Outline (NU) - 10/14/12 2:57 PM / 1

III.

Duty and Proximate Cause Duty or Proximate Cause Both are limitations on liability, even if Breach and Cause-in-fact have already been established Duty is there a relationship between the parties that makes it unfair to hold the injurer liable? Proximate Cause is there something in the chain of events that makes holding the injurer responsible bad policy? Foreseeability and Liability Palsgraf v LI Railway Co (p.223) Guards cause package containing reworks to be dropped, injuring woman at end of platform . Risks dene duty : When you push someone onto a train, you are risking that they will be hurt and owe him a duty, but you cant foresee that the person down t he platform will be hurt by it. Negligence in the air. McCain v Florida Power Corp Had someone from power company mark safe places to trench, and then was injured when he struck a cable in the safe area. Foreseeability in duty is a matter of law Did the defendant create the zone of risk? Legal duty arises whenever a human endeavor creates a generalized and foreseeable risk of harming others. (to the extent the harm created relates back to that risk. Foreseeability in P.C. is a matter of fact To what extent did defendant cause this particular harm Proximate : prudent human foresight would leave one to expect that similar harm is likely to be substantially caused by the specic act in question. Duty Different types of duty Palsgraf : duty to all whom ones conduct might foreseeably injure Hegyes: Foreseeability where a defendants conduct has created a risk Dykema: Links duty to the relationship between P and D when someone else has created the risk Graff & Eisel : when an actor doesnt normally owe that type of defendant a duty to exercise reasonable care Special Relationships Hegyes v Unjian Enterprises Inc Woman gets tted with shunt after a car accident, shunt causes premature birth, daughter sues driver of car accident. Persons are required to use ordinary care for the protection of those to whom harm can be reasonably foreseen Foreseeable does not mean mere possibility but likely to occur Dykema v Gus Macker Enterprises A thunderstorm caused a branch to fall on a guy at a bball

Outline (NU) - 10/14/12 2:57 PM / 2

tournament. There is a duty if the relationship between the actor and the injured person gives rise t oa legal obligation on the actors part for the benet of the injured person Special relationships: carrier-passenger, innkeeper-guest, employer-employee, landlord-tenant, and invitor-invitee. Factors: business relationship? Paid a fee? Contractual relationship? Did plaintiff lose ability to protect himself? Graff v Beard p.233 Graffs host party, attendee gets drunk and crashes his car. No duty from hosts to stop people from driving home drunk. Factors: social, economic, and political questions, extent of the risk, foreseeability and likelihood of injury weighed against the social utility of the actors conduct, magnitude of the burden of guarding against the injury, consequences of placing the burden on the defendant. Eisel v Board of Education p.236 Students report murder suicide pact to school counselor, who did not notify students parents. Factors to be considered in nding a duty : Foreseeability (most important), degree of certainty that the plaintiff suffered, moral blame attached to the defendants conduct, policy of preventing future harm, extent of the burden, availability/cost/prevalence of insurance for the risk involved (quoting Village of Cross Keys, Inc v United States Gypsum) Determining Proximate Cause Question of Fact Common instruction: A proximate cause is one which in natural and continuous sequence, unbroken by any efcient intervening cause produces the injury and without which the result would not have occurred. Directness Is there a direct connection between the act and the injury? In re Polemis and Furness Benzine leaked, a rope bumped a board, which fell and ignited the ship. It must just be foreseeable that an act will cause some kind of damage; then the fact that the damage it in fact causes is not the exact kind of damage one would expect is immaterial, so long as the damage is in fact directly traceable to the negligent act. Laureano v Louzoun Landlord didnt provide heat, and woman burned herself boiling water. The act of boiling water was not the direct cause, but the intervening act of banging the boiling pots of water together. The injuries must normally have been expected to ensue from the negligent conduct.

