionally fragile
o And also people who are good at faking it get compensated
Criminal Assault
• Intent (purpose) to commit battery
• Its putting someone in the fear of a battery
• Has to be offensive conduct, but any conduct not consented to is offensive
• In tort we understand that if someone swings and misses narrowly you can still have
emotional harm
o One reason to compensate is to prevent retaliation
False imprisonment
• Is a dignitory tort
• No physical harm
• Protect emotional state
Accidental False Imprisonment: cannot sue for accidental false imprisonment because it involves
at least knowledge.
Negligent False Imprisonment: can sue for negligent infliction of emotional harm, because of
physical fear of the dark, etc. Also, you are in the zone of danger of the trauma of being locked
up.
Intentional False Imprisonment: can sue for intentional infliction of emotional harm.
Dignitary torts
• Considered to be like assault, even though they were not hitting you (striking the French
ambassador’s cane)
115
What do you tell a defendant in intentional infliction?
• Starts with a group of torts: trespassing, mistreating dead bodies, assault (not actually
hitting someone but making them think that you would), false imprisonment
o Tell someone not to swing at someone, if you hit them they can sue you if you miss
they can sue you too
o These are cases where it is clear why people will be upset
• (2) is about someone that comes onto the farm and beats up the husband while the wife
is watching
• She sues because she’s so upset
o The court says “transferred” intent
You intended to battle the guy, but you knew that she was there, so the
intent transfers to her
116
Intent to battery him transfers to an intent to assault her
This means that you intend the natural and probable consequences of your
actions
Wilkison v. Downton
F: Case where the wife is told her husband is hurt and to come with pillows
• Can’t sue for emotional harm
o Must of intended to cause physical harm
117
F: Woman (employee) was accused of stealing and they put her in a back room for hours. Later
that day they fired her.
P: False imprisonment and emotional distress
D: We were paying her and she wasn’t falsely imprisoned.
If you are paying someone to work, you can pay them to sit in a backroom or at a cash
register and the backroom isn’t false imprisonment.
If you don’t have the right to arrest someone and you detain them, its false imprisonment (i.e. a
store detaining an accused shoplifter).
• If the crime was committed then you have the right
• If you are wrong, then its false imprisonment
• Police officers get a privilege
o Probable cause
o They are allowed to falsely detain someone without having false imprisonment if
they reasonably believe that someone committed the crime
• Common law prohibits store owners from detaining people
• Massachusetts has a statute that gives a privilege to the store owner
Not false imprisonment if you can reasonably escape from the room or if there is no
cohesive force to keep you in the room. If you have the option to leave you can’t claim
false imprisonment, it also must be intentional.
False imprisonment
• Has to be intentional
• Must have cohesive force
• Can’t be able to leave the room
Assaults
• Future threat is not an assault, it has to be something that will happen now
• “I’ll beat you up on Friday” isn’t an assault
• Need to be put in imminent fear that it will happen
Damages
118
Theory of Found Money – Willing to give up money that you don’t have yet (but usually regret it
later)
Rule of 7’s and 10’s (money invested at 10% will double ever 7 years, and money invested at
7% will double every 10 years [compound interest])
Per Diem – Break up into units of time and figure out the worth of moments of time.
Collateral Benefits Rule – Benefits that the P gets are not to be used to benefit the defendant
(for example if P gets hurt and pays $25 co-pay, he gets the full amount of the medical bills, and
double for worker’s comp, etc.). The policy behind this is that the D should not get the benefit of
P being cautious and getting insurance.
Subrogation clause – Lots of insurance companies have this now so that if you collect
you have to pay them back.
Mitigation of damages – don’t need to have surgery if it would be cheaper than the emotional
damages, because the Plaintiff isn’t required to take the risk of surgery to mitigate the damages.
Contingent Fee
• NY have capped attorney fees in certain kinds of cases
o i.e. gets a 1/3 of the first million then after that capped at 10%
o The incentive is to get the attorney’s to settle because the additional isn’t worth as
much to them
• Originally a question of ethics
o Maintenances – giving the client money to live
o Champerty – drum up litigation where there isn’t any
• Allows those who couldn’t afford a lawyer to get represented
• 1/3 seems like an awful lot of money because it doesn’t relate to the amount of work that
is done
o Get the 1/3 whether you make 5 phone calls or if you got through trial and appeals
o This is tolerated because the attorney has to get more money than the billable
hourly rate because some of them aren’t going to win
• How come 1/3?
