Black Letter Law & Case Argument Policy

Elements / Doctrine Policy / Rationale

INTRODUCTION: Theory of Tort Liability
Fault Required. If the plaintiff plead neither that the defendant was negligent, nor that the action of the defendant was willful or wrongful, there is no basis for recovery. The court will not impose liability without fault to childish acts. Without fault, there is no cause of action. (Van Camp v. McAfoos) [Facts] Defendant Mark, three years one month old, drove a tricycle into the rear of the plaintiff. The plaintiff was injured. [Argument by plaintiff] The invasion of one’s person is in itself a wrong. A person has a right not to be injuriously touched or struck as she lawfully uses a public sidewalk. No fault needed. (traditional strict liability) Historical Strict Liability 13th-18th century, anyone who acted affirmatively and directly might be held liable for harm done, even though he was not at fault. Form for suing: Trespass. Form of Action: Trespass on the Case (vs. Case). Notes:  Intent is not relevant in contract, but matters a lot in tort.  A tort is some kind of wrong, a breach of society norm/due. A “compensable” injury is needed. A court shall decide how to limit these 2 concepts.  Goals of Torts: 1. To compensate the injured. 2. To shift the law to deter misconducts. 3. To punish people for wrongdoings (punitive damage).  The compensation is usually reliance. To restore the status quo.

1. Battery Elements  A person is subject to liability for battery when he acts (1) intending to cause a harmful or offensive contact (with the person of the other) (or an imminent apprehension of such a contact), and when a (2) harmful (or offensive) contact (with the person of the other) (directly or indirectly) results.  Contact which is offensive to a reasonable sense of personal dignity is offensive contact.  There should be no consent. (Snyder v. Turk, Cohen v. Smith) [Facts] Doctor was upset, grabbed the nurse’s shoulder and pulled her face down toward the surgical opening, saying, “Can’t you see where I’m working? I’m working in a hole. I need long instruments.” (Snyder v. Turk) [Argument] no intent to inflict personal injury. Contact  Non-harmful offensive contact counts, because protecting personal integrity is an important basis for battery. We also want to avoid duels. (Cohen v. Smith) [Facts] Couple informed hospital that wife shouldn’t be seen naked by a male. Hospital consented. A male nurse saw and touched wife during operation.  Following the definition of offensive contact, “offensive” is defined to mean “disagreeable or nauseating or painful because of outrage to taste and sensibilities or affronting insultingness.” (Leichtman v. WLW Jacor Communications, Inc.) [Facts] D. lit a cigar and repeatedly blew smoke in P.’s face.  Tobacco smoke, as “particulate matter,” has the physical properties capable of making contact. (Leichtman v. WLW Jacor Communications, Inc.) Intent  An actor must realize to a substantial certainty that a harmful or offensive contact will be caused by his intentional conduct, for him to be liable for battery. (Garratt v. Dailey) [Facts] D. moved the chair when P. was sitting down. D. alleges that he was trying to sit down, only found out that P. was sitting down after moving the chair, and failed to put the chair back.  The “substantial certainty” requirement is disjunctive with the “purpose” element. Either will suffice a COA for battery.  Transferred Intent: When the intent element is satisfied towards another but a harmful or offensive contact to a third person resulted, the actor is liable to the actual

victim. Emphatically, intent to put another in an imminent apprehension of such a contact can also be transferred. (Hall v. McBryde) [Facts] Defendant shoots towards a car, not intending to actually shoot the youth in the car. Plaintiff who lived next door was shot. Held, intent element is satisfied. If the bullet is fired by the defendant (contact element), the defendant is liable for battery.  Intent for assault can be transferred to a battery claim. When one intends an assault towards another, causes a harmful or offensive contact with a third person, the battery claim is actionable by the injured. (Hall v. McBryde) *******

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At common law, one who is present and encourages or incites commission of a battery by words can be equally liable as a principal. (Leichtman v. WLW Jacor Communications, Inc.) The trial judge erred in requiring proof of medically diagnosable emotional injury. Upon proof of battery or assault, the plaintiff is entitled to recover nominal damages plus “compensatory damages for bodily pain, humiliation, mental anguish and other injuries that occur as a necessary and natural consequence of the tortuous conduct. There is no fixed measure or standard available to the trier of fact in determining the measure of damages for pain and suffering. The measure of damages is simply that which is fair and reasonable.” (A.R.B. v. Elkin) [Facts] Children sue father for sexual abuse. No medical invoice. A minor’s age is of consequence only in determining what he knew. (Garratt v. Dailey) Our society and our courts accept people’s right to have belief. A sound-minded adult has the right to determine what shall be done with his own body; he has the right to refuse medical treatment even in threat of death. A surgeon who performs an unconsented-to operation commits an assault. (Cohen v. Smith) No matter how trivial the incident, a battery is actionable. Policy: “In civilized society men must be able to assume that others will do them no intentional injury – that other will commit no intentioned aggressions upon them.” (Leichtman v. WLW Jacor Communications, Inc.)