Outline (NU) - 10/14/12 2:57 PM / 3

Foreseeability Proximate cause the possibility of that harm was within the range of risks that supported the original characterization of the defendants conduct as negligent. Tiedler v Little p.247 Students lost control of a car while trying to jump start it, it jumped a curb and pinned a student against a brick wall, which was negligently constructed, and collapsed, killing the student. The general-type accident which occurred in this case namely the walls faulty construction hurting someone was entirely within the scope of the danger created by the defendants negligence, and was a reasonably foreseeable consequence of such negligence. McCain v Florida Power Corp p.251 (see above) Prudent human foresight would lead one to expect that similar harm is likely to be substantially caused by the specic act or omission in question. Schafer v Hoffman p.255 Eggshell plaintiff (woman struck by car had pre-existing issues) A tortfeasor takes his victim as he nds him. The thin skull doctrine says that foreseeability is not an issue in determining the extent of injury suffered, while the shabby millionaire rule declares that foreseeability is not an issue in determining the extent of damages that the injury caused. Petition of Kinsman Transit Co p.260 Ice hit a boat, which hit another boat, which hit a bridge, which caused ooding. Where the damages (a) resulted from the same physical forces whose existence required greater care than was exercised and (b) were of the same general sort that was expectable, unforeseeability of the exact developments and of the extent of the loss will not limit liability. Substantial Factor Test Whether the contribution of a partys act was relatively important compared with other but-for causes in producing the harm Generally ignores foreseeability American Truck Leasing Inc v Thorne Equipment Company p.264 Trash accumulates, catches re, during demolition, the elevator shaft collapsed on nearby buildings. Jury decision Was it too far removed factually and chronologically from the harm? Was the negligence still in operation at the time when damages occurred. Restatement 431 Something is a substantial factor if:

Outline (NU) - 10/14/12 2:57 PM / 4

Number of other factors which contribute Whether the actors conduct has created a force which is in continuous active operation up to the time of the harm Lapse of time Chelcher v Spider Staging Corp p.266 Man works in poorly rigged spider scaffold all day and damages his back, blames failure to warn. Failure to warn was only a minor contributor, but there were other more substantial factors, so no proximate cause. Taylor v Jackson Huge pile up, 7 possible causes. (From the restatement, 433) The more time that goes by, the more intervening factors there are (which we might not be able to enumerate or might not have evidence of) But if its obvious that the inuence of the negligence is still a substantial factor, lapse of time wont prevent it from being the legal cause. Combined Tests The above approaches can sometimes be combined Sumpter v Moulton p.272 City tells him he must mow weeds, has heart attack while mowing, bypass surgery was inevitable but the mowing triggered. Substantial factor analysis, and then foreseeability test. Superseding and Intervening Causes Superseding act is an intervening act that breaks the chain of causation from the original act and prevents that rst person from being liable Foreseeability of the intervening act is crucial for it to be superseding Focus must be on the foreseeability of the intervening act rather than the foreseeability of the harm that resulted Price v Blaine Kern Artista Inc Man gets punched wearing top heavy W. mask The injury wasnt foreseeable but that a person would get upset seeing a political mask was. The chain remains unbroken when the third partys intervening intentional act is reasonably foreseeable. McClenahan v Cooley Man leaves keys in the ignition, thief kills whole family with car. An intervening act will not exculpate the original wrongdoer unless it appears that the negligent intervening act could not have been reasonably anticipated . In most states, (but not all), an intervening criminal act is superseding. Weems v HyVee Food Stores Woman slips on wet oor, gets rare spinal meningitis from bad epidural block. In order for an intervening act to become a superseding cause, it must not have been a normal consequence of the original

Outline (NU) - 10/14/12 2:57 PM / 5

tortfeasors act or must not have been reasonably foreseeable. Medical costs that arise out of an injury even if the medical care is negligent are foreseeable. Corbett v Weisband Multiple operations on knee by different doctors, one dr. gives total knee replacement which was highly extraordinary choice. Restatement 447 An intervening negligent act does not make it a superseding cause of harm if: The actor should have realized that a third party would so act Reasonable man would not regard it as highly extraordinary that the third person had so acted The intervening act is a normal consequence of a situation created by the actors conduct and the manner in which it is done is not extraordinarily negligent. Reasonable minds could (usually) differ about whether something is extraordinarily negligent so its a jury question Unforeseeable exacerbation of damage dont tend to break the causation. Unforeseeable instances of damage dont tend to break the chain of causation.