o Usually its after that the client’s gripe about the fee
o Attorney is taking all the risk
• Theory of “Found Money”
o Money you didn’t earn isn’t as real, and therefore you didn’t earn it, it doesn’t count
in the same way
o Since it sort of doesn’t count or exist, you are willing to give up a lot because you
don’t have it
Regretful afterwards, because we don’t have anything now and don’t expect
to get anything in the future
• Idea was to compensate the plaintiff for the loss
o The client is left 1/3 short of what they need
119
Pain and suffering
• Compensable but difficult to monetize it
• There’s both past and future pain and suffering
o Difficult to monetize it
o At the time of trial there’s both past and future pain and suffering
Sometimes they are the same (as in when you lose an arm), permanent
detriment
Getting hit by a car and having a compound fracture of the leg which heals in about 6 weeks,
but it leaves a scar. If there’s no medical expenses and no loss of income the case is worth
about $50k in Pennsylvania, about $75k in Nassau county and $110k in Manhattan
Don’t pay taxes on the compensation, so $110k would be worth about $150k because you don’t
lose taxes
Greater the advances in medical science, the more horrifying it is to look at someone with
permanent inflictions
120
o Experts can say that some of the injuries can be increase the chance of cancer, so
this injury is pre-cancerous, this is very speculative
o Or for a trick knee that dislocates sometimes they could say it will just get worse
and the guy will probably need surgery by the time he’s 50
• Future expenses in Loss of Income
o Tend to be proven by expert witnesses
o Have to speculate on whether the person will continue to get promoted and get
more money, its speculative but its not like Grimstad because its expert speculation
• Time value of money, money you get now is worth more than it was in the future
o Because of inflation and because you can invest it
o Need to calculate how much you make every year on the money
Take the $40 mil and reduce it on the discount or the interest rate
Give the amount of money now that will lead to $40 million in the future
• Rule of 10s and 7s
o Money invested at a rate of 10% compounded interest
Doubles every 7 years
o Money invested at a rate of 7% compound interest
Doubles every 10 years
• Discount Rate
o The lower the discount rate the more money the plaintiff has to pay the plaintiff
o The higher the rate the faster you assume the amount will double
o Lower rate, the longer it will take to double, so you have to give more
• NY State has a statutory rate
o The actual rate that exists at the time is not a reliable rate to use because it
changes over time
• Annuity
o Don’t do annuity, because we want to dispose of cases
• Attorney’s (except in Texas and a few other states) cannot pay you while you
live in pretrial stage
o People have started to loan money against the judgment
This doesn’t have the low interest rates of other loans
This is an investment in the judgment
Create investment pools, have a prospectus, etc. and only invest in the cases
that the attorneys tell them that they will win
Mitigation of damages
• Also, if you have a scar on the leg you could have the cosmetic surgery
o But the patient won’t have the surgery because then only get paid for the surgery
• Don’t have to mitigate if it is life threatening
• And it is life threatening if it requires anesthesia
• McGinley v. US-D admitted liability to a stevedore for an accident, but claimed that P
failed to mitigate his damages by not having surgery and not training for a new job. This
court held that an injured party must make a reasonable effort to mitigate his
damages and the test of reasonableness is a question of fact. In this case P has
continuously submitted to reasonable medical treatment and has already undergone 2
operations; it is not necessarily recommended for P to undergo further treatment.
Additionally, the court which D would have P follow to obtain employment oversteps the
bounds of reasonableness. P has no duty to obtain employment as a checker.