Intent: 1. If the actor intended imminent apprehension of such contact. (Emanuel) 2. If the actor realizes that the act is substantially certain to result in such a contact. (E&E) 2. Assault  An act (1) intending (same in battery) to cause a harmful or offensive contact with

the person of the other or an imminent apprehension of such contact, and that (2) creates in that other person’s mind a reasonable apprehension of an imminent battery. (Cullison v. Medley) (Koffman v. Garnett)  “Mere words.” Not dispositive; the doctrine may mean that mere words usually don’t create an apprehension of immediate/impending battery.  Any act (that would normally) excite an apprehension of a battery (for a reasonable person). (Cullison v. Medley)  In this case, one tricky question common to battery and assault is raised: how to determine that the actor “realized to a substantial certainty”? It’s usually a jury question. Here the court says that assertion of foreseeability by P is not required, and the following policy goal is important: 1. To protect the right to be free from the apprehension of a battery. 2. The tort is complete with the invasion of the plaintiff’s mental peace. (Cullison v. Medley) Cases: Cullison v. Medley: D. brought gun and intimidated P. in his trailer home. Held. Although D. didn’t remove his gun, nor is there proof that D. is “malicious callous, or willful,” or that the apprehension was foreseeable, there is COA. Whether P.’s apprehension of battery was normal and reasonable is a jury question. Koffman v. Garnett: D., a football coach, lifted and slammed P. to the ground. Held. Since P. alleges no warning before the contact, there was no apprehension. When P. was lifted, he might have had apprehension, but the alleged battery was in progress. Hence, no COA for assault. 3. False Imprisonment  The actor (1) intended to and does in fact confine another within boundaries fixed by the actor, and (2) that the victim is either conscious of the confinement or is harmed by it. (McCann v. Wal-Mart Stores, Inc.)  Confinement can be imposed by the following methods: a) By physical barriers or physical force (but much less will do); b) Mere threats of physical force; c) Threats may be implicit as well as explicit; d) Based on a false assertion of legal authority to confine; e) Restatement: other unspecified means of duress. Cases: McCann v. Wal-Mart Stores, Inc.: employee of D. told P. that they had to come with them, that they’re calling the police, and stood guard over P. while waiting for a security guard to arrive. Held in favor of P.

or other trivialities. therapist seduced P. Long) Cases: GTE Southwest. Inc. King)  During a medical operation. Held.’s wife. consent is construed as general if (1) there is no evidence to the contrary.’s conduct is E&O because it’s not only serious but also has become a regular pattern. (2) the conduct was extreme and outrageous. P. B. acted intentionally or recklessly. (Reavis v. such workplace racial insults and indecencies could be E&O. jury question. No liability. and (4) the resulting infliction of emotional distress cannot be maintained when the risk that emotional distress will result is merely incidental to the commission of some other tort. Slominski)  Incapacity of adult is usually established only by showing that the adult did not understand the nature and character of his act. Inc. D.  Consent has limits. Inc. engaged in a pattern of grossly abusive. Homer v. (GTE Southwest. For all others. and degrading conduct. v. (3) the actions of the defendant caused the plaintiff emotional distress. verbally threatening and terrorizing P. wasn’t present. Bruce)  The present requirement: conduct directed at a third is E&O to another if the other is present and: 1. Held. Defenses 1. D. (GTE Southwest. v. annoyances. mere insults. v. threats. threatening. Consent  Incapacity renders consent ineffective only if (1) P. Long: D.’s condition substantially impairs her capacity to understand and weigh the harm and risks of harm against the benefits flowing from the proposed conduct and (2) D has knowledge of that incapacity. (Ashcraft v.4. Held. indignities. The policy reason behind is: . mere emotional distress will do. petty oppressions. Taylor v. Bruce: P. 2. (2) patient is incapable of giving consent and no one with authority to consent for him is immediately available and (3) surgeon exercises sound professional judgment. regularly used the harshest vulgarity. Long)  What’s not extreme and outrageous: insensitive or rude behavior. For immediate family member. works under D. Inc. (GTE Southwest. (Homer v. Intentional Infliction of Emotional Distress  (1) D. (Homer v. Bruce)  (5) The emotional distress is severe. must suffer bodily arm from such distress. Bruce)  Reiterate (4): must be the intended or the primary consequence of the conduct. v. Metzger: African American referred to as “jungle bunny” by one supervisor in front of another supervisor.