IV. DEFENSES Bilateral Care Types of bilateral care Contributory negligence No matter how small plaintiffs negligence, it was a complete bar to recovery Modied comparative negligence Plaintiff is barred from recovery only if Ps percentage of responsibility is greater than 49% or 50% (depending on Jur) Pure comparative negligence P is barred from recovery only if he is 100% responsible Bilateral Care and Contributory Negligence Contributory negligence No matter how small plaintiffs negligence, it was a complete bar to recovery Modied comparative negligence Plaintiff is barred from recovery only if Ps percentage of responsibility is greater than 49% or 50% (depending on Jur) Pure comparative negligence P is barred from recovery only if he is 100% responsible Buttereld v Forrester D negligently left a pole in the road, P was riding his horse too fast to see it and was injured. If P was negligent, hes entirely at fault. Davies v Mann P negligently left donkey in the road, D hit and killed it

Outline (NU) - 10/14/12 2:57 PM / 6

The D could have avoided hitting the donkey through proper care, so he is liable for that negligence. Otherwise people might justify running over a person lying on the road even if he has the opportunity to do otherwise. Last clear chance doctrine who has the last clear chance to avoid the accident Wright v Norfolk and Western Railroad p.294 A driver wasnt paying attention and drove over a railroad track which wasnt properly marked. A defendant has the burden to prove by the greater weight of the evidence that the plaintiff was negligent and that such negligence was a proximate cause of the plaintiffs injuries. (See Bilateral Care notes in Perspectives) Comparative Negligence McIntyre v Balentine (p.298) D hit P, both were drinking, D was speeding. Rationale for contributory negligence was that the plaintiff should be penalized for his misconduct, should be deterred from injuring himself, his negligence supersedes the defendants negligence. The 49% rule ameliorates the harshness of the common law rule while remaining compatible with a fault-based tort system. Dobson v Louisiana Power and Light Company (p.301) Tree trimmer electrocuted when his metallically reinforced rope hit a power line. If both parties could have alleviated the risk, the party for whom it would have been less burdensome to do so is more at fault than the other. Watson v State Farm (p.303) Determining percentages of fault: whether the conduct resulted from inadvertence or involved an awareness of the danger, how great a risk was created by the conduct, the signicance of what was sought by the conduct, the capacities of the actor, whether superior or inferior, any extenuating circumstances which might require the actor to proceed in haste. (Xi* - Xi) . (Xi*-Xi) + (Xv* - Xv)

Xi* = Efficient level of injurers care Xi - injurers actual care Xv* = Efficient level of victims care Xv= Victims actual care Difficulty in using this formula = quantifying level of care One way to do that is to use costs - how much would it have cost to get up to the efficient

Outline (NU) - 10/14/12 2:57 PM / 7 level of care? How do the five factors work with the formula? Awareness - if you know what the risk is, it makes it cheaper to take care of it Risk - Factors into the efficient level of care Significance - When the person is engaged in a conduct we want to encourage, we don't want to impose too high a liability Capacity Emergency - very hard to provide care so we'll expect less Jensen v Intermountain Health Care p.305 Blame was split among three parties, plaintiff was less than 50% negligent but neither of the other parties was more than 50%. If the plaintiffs negligence was compared to each of the defendants negligence individually, the consequences would be that the more defendants who inict an injury, the less likely the plaintiff would recover. Defendants negligence should be grouped when compared to the plaintiffs. Coleman v Hines (p.308) P drank with D and then got in car with him, was killed. D not responsible because Ps negligence reached the same level as Ds negligence Last clear chance doctrine doesnt apply, but here are the rules: Plaintiff by her own negligence placed herself in a position of peril which she could not escape; defendant saw or should reasonably have seen the perilous position of the plaintiff; defendant had time and means to avoid the accident; defendant failed to use evey means at his command to avoid impending injury to plaintiff. Downing v United Auto Racing Association (p.311) P walked across track of car race. Can ordinary negligence offset willful and wanton misconduct? Ps negligence should be considered against willful/wanton conduct Mitigation Unreasonable failure to mitigate damages can be a factor in apportioning fault Miller v Eichhorn (p. 335) Car accident, woman didnt follow doctors advice Failure to mitigate damages should be considered in apportioning fault Klanseck v Anderson Sales & Service Inc (p.336) P opted not to have diagnostic tests done which were suggested by doctor. Even of evidence of failure to mitigate damages of weak, a jury instruction is appropriate.