Intangible
121
• Pain and suffering
• Loss of earning capacity
Taxability
• The jury isn’t told that the plaintiff won’t pay taxes on the money because they would
deduct it themselves and don’t want to punish innocent D
• The lawyer pays taxes
• And if there is any punitive damages, you pay on the punitive damages
o But not what you get on the negligence
Collateral Benefits Rule
• Benefits that the P gets are not to be used to benefit the defendant
o For example when P is hurt it costs $25
o He gets full amount of the medical bills
o His employer paid him and that is a collateral benefit, so P gets double paid (gets
the employer pay and pay from D)
• Policy
o You get the Medical benefits because you took out the insurance and paid for it
o Why should defendant pay less if he hits someone that isn’t prepared and doesn’t
have insurance
o Medical insurance now has provisions where you have to pay money to them if you
collect for the injury
Subrogation clause
Damages
• Reducing to present worth
o Add it all up, then reduce with the discount rate
o Income goes up and up, predictive and inflationary increases
• Pennsylvania
o Have said why don’t we simplify, take the salary now and multiply it all out and
then don’t reduce (take today’s salary, multiply it by the number of years)
o Not exactly true, if the inflation is lower, it will come out to less
o Has decided that the speculative of the increase is always problematic
o If the increase is close to the discount it will all balance out equally
o Vast majority don’t do this
o Increases go up every year for inflation
o When we reduce it, we are reducing based on the interest rates
o Interest rates should be close to inflation so it should all balance out
o Come to a similar result
Punitive Damages
• Argued a few weeks ago (Phillip Morris smoking), First case the supreme court has
handled when there is punitive damages in personal injury
• Not sure that the court will take the ratio 9 to 1 or anything like it in this kind of case
• Jury was told to limit the damages to the jurisdiction
• Ratio is enormous something like $76 million to $800k
• Everything in civil procedure applies here
• Punitive damages go to attorneys and not the state because it gives attorneys reasons to
go after these cases
o Some states have rules dividing the punitive between the state and the plaintiff
• Punitive Damages are taxable (they get 35% of this)
122
Strict Liability
To prove Strict Liability: Artificial condition (impoundment), Would cause great danger if it
escaped, And it does escape and causes injuryVictims can’t defend against it
Trespass is a strict liability offense (not absolute liability because there are defenses to the act, if
you are dropped from a plane, it’s not a trespass).
The damage needs to be foreseeable (i.e. a toxic leak might not be foreseeable, back in the day)
Trespass
• Trespass is a strict liability offense, there is no mental state attached
• If you go on someone else’s property, you are a trespasser, even if you think its your own
property, or have a reasonable basis to think its your property
o If you cause any damage you are liable
Trespass is a strict liability defense
• Its not absolute liability, there are defenses
• There are no mens rea defenses
• There are actus reus defenses
o If someone drops you from an airplane, you are not trespassing
• Jurisdictional facts
o If you are charged with assaulting a federal officer, you can’t say that you didn’t
know that they were a federal officer
o If you rob a federally insured bank, can’t say that you thought it was a regular bank
123
• Strict liability element of trespass is that you are on someone else’s property
Rylands v. Fletcher
F: Damn breaks and it floods the subsoil that the reservoir was built on damages the defendant’s
property
P: says that they’re liable. And that they don’t have to show negligence that the water shouldn’t
have escaped the property
D: says no we aren’t liable we are not negligent
H: This is an artificial condition of the property that has a lot of danger. The Plaintiff knows that
the water will cause a huge amount of damage if it escapes and that the people on other
property cannot do anything to protect themselves.
Strict liability applies if there is (1) something on your property, (2) you know it is
dangerous if it escapes and (3) you know that others are dependant on you to take the
appropriate care.
Strict Liability
• Know something on your property
• Know its dangerous if it escapes
• Know people down hill are dependant on you
• [Doesn’t apply to animals on the property that escape]
• Important that the court combined a group of factors, very similar to other settings, all of
them compute to knowledge to the defendant, with helplessness on plaintiff
o Notice to the defendant combined with helplessness to the plaintiff, leads to a
change in law, the change is in the actual substantive elements in the tort
o Change the tort to have not a component of negligence, it is strict liability
o (Increase responsibility to the defendant)
This is like Summers v. Tice with the burden shift, but this is a change to
strict liability
Strict liability – Means that you can’t defend on saying that you tried hard, you can only
defend against a element of a cause of action
Rickards v. Lothian
F: Toilet leaking downs the wall and damaging tapestry in the apartment below
H: Court finds that Rylands doesn’t apply because its not special and everyone uses it
When something is a normal artificial impoundment strict liability doesn’t apply
124
H: Can’t apply strict liability because the defendant didn’t know it could cause damage
Activity
i.e. blasting a foundation
Instrumentality
i.e. dynamite is and a car is not
Condition of use
i.e. racing a car
Damage will need to be foreseeable (i.e. if a plane buzzes a field is it really foreseeable that a
stallion will freak out and trample the fowls, can be argued both ways)
When you do something of substantial social value and everyone does it, its difficult to say that
people are on notice of the danger
• Notice relates to commonality of use
• And the social utility of the use combined with the commonality
• Difficult to say that a normal activity is ultra-hazardous versus just being dangerous or
hazardous
125
Ultra-Hazardous activities:
• Much broader (starts about 1950)
• Not every jurisdiction follows it
• Modernizes Fletcher v. Ryland
• Limitations
126
3. Thing that caused the injury was in the exclusive control of the defendant (Indicated
negligence was within the scope of the defendant’s duty)
• Exclusive custody and control of item
By proving A (specifics of what happened ) you are proving B (proving that D must have done
something that caused injury and what he did must have been negligent)
Mr. Wilson HYPO: Mr. Wilson lives next door to a little boy named Dennis. Mr. Wilson is really
into gardening and has a patch of tomatoes, and a very large area of flowers. Real danger with
tomatoes and flowers - there are a lot of bugs - he buys pesticide and "sprays the shit out of it
all the time" - active ingredient is "chemical". One day he goes outside and Dennis is there
cutting Mr. Wilson's flowers for his mother for Mother's Day. They are extremely hard to grow
and Mr. Wilson was going to use them in two weeks for a competition. Mr. Wilson yells at Dennis
and he runs off. Mr. Wilson goes inside to cool off and goes back outside to spray. He starts
spraying and doesn’t know that Dennis is in the flowers - Dennis suffers lung damage.