(Katko v.  Only covers reasonably necessary defenses. not actual reality. owner showed no probable cause. probable cause exists only when customer attempts to leave without paying or manifests control over the property such that his intention to steal is unequivocal. Breach of the peace signifies disorderly. trustworthy surgeons.  Owner is prohibited from intentionally injuring trespasser by deadly force or force that inflicts great bodily injury. got HIV from blood from general supply. 2. 120A owner’s privilege.  No deadly force against non-deadly force. Cases: Great Atlantic & Pacific Tea Co v. dangerous conduct disruptive of public peace. 120A. Some states require reasonable retreat before deadly force. Briney)  Policy: human safety is more important than property rights. one may defend others on the same basis that he may defend himself. Paul: P. The law should encourage self-reliant. unless in one’s dwelling. or (2) encounters a misdemeanor which amounts to a breach of the peace. consented to operation on the condition that any blood transfusions use only family donated blood. owner must show probable cause (reasonable belief of shoplifting). (Great Atlantic & Pacific Tea Co v. Even under Rest. (There was no reasonable investigation.  Under Rest. Held.  Assault and false imprisonment could be covered. Privilege a) Defense  Based on necessity. Held. Shoplifting is not one of such misdemeanors.  Arrest/detention is privileged only when the arrester: (1) encounters a felony or reasonably believes that arrestee committed a felony. P. (Kennedy v. In a self-service store. Martinez)  No requirement for victim to retreat. no defense since the transfusions exceeded the consent given. Paul)  Provocation such as insults and arguments are not sufficient. Parrott) Cases: Ashcraft v. (Great Atlantic & Pacific Tea Co v. (Brown v. or trespasser threatens human life. including setting out “spring guns” and the like. unless trespasser was committing felony either of force or punishable of death. King: P. So defense could be mistaken yet still reasonable.) . shoplifting is not a misdemeanor that breaches the peace. not men who may shirk from duty for fear of lawsuit. No retaliation or continued defense after fight is over. Customer forced into manager’s office and searched. hence no privilege. Paul)  In general.

he should compensate P. D. was stealing bottles and fruit jars. cannot prevent the damage.)  When D.’s ship is disabled by the storm and thrown against the dock. D.’s property threatens life or property and is therefore destroyed. D. deliberately renewed cables to preserve his ship at the expense of the dock.’s house in city fire. Brown v. Lake Erie Transportation Co. for the losses. Martinez: P.: P. P. (2) to preserve the ship. e. triumphs common law. should pay for it.  Distinguish: (1) P. but created by court for policy reasons. Geary)  Under Minn. act exceeds privilege. (Vincent v. compensation must be made. is entitled to compensation when his property is “taken” for public use. D. (2) act of God. public necessity is an affirmative defense. is entitled to compensation under . Held. Co. seriously injured P. although the fire wasn’t stopped.  Although it is difficult to decide who is to judge the necessity of the destruction of property. Const. the difficulty will not be obviated by holding the parties responsible in every case.) Cases: Surocco v. Milwaukee Mutual Ins. (Surocco v. const. home owner set up a shotgun trap for trespassers.  It’s not fair to allocate the entire risk of loss to an innocent homeowner for the good for the public.’s house damaged during arrest of criminal.’s watermelon. alcalde destroyed P. Co. Held. hence defense of public necessity is not available here. used a valuable cable on the dock. (Wegner v.Katko v.  Necessity can be either public or private. where D. Here D. Briney: D.g. one’s privilege to enter public utility or common carrier. and that hardships and unnecessary losses may rise therefrom.. and one’s right to enter land to reclaim one’s own goods. The citizens of the city should all bear the cost of the benefit conferred. and P. D. Wegner v. thus not act of God. The policy considerations here are fairness and justice. There was direct intervention. unavoidable accident. Held.  If public necessity requires the taking of private property. P. was shot when stealing D. Other such privileges include officer’s privilege to search and arrest. Geary: D. Milwaukee Mutual Ins.  Related parties (in this case police officers) acting in the public interest cannot be individually held liable.  Analogize: (1) starving man takes food. b) Necessity  Necessity is one of the privileges not dependant on P’s conduct. should pay when able to. Held in favor of P. no privilege to shoot (use force calculated to cause death or serious bodily injury) when mere property is threatened.’s house.’s ship parted dock without negligence and damaged other ships. after criminal escaped into P. is not liable. “took” out of personal necessity.

’s dock was damaged consequently. (Robinson v. (Wilson v.: During storm. D. Incentive/deterrence. it doesn’t require adult skill and there is no evidence that it’s primarily for adults. II. (5