Outline (NU) - 10/14/12 2:57 PM / 8

Law v Superior Court (p.337) Not wearing seatbelts, thrown through closed sunroof. Fault includes unreasonable failure to mitigate damages Issue : is a plaintiff who does not wear a seat belt at fault for injuries enhanced or caused by failure to use the belt? Proof of failure to wear a seat belt may be introduced as evidence as to mitigation of damages (most jurisdictions have rejected this holding) Assumption of Risk Express assumption of the risk Sometimes an express agreement to forgo a right to sue will bar a plaintiff from recovery for defendants negligence. Wont be enforced when violates public policy for factors discussed in Tunkle. Implied assumption of risk no explicit agreement but the plaintiff has acted as if he or she was willing to encounter the risks presented by that negligence. Waivers Wagenblast v Odessa School District Kids signed waivers to participate in sports Tunkl v Regents of UC test: Does the agreement concern an endeavor of a type generally thought suitable for public regulation? (otherwise we dont want to get interfere with private contracts) Is it a matter of great importance to the public (do people even have the choice to opt out?) Is it willing to perform the service for any member of the public who seeks it (who meets certain established standards) Party seeking to enforce the waiver possesses a decisive advantage of bargaining strength against those seeking its services. Its a standard contract which doesnt allow the signor to opt out and pay more not to sign the waiver (ie a form contract) Person or property is placed under the control of the furnisher of the services (if the ability to avoid injury is in the hands of the injurer, we want to make sure he has the incentives to do so) If the release is against public policy, it is also against public policy to say that the plaintiff has assumed the risk. Turnbough v Ladner Scuba waiver Theyre disfavored but enforceable The waiver must be clear and precise about the extent to which a party intends to be absolved from liability, broad general waivers of negligence are not okay.

Outline (NU) - 10/14/12 2:57 PM / 9

When the waiver is a preprinted contract with general waivers, the terms should be strictly construed against the party seeking enforcement. Implied Assumption of Risk Whether the plaintiff actually knew and appreciated the risk created by the defendants wrongful conduct and voluntarily accepted the risk Defendant must prove P had subjective actual knowledge of the risk, has subjective actual appreciation of its nature and extent, and voluntary accepted it. Schroyer v McNeal Holiday Inn rear sidewalk not shoveled but the P saw the ice and snow and decided to walk on it anyway. Rst 426 The same conduct by the p may amount to both assumption of risk and contributory negligence Conduct in accepting the risk may be unreasonable and therefore negligent Even after accepting an entirely reasonable risk, he may fail to exercise reasonable care for his own protection against that risk (some jurisdictions, like Maryland, add it was objectively unreasonable for the plaintiff to expose herself to the risk.) This raises incentives to warn but lowers incentives to prevent injury (on the Ds part) Davenport v Cotton Hope Plantation (p.330) Floodlight at the bottom of the stairs werent working for months, guy used them anyway and fell on the stairs It doesnt matter that his choice wasnt necessarily unreasonable because this jurisdiction doesnt require that fourth element. Are assumption of risk and contributory negligence the same? Rhode island: assumption of risk is a subjective standard, while cont. neg. is an objective standard West Virginia: assumption of risk is not compatible with comparable negligence and is only a bar to recovery if the negligence in assuming the risk is greater than the defendants negligence. Ruling : Plaintiff is not barred from recovery by the doctrine of assumption of risk unless the degree of fault arising therefrom is greater than the negligence of the defendant. V. PRODUCTS LIABILITY Dangerous Activities Sometimes when you engage in an activity that is non-natural or exceedingly hazardous, you will be held strictly liable, even if you are not negligent. In other words, the elements are duty, harm, and cause. Certain inherently dangerous activities are subject to strict liability Clark Aiken Company v Cromwell Wright Company (p.643)