What cause of action can his family bring? Strict liability - created high risk because
of an ultra hazardous activity. Negligence.
Legal Defense:
Duty the landowner has to the trespasser regard to knowledge the trespass will be there.
Who has the better case? Mr. Wilson - he wasn’t negligent with the use of pesticides. He used
the pesticides in a reasonable manner. He had no reason to believe that anything else but his
plants were there - he was reasonable by only spraying it on his plants - and had chased off
Dennis who had just left and had no reasonable belief to believe he had come back.
Dennis' case: Mr. Wilson did not exercise adequate care. Mr. Wilson was negligent and he owed
a duty to Dennis because Having seen Dennis there already once a reasonable person would
make sure he was not there again. Mr. Wilson failed to take reasonable care in taking care to
make sure and check to make sure that Dennis had not come back and therefore was not in the
garden.
127
Hazardous care tort - working for Mr. Wilson - 2 problems:
1. Is it common usage or not?
2. Does the value offset the risks? Not dangerous enough and
P argues that this was an ultra hazardous activity and reasonable care on the part of the D was
not enough.
The D will argue reasonable care and common usage-we need gas and everyone has cars with
gas in them.
The court held that the degree of gasoline in the truck is greater than that of any car on
the highway and therefore is not common usage. The trucking company has a non-
delegable duty (can't pass off responsibility) and would lose under res ipsa as well.
HYPO Licensed Exterminator: So strong- used to spray half of a building - someone who was
asleep on other side of building and it went through wall and injured person asleep.
Luthenger v. Moore:
F: Luthenger is sleeping in her store and there’s an apartment behind her. The building behind
her has a bug problem so they hire an exterminator. He uses an insecticide that can only be
used by licensed exterminators. The exterminator didn’t know that it could get through the
walls, thought it could only get through big holes and he checked for those. The insecticide
makes the P sick and have permanent lung damage, she sues.
P: Can’t say negligence so says that its an ultra hazardous activity and strict liability applies.
Says that its not commonly used and its dangerous
D: Can’t say didn’t know that it would escape because that’s a defense to negligence. Says that
this is how everyone exterminates
H: This is not sufficiently prevalent to be common, its not common enough.
To be common, and thus not ultra hazardous, it must be very prevalent.
Hypo:
F: Woman is on a multi-layer highway, a tanker transporting gas gets in an accident and blows
up in front of her.
P: Negligence is that the coupler came apart. Negligence on res ipsa non-delegable duty (1. can
either prove some defendants out or non-delegable duty). Strict liability is that it was a
dangerous activity because it was such a large amount of gas.
D: Not negligence. And that it was common to transport gas, every car did it. Also that everyone
transports gas this way, it’s the common way to transport gas.
128
H: The gas in the car is too different. Also though this is the common way to transport gas, its
not a common activity.
Difference in degree is a difference in kind and a common way of doing something
doesn’t make it common if it is still not a common activity.
Products Liability
SOL runs from the time you discovered the problem or should have discovered it, not from when you buy it.
This particular product is different from the others, the standard is set by the other products, this particular unit
has a flaw
There is strict liability, doesn’t matter how well you tested it. Reasonable care doesn’t matter.
Design Defect
129
Focuses on the product, not the person:
Doesn’t matter how good the design is, Matters how it was designed
Looks at whether the product was defectively designed (negligence)
Common / Deluxe Model – you can have both so long as the common model is safe enough for its purpose.
Warning Issues
Communication Issue
Understandability of the warning
Theory of Mass numbers (Unusual things happen when there is large number)
Warning needs to be sufficient for the life of the product, it would be inadequate if you had a short term
warning (i.e. tag) on a long term product (ladder).
Having too many warnings so that the warning label, makes it unreadable (ineffective communication).
Warnings can be communicated through a warning intermediary, provided that the warning is adequate.
Massachusetts – no warning is ever adequate enough if the product will be used by kids.
Warnings are not assumed to be read, but even if you don’t read the warning you can still sue if it is inadequate.
Definition of a defect
Patent defect – another way of saying assumption of the risk (its an obvious defect)
Comparative Causation – Comparative Negligence
Risk Utility – Same as saying Hand Formula (Cost / Benefit Analysis)
130
State of the Art – Rule of Law
Subsequent repair rule (applies in negligence cases) – evidence of repairs after the accident are not admissible
to make them strictly liable, they can only be used to show the feasibility / viability of alternative designs
Foreseeable Unintended Use – may not be the intended use but it foreseeable that the product could be used
this
Misuse – Opposite of foreseeable unintended use, this is when you purposely misuse the product and it wasn’t
foreseeable that it would be used this way
California decided that this should be a split burden (2 prong test in Cali)
1. Plaintiff has to prove the defect
2. Up to the defendant to prove that it wasn’t unreasonably dangerous after a risk-utility benefit
(Defendant justifies the design)
Naturally occurring items are not defects (i.e. peanut shell in peanut butter) but foreign objects are (i.e. glass in
the peanut butter)
If only sell the deluxe model then people who could afford only the common model wouldn’t buy anything
because they wouldn’t be able to afford the deluxe
Its possible to have a cheaper product that is less safe, so long as its sufficiently safe in and of itself, because if
its at a maximum safety it would be unaffordable.
Essential nature of the product that gives you the benefit also creates the risk. If you do a cost benefit analysis
you can’t get the benefit without the cost and it makes it unavoidable
131
3. Then the manufacturer will sue the employer for their contribution (comparative difference). [Joint and
several liability and comparative and joint tort feasors means that you can get money from both]
Products Liability
• Initially could only sue in negligence
• As time when on more and more was concealed and thus more reliance on the defendant
and the products became more inherently dangerous
• Took a long time to move to strict product liability because of the idea of autonomy and
individual freedom and liberty.
• Product liability now runs to everyone that is injured by the product
• We have strict liability in products
• Manufacture is liable no matter how careful he was
If it’s a service you can’t sue in strict liability, but you can sue in negligence
Statute of Limitations
• In Torts - Runs from the time you discover the problem or should have discovered it
(not when you buy it)
o This is what we use for strict liability
• In Contract - Certain amount of time from the time of purchase
• Property - No SOL
Statute of Repose
• Limits the amount of time you can bring a product liability action, in some jurisdictions
Defect
• Not a defect unless its unreasonably dangerous
o Can’t just have a difference, be different
• Known as “defect unreasonably dangerous”
o Can’t sue for cutting yourself on a sharp knife
132
• Can’t have knives if you don’t have knives that are sharp
• Can’t sue just because the knife is sharp even though its dangerous, would
be ridiculous
• Can’t sue a car manufacturer of a car just because it went fast, and going
fast is dangerous, again this would be ridiculous
• Need to be excessively and unreasonably dangerous
• Patent Defect – Assumption of risk (knew it was defective and used it anyways)
o Classic case of taking a chain saw and using it to cut their toe nails
o This person shouldn’t collect for two reasons:
o 1. nothing wrong with the product
o 2. contrib.
• Comparative negligence – comparative causation
• Up until the third restatement negligence wasn’t in there, but everyone knew that it really
was there
Products liability developed over time because initially individual crafts men made products for a
specific consumer and liability was easy. Person who made it was responsible to the person who
the craftsman sold it to. A third party couldn’t sue. Over time this changed as the store owners
didn’t have as much money as the manufacturers and mass production meant that the person
who purchased the product might not be the one that used it.
Bridge Hypo:
F: Person wants a bridge to go over the stream. The bridge maker says the wood needs to be
coated so it won’t rot. The owner opts not to have the coating. Ten years later the wood rots out
and someone gets hurt.
H: Since the part that rotted is under ground. The person was a licensee so there was no duty to
inspect and thus no duty on the land owner. Defense is no privity, built what client wanted.
No privity used to be a defense, it meant if you were not part of the original contract
you could not sue, can’t go around contractual relationship and sue in tort.
Thomas v. Winchester
F: 1830s guy goes down to the equivalent of a pharmacy and buys some ground up plant herb
for his wife that’s sick, but unfortunately the bottle is mislabeled, its not the herb that he wanted
it’s a poison. Wife gets extremely ill.