Outline (NU) - 10/14/12 2:57 PM / 10

Water stored behind a dam on Ds property was released and owed onto Ps property; D didnt know about the shafts and were found to be not negligent. 519 someone who carries on an abnormally dangerous activity is subject to liability for harm resulting from that activity, even if he has exercised the utmost of care. Examples : storing anything on property which is likely to do mischief if it escapes, blasting, wild animals Klein v Pyrodyne Corp (p.648) Fireworks were misred and injured onlookers 6 point test of 520 Existence of high degree of risk of harm to the person, land, chattels of other Likelihood that the harm that results from it will be great Inability to eliminate the risk by exercise of reasonable care Extent to which the activity is not a matter of common usage Inappropriateness of the activity to the place where it is carried on Extent to which its value to the community is outweighed by its dangerous attributes Doesnt need to meet all the requirements Products Liability Privity, Consent and Risk Sharing At common law, only direct customer of a manufacturer could recover Then strict liability and the right for people who lacked contractual relationships with the manufacturer to sue the manuf. were pro-plaintiff developments MacPherson v Buick Motor Company Wheel collapsed, not built by Buick, sold through dealership. If a manufacturer puts a product on the market to be used without inspection by its customers, and he is negligent, where danger is to be foreseen, a liability will follow. The requirement of a contractual relationship is not necessary for liability But if the manufacturer knows the next person is going to test it, he doesnt have a duty Escola v Coca Cola Bottling Co (p. 660) Bottle of coke explodes in waitresss hand (opinion concurring in judgment) Even if there is no negligence, public policy demands that responsibility be xed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market. The manufacturer is best suited to do so. Greenman v Yuba Power Products, Inc 2 years after buying a product, it malfunctions and injures him. Even if a plaintiff does not give timely notice of breach of warranty to the manufacturer, his cause of action based on the

Outline (NU) - 10/14/12 2:57 PM / 11

representations contained in the brochure was not barred. This is because a consumer is not steeped in the business law he would have no way of knowing that he should contact this manufacturer, who he has never dealt with. Implicit in a machines presence on the market is a representation that it will safely do the jobs for which it was built. Restatement (2d) 402 : Special Liability Of Seller Of Product For Physical Harm To User Or Consumer One who sells any product in a defective condition unreasonably dangerous is subject to liability for physical harm to the person or property if: Seller is engaged in the business of selling the product It is expected to (and does) reach the user or consumeGner without substantial change to the condition in which it is sold And liability persists despite: The seller exercising all possible care The user or consumer not purchasing the product from the seller or entering in a contractual relationship with him Restatement (3d) 1 : Liability of commercial Seller or Distributor for Harm Caused by Defective Products One engaged in the business of selling or distributing products, who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect. Restatement (3d) 2 : Categories of Product Defects A product is defective when at the time of sale or distribution it contains a manufacturing defect, is defective in design, or is defective because of inadequate warnings or instructions. Manufacturing defect : the product departs from its intended design even though all possible care was exercised in the preparation and marketing Design defect : foreseeable risks of harm posed by the product could have been reduced by the adoption of a reasonable alternative design Inadequate instructions or warnings : foreseeable risks of harm posed by the product could have been reduced by provision of reasonable instructions or warnings Manufacturing Defects Whether a particular unit made by the defendant conformed to the defendants own design choices In re coordinated latex glove litigation Latex gloves had excess latex residue on them which caused allergies If a manufacturer is looking into a new method of making things, but in the mean time continue to use their old method (assuming the old method is not negligent) then the product in question

Outline (NU) - 10/14/12 2:57 PM / 12

should be compared to the old method for a manufacturing defect claim. Myrlak v Port Authority of New York and New Jersey Obese man had been sitting in chair for two hours when it cracked and fell apart. P must prove that the product was defective, that the defect existed when the product left the manufacturers control, and that the defect proximately caused injuries to the plaintiff, a reasonably foreseeable or intended user. Is res ipsa loquitor an appropriate standard in products liability? Restatement (3d) 3 : Products Liability It may be inferred that the harm was caused by product defect without proof of a specic defect when the incident: Was the kind that normally occurs as a result of a product defect Was not solely the result of causes other than product defect existing at the time of sale or distribution Design Defects and Consumer Expectations Two types of tests (see discussion on page 679) Consumer Expectation test Was this product designed to be less safe than the ordinary consumer would expect it to be? Arises from warranties, sounds like strict liability Risk Utility test Hand formula application Morton v Owens Corning Fiberglass Corp (p.678) Man got mesothelioma from exposure to asbestos Discussion of two risk benet analysis Consumer expectation test What would the reasonable consumer expect the product to do Use this when: No complicated design considerations, obscure components, esoteric circumstances Failure was beyond the minimum safety assumption Risk-benet test Use this when: Consumer doesnt have enough knowledge to have a reasonable expectation Might also be reasonable when a danger is open and obvious so wouldnt meet the consumer expectation test The jury can decide in hindsight whether the

Outline (NU) - 10/14/12 2:57 PM / 13

products design had excessive preventable danger People who worked with asbestos were capable of creating minimal expectations as to how safe the product was Warner Fruehauf Trailer Co v Boston (p.682) A liftgate malfunctioned and fell on the P. Risk Utility test the plaintiff must Show the risks, costs and benets of the product in question and alternative designs Show that the magnitude of the danger from the product outweighed the costs of avoiding the danger Relevant factors to risk utility test: Usefulness and desirability of the product Likelihood that it will cause injury and probably seriousness of the injury Availability of a substitute product Manufacturers ability to eliminate the unsafe character without impairing its usefulness or making it too expensive Users ability to avoid danger by exercising care in using the product Users anticipated awareness of the dangers inherent in the product and their avoidability, because of public knowledge or warnings Feasibility on the part of the manufacturer of spreading the loss through insurance Denny v Ford Motor Co (p.687) SUV rolls over Whether if the design defect were known at the time of manufacture, a reasonable person would conclude that the utility of the product did not outweigh the risk inherent in marketing a product designed in that manner. Use of 7 factor risk utility test Mandatory proof of a feasible alternative design Third restatement requires proof of a reasonable alternative General Motors Corp v Sanchez Gear mis-shifted and killed Ps predecessor An alternative design must substantially reduce the risk of injury and be both economically and technologically feasible Ps do not have to build and test an engine to test the plan, P just has to prove a safer alternative design capable of being developed, which can be done through qualied expert testimony, even though the expert has produced no prototype.

VI. NUISANCE Public and Private Nuisance Public Nuisance - Protects interests common to the public, such as the publics

Outline (NU) - 10/14/12 2:57 PM / 14

health, safety, comfort, and convenience Private Nuisance - Protects a possessors interest in use and enjoyment of his or her land Nuisance can be intentional, negligent, reckless, or negligent per se conduct. Requires proof that the interference with the interest was unreasonable Petsey v Cushman Man buys digestive system which malfunctions and produces odors. Was the defendants use of his land reasonable? Restatement (2d) 822 A plaintiff must prove: Invasion of plaintiffs use and enjoyment of his property Defendants conduct was the proximate cause of the invasion Invasion was either intentional and unreasonable, or unintentional and the defendants conduct was negligent or reckless Some level of interference is to be expected in society but is the interference beyond that which the plaintiff should bear given the circumstances without being compensated Focus is on the reasonableness of the interference and not the use that is causing the interference Armory Park Neighborhood Assn v Episcopal Community Services in Arizona Community center feeds homeless people who ruin nearby property Restatement 821 A public nuisance is an unreasonable interference with a right common to the general public Circumstances that may sustain a holding that an interference with a public right is unreasonable include: Whether the conduct involves a signicant interference with the public health etc Whether the conduct is proscribed by a statute, ordinance or administrative regulation Whether the conduct is of a continuing nature or has produced a permanent or long lasting effect A business which is lawful may nevertheless be a public nuisance if it unreasonably and signicantly interferes with the public health, etc. Coase, Calabrisi, and Remedies Boomer v Atlantic Cement Co Cement factory worth $45mil created $185,000 worth of nuisance. Injunction granted, which would be vacated upon payment of the permanent damage to the plaintiffs. (Rule 3: court sets the price) Spur Industries v Del E Webb Development Co D develops land right next to an expanding feedlot and then sues for nuisance Courts want to protect the public interest but they also want to protect the operator of a lawful (albeit noxious) business from the result of a knowing