H: Court uses an exception to privity rule saying that if the thing that you sell is imminently
dangerous to human life if negligently fabricated then the injured person should be able to sue.
If you know that the thing you sell is imminently dangerous then it gives you special
responsibilities because its specially made and the person can’t find out that its
negligently made until its too late (imminently dangerous to human life.
133
P: Its imminently dangerous to human life
D: No privity of contract, then says that its not imminently dangerous and its similar to
Winterbottom because it’s a wheel.
Products liability
• Negligence of tort
• Discusses how courts can modify the law without admitting that they changed it
• Thomas and MacPherson were both changes
• Cardozo says that he was bound by precedent and that he doesn’t change anything
• Cardozo is arguing on the law
o Poison is mislabeled is imminently dangerous
o Car isn’t as dangerous
• Cardozo alters the articulation from imminently to inherently dangerous
• This is a very big difference, imminently dangerous is mislabeled poison, or a locked rifle
with a blocked barrel, or a power grinder that would fly apart
o Nothing that you can do to protect yourself
• But the car is not necessarily dangerous, if you use it in the normal way its not dangerous
o Scaffold isn’t dangerous if you are 10 feet up, but is dangerous if its 90 feet up
o Says that we always meant inherently dangerous
MacPherson:
• Still can’t sue in strict liability, Allows suit in a negligence case
• Manufacturer only gave an express warranty to the person that they immediately bought
from
• Fact that you can sue for the inherently dangerous items, doesn’t mean that you can sue
in contract
134
Henningsen v. Bloomfield Motors, Inc., 161 A.2d 69 (N.J. 1960)
• 1960 – first time that they held that you could sue in strict liability
• Within 13 years ever state had allowed strict liability in product
• Ever state changed their law
Greenman v. Yuba Power Products, Inc. 377 P.2d 897 (Cal. 1963)
• Part flies off and hits the guy in the eye
• If Yuba goes out of business, its not like we won’t get this product from another company
135
Vandermark v. Ford Motor Co. (Cal. 1964)
If its only property that is damaged, then there’s no strict liability
Pay attention to the little stuff about reconditioning and reselling used goods and
when you
are and are not liable.
Successor Companies are liable for products by the old manufacturer if they are just
continuing the business under a new name. If the new company just acquired the
assets then they are not liable. [If the company is out of business you can still sue if
the new company acquired it in such a way that they are now a successor]
Can still sue the seller under implied warranty of fitness (even though they can’t do
anything about the design of the product)
136
P: Makes a res ipsa argument, but if you can establish that there must have been a defect, you
can use res ipsa. Shouldn’t have broken, and if you can’t figure out how it broke then it must
have broken
Manufacturing Defects
• Have integrity because it is reasonable that manufacturers make all their products the
same to the same standard
Second Collision
• This is the collision that happens with the inside of the car after the accident
• Everything inside the car is much sleeker and softer than it used to be
137
Car accident hit on the side Hypo:
F: P is driving a car and gets hit by on the side, gets severely injured
P: Sues the manufacturer saying that the company had to make the car safe for side impact
crashes, sides weren’t reinforced.
D: Has to make it reasonably safe for crashes. Have design limitations. Went with a crumple
zone because its safest for front collisions which are the most common. Defendant says directed
verdict because if we made the car the way that is being proposed then it would be more
dangerous than if designed the other way.
H: D loses the directed verdict and it goes to the jury who awards for the plaintiff.
Can still get to the jury even if the Defendant shows that the risk utility analysis
weighs in their favor. [Somewhat irrational, just means higher insurance rates]
NJ Court says
• Manufacturer puts these in the stream of commerce for making money and it makes
sense that they should bear the costs because they have the ability to reduce the risks or
be capable of paying the costs
Pharmacy Hypo:
F: Person gets sick from a prescription. Tries to sue the pharmacist.
In California, can’t sue the pharmacist because he works for the doctor, they don’t
have a choice, they can’t select the a better product.
Some jurisdictions hold the pharmacist liable for: 1. Giving too much, 2. A prescription
that negatively interacts with the other prescriptions they are on, 3. a medication that
is only supposed to be taken 1/month and this is the third prescription, 4. Wrong
prescription (quantity or substance). Have a duty to non-negligently distribute the
drugs.
138
H: Patent (obvious) defects aren’t defects at all, they are about assumption of risk and this pole
was a patent defect.
Patent Defects say that they aren’t too dangerous because products have to be
useable. And if the nature of the design is what makes it useable the product won’t be
defective unless it’s so dangerous that it shouldn’t be manufactured at all
Third restatement adopted Micallef: the fact that it is patent is a factor to consider in
foreseeable unintended use
139
A manufacturer is not liable of he makes his product as safe as he possibly can and the
P still purposely circumvents the safety features. [D will claim poor workplace
supervision.]
Definition of a defect
• Defect unreasonably dangerous (2nd restatement)
• Negligently or dangerous designed product (3rd restatement)
140
F: Cop hit and killed by a bullet while where the vest didn’t cover
P: Says design defect, unreasonably dangerous
D: Says that there are 2 designs. The cheaper design (which the police station has) has the
advantage of allowing more movement so people are more likely to wear it because its more
comfortable and that’s safer than not wearing one at all. Further, most bullets come from the
front and it protected against that.
One way of deciding if something is a design defect is to see if it performs as people
expect it to. Or can look at the common / deluxe model analysis.
141
State of the art tends to be what they thought of at the time, not what they could do. Based on
the consumer expectations
• Seatbelt in 1932 Chevy is not defective because the expectation of the consumer
Evidence Rule
• Subsequent repair rule (applies in negligence cases) – evidence of repairs after
the accident are not admissible (p. 718)
o Idea is to encourage people to fix it so that other people won’t get injured
o If fixing it was able to be used against people then people wouldn’t repair things
because they wouldn’t want to admit there’s a safer way to do it
• Tends to be evidence of subsequent design changes to show the design was feasible – this
shows that it was possible to manufacture it differently
Subsequent modification
• Different than subsequent repair
• This is the punch press issue
• This is the manufacturer’s duty to make the product safe for specifically unintended uses
when they have a reason to know it will be used that way
o Hickies on the run is another example
Back to the punch machine when the worker rewires the machine
• Manufacturer is liable if the product is easily modifiable in a way that they know
would make it dangerous
• If you can’t modify it in a way that would make it un-modifiable, then you are
not liable for making it un-modifiable
o It gets modified and then 5/6 years later someone gets their hand punched
o Has to be defective when it left their hands
• Only liable for post sale changes when the post sale changes were induced by
the fact that it was originally defective (i.e. easily modifiable)
o P. 720 – reasonably should have been anticipated by the product seller
142
Court says tough luck to the manufacturer, there was all sorts of expert testimony that
told how it could be designed differently. It’s up to the jury to see if it’s defective or
not.
Warnings
Can make an unsafe product safe with a warning. The warning must be adequate (cannot be on
a removable tag)
Davis v. Wyeth Laboratories, Inc., 399 F.2d 121 (9th Cir. 1986)
F: Vaccine has risk of injury. Accurate warning (1 out of 3 million).
143
Warning isn’t good enough because it wasn’t understanble. D knows that the
consumers aren’t getting properly warned because the message that gets
communicated is “almost never” (The warning intermediaries aren’t giving adequate
warnings). Warning would have been better worded as ~75 cases per year, not 1 out
of 3 million.
Warning Issues
• Communication Issue
• Understandability of the warning
Humidifier Hypo:
F: In 1940s was a bottle with a screw top, in the screw top is a metal coil and you plug it in and
it got the water boiling and the steam came out the hole in the top. Tend to use them in rooms
with elderly people and rooms with children. Put the vaporizer by the kid, might put it on a chair
and the kid gets up and the water scolds the kid.
P: Defective product – the alternative is using a plastic bottle
D: Old people want a top that comes right off, they don’t have the hand strength to unscrew the
top
Defective product, foreseeable unintended use.
Humidifier Hypo 2:
F: So now will need a latch on the top, so the top won’t come off. Get complaints from the
elderly that they can’t handle the latch. Going to make an old person model. This will have all
sorts of warnings not to use near kids. So now grandma buys it and uses it near the grandkid
when he visits and the same thing happens
Massachusetts Court held that the warnings weren’t adequate because no matter where the
warning was you would use it near kids sometimes (Vassallo v. Baxter Healthcare Corp.)
• Certain products can have warnings and not be sufficient because no matter what people
aren’t going to follow it
144
F: Can of tile glue and you put it on the floor and put the flooring tiles on it. Comes in a can like
a can of paint. One of the warnings says “flammable, do not use near an open flame”. Guy
decides that he needs to upgrade the cabin that he uses on the weekend, old cabin, old
appliances everything. He fixes up the floor and starts putting the stuff on with the tiles. The
whole thing blows up severely injuring. The pilot light in the stove was in side and the fumes
were flammable and they got out and the vapors ignited .