Outline (NU) - 10/14/12 2:57 PM / 15

and willful encroachment by others near his business. Basically a rule 2? Kinda. Its a nuisance, so he has to move, but Spur has to pay him for the injunction. Calabresi Two questions Entitled to be pollution free, or entitled to pollute? Property or Liability (or Inalienability) Property rule is an absolute right (
What if we dont know how much the polluter values it? Then rule 3 will lead to efciency. What if we don't know how much the residents value it? Then rule 4 will lead to efciency.

Enforcement: Entitlement v Property

Resident Rule 1 (they have to stop but they can buy out your injunction) Rule 3 (They can continue polluting but they have to pay you damages) (court sets the amount) Idea: you have a right to clean air and you can't give it away.

Polluter Rule 2 (you have a right but the other side can pay you not to do it) Rule 4 (you can make the polluter shut down as long as you compensate them for shutting down) (court sets the amount)

Liability

Inalienability

Coase theory when trade in an externality is possible and there are no transaction costs, bargaining will lead to an efcient outcome regardless of the initial allocation of property rights. eventually, the right to <nuisance> would end up with the party that was able to put it to the most highly valued use. Primary theory: it doesnt matter who is assigned the property rights to begin with, it will inevitably work itself out However, transaction costs DO exist, and that factors in to the analysis A decision as to who is the wrongdoer is only valid if it selects the person who is the better cost avoider All you need is a clear denition of who has a right to do what and the market will take care of the problem. My own thoughts: Coase makes sense in theory, but its hard to imagine there being no transaction costs. If this is the ultimate goal of the court, then settlement is preferable to court Uneven information punishes parties who dont have access to as much information

Outline (NU) - 10/14/12 2:57 PM / 16

Bargaining with large groups typical counterproductive group behavior (eg the prisoners dilemma) that prevents rational decision making

VII. DAMAGES Compensatory Damages Equal the value of the harm actually caused General or specic General : Noneconomic damages which are difcult to quantify (pain and suffering) Special: Economic damages for readily calculable types (past and present medical expenses) Past or anticipated future harm When the victim has died, survival or wrongful death benets Punitive Damages Serve to punish or provide extra deterrence if the defendant acted with a bad motive Nominal Damages Token amounts signifying that the defendant committed an intentional tort Valuing Life and Living Gunn v Robertson (p.574) Jury awarded extraordinarily low damages
Jury awards are only going to be overturned if they are clearly wrong. The standard isn't that the jury is way off, the standard is that the jury is wrong. Medical treatment - any medical care given in good faith should be paid.

Future medical expense is more speculative Reasonable damages include: past (any in good faith) and future medical expenses (necessary and inevitable), past lost wages (Prove length of time missed, wages), future loss of earning capacity (medical evidence that a residual disability related to the accident exists) Jordan v Baptist Three Rivers Hospital (p.579) Are claims for loss of spousal and parental consortium in wrongful death cases viable in Tennessee? Survival statutes allow collection of benets that would have been recovered by the victim Wrongful death statutes create a new cause of action in favor of the survivors of the victim for their loss Tennessee has a wrongful death statute which allows for two separate types of recovery: Recovery for damages sustained by the deceased (medical expenses, physical and mental pain in suffering, funeral expenses, lost wages, loss of earning capacity) Recovery of incidental damages suffered by the decedents next of kin (expectancy of life, the age, condition of health and strength, capacity for labor and earning money through skill etc etc p. 580) If loss of consortium is a valid claim when the person is only injured, why should the defendant be excused from liability just because he had the good luck to kill the person.

Outline (NU) - 10/14/12 2:57 PM / 17

Wrongful death statutes include consortium claims in measuring the pecuniary value of a deceaseds life Rael v F&S co Boy was injured by reworks and subsequently suffered headaches
When injuries are not obvious, there has to be expert testimony. Similar to malpractice rule. Jurors can't judge based on their experience. Giant Food Inc v Sattereld Ms. S slipped and fell, lawyer suggested per diem calculation There is no evidentiary basis for converting pain and suffering into monetary terms. The per diem argument is not evidence but merely a suggestion. Loth v Truck-a-Way Corp Evidence admitted that plaintiff was athletic, was hard working; now couldnt do sports and didnt want to have sex/babies anymore Witnesses may not express subjective opinions on what kind of pain and suffering is appropriate , nor can an expert supply a formula for computing the value of human life.

Special Damages Moody v Blanchard Place Apartments Two economists offered testimony as to how much his future lost income would be, and because they were both reasonable, its ne that the jury picked an amount somewhere between. Kaczkowski v Bolubasz Automboile accident K was killed Jury returned a verdict for 30k for impairment of future earning Two issues: impact of ination and impact of increased productivity natural performance (the latter two are too speculative to be admissible scheduled raises are okay but nonscheduled but assumable ones are not) Three approaches to ination/discount Traditional Ignores future productivity and future ination because theyre too speculative This court rejects Middle Ground The factnder can consider productivity and ination but no expert testimony This court rejects, expert evidence is necessary. This doesnt begin to help the problem of speculation Evidentiary approach Allows experts to talk and allows factnders to evaluate their ideas Feldman standard Most types of relevant evidence are allowed to be introduced to the jury (grades, expressed goals) Bealieu standard Would consider automatic scheduled promotion but not nonscheduled bonuses

Outline (NU) - 10/14/12 2:57 PM / 18

Punitive Damages Punish tortfeasor Different standard of proof Requires clear and convincing evidence rather than preponderance of evidence Theres a range of conduct/culpability wrong bad criminal the further you go, the more proof that is required Peete v Blackwell (p 607) Dr. hits nurse on arm and cusses at her, $1 damages, $10,000 punitive Alabama standard act was wrongful and had attending aggravating circumstances (not just wrong, wanton) Shugar v Guill (p 608) Men get into stght after comments about Ps cheapness Imputed malice showing that someone hit you is enough to show malice Express malice showing of personal ill will toward the plaintiff which activated or incited a defendant to commit the assault State Farm Mutual Automobile Insurance Co v Campbell (p. 610) Compensatory damages of 1 million, punitive of 145 million, excessive? You cant use punitive damages to punish a company for its activities in other states when the policy is not illegal in other states You cant punish someone for being bad in general , you have to punish them for bad acts Core factors : degree of reprehensibility, disparity between actual or potential harm and the punitive damages, difference between punitive damages awarded and ones awarded in comparable cases (3:1 or 4:1 is the limit) Perreira v Rediger (p. 619) If injured people collect damages from the tortfeasor, can the insurance company get its money back? Collateral source rule : Injured party could double collect NJ rule : can only sue for your out of pocket expenses, but you can recover premiums paid to insurer 3 standards: Reduction unless contractual reimbursement or subrogation right exists You can only get the full $7k if youre going to pay back the insurer. Permits defendant to introduce evidence at trial about

Total offset of ination and diminution This court accepts Feldman evidence standard, Beaulieu offset methods Advantages : easy, requires no expert economic testimony But, its obviously wrong. Ination and discount dont totally offset. Real rate of interest ~= nominal interest rate ination rate Graph of interest calculations on page 605

Outline (NU) - 10/14/12 2:57 PM / 19

benets received