P: Defective product, the warning was inadequate because the degree of flammability of the
vapors was not adequately conveyed because of the manner that this could be used (in the
kitchen near a stove, or a concealed flame in the water heater in the basement). If it was that
flammable they should have articulated what else could start the flame.
D: Warnings were on the product.
Warnings need to sufficient to warn of the full extent of the danger.
Inadequate warnings
• Long term product with a short term warning (on a tag or something)
• If you have too many warnings so they are so overwhelming that no one reads them
o Can assume that the warnings are read, but even if they weren’t and they are
inadequate, the P can still sue.
145
Jury Nullification
• When the jury finds contrary to law, they are nullifying or rejecting the subsistent law
o i.e. in England where the difference between a misdemeanor and a felony was
stealing 1 additional pound, the jury would often find people who stole more than a
pound guilty of the misdemeanor b/c they didn’t want to convict of a felony.
Can’t do anything about the mom because she wasn’t negligent in her care (Her conduct may
have been foolish). The defendants have a duty to keep her from practicing medicine.
Plaintiff’s Conduct
• Contributory negligence and Assumption of the risk, Patent defects, modifying machines
are all plaintiffs conduct
• Can have two different meanings / implications
o 1. Misuse of the product
Daly v. General Motors Corp.
Rule of law that causes problems: Requirement that manufacturers that
146
design products that are safe for foreseeable unintended uses
o 2. Foreseeable misuse Comparative law in the area of products, called
Comparative Causation
There’s a defect, and the plaintiff wouldn’t have been hurt if he didn’t do
anything
Dissenting judge in Daly says that once you permit comparative
constructions in the tort/definition of product defects, you’ll come up with
baby splitting rules
o Will come up with a finding that the product was defective as
well as misuse
o 3. Can be something wrong with the product and something wrong with what the
product did
Clear demarcation between a product that is defective and one that isn’t
• Defective product – injures someone because its defective and its used in a foreseeable
unintended use
• Non-Defective product – injures someone because it was misused
o Used in an improper dangerous way
147
What kind of conduct do we compare? What kind of conduct don’t we compare?
• Have the case where they said that it is as if you read the warnings
• If the defect isn’t communicated then the manufacturer should be liable if there’s too
much warning, because the most important warning isn’t read
• Assume that you read the instructions and then look to see if the warning was adequate
Ayers v. Johnson & Johnson Co., 818 P.2d 1337 (Wash. 1991)
Presume that an adequate warning would have made a difference (this is like Lone
Palm Hotel) can’t defend on the ground that the warning wouldn’t have made a
difference.
LeBouef v. Goodyear Tire & Rubber Co., 623 F.2d 985 (5th Cir. 1980)
F: Car is going over 100 miles per hour& driver is drunk. Claimed defect is in the tires. There
was a warning
P: Bad warning, the manual didn’t state whether the tires on the car were or were not of high
speed caliber. Not an adequate warning. It also assumed you would investigate to make sure the
tires were the right type.
D: says he was drunk and he was speeding
P: Not just foreseeable, but expected that it would be driven at over 85mph because of the
allure of the speed of the car
D: says misuse of the product (as far as being drunk), theory is that if he wasn’t drunk he
wouldn’t have been going 105mph
P: says that everyone speeds and everyone drives after drinking. Can’t sell a car that’s only safe
for someone sober to drive. Foreseeable undesired behavior.
Drunk driving and speeding are foreseeable misuses of cars. Cannot make vehicles
that are only safe for sober, law abiding citizens to drive.
148
standard of care
o Means that the plaintiff’s conduct is separate conduct to reduce liability when it is
the kind of conduct that justifies reducing liability
o Looks at whether it was foreseeable unexpected use or not
• (b) The manner and extent of the reduction under Subsection (a) and the apportionment
of plaintiff’s recovery among multiple defendants are governed by generally applicable
rules concerning responsibility
Kassouf v. Lee Brothers, Inc. 26 Cal. Rptr. 276 (Cal. App. 1962)
F: Guy eats the worms and maggots (doesn’t look at the bar while eating it)Question is whether
this would violate the responsibility to eat in a normal and prudent manner? Or whether the
normally expected rules of the second restatement
D: says that anyone who ate it would have notice, and the only people who didn’t notice it would
be negligent
H: P was under no duty to discover latent defects in D’s product
Plaintiffs don’t have the duty to discover latent defects in products.
149
H: The warning is insufficient because it doesn’t say anything about explosion and it isn’t severe
enough to give people sufficient incentive to have a guage.
Warnings that don’t detail the most severe consequence often are not sufficient
because they do not give a significant incentive to take care.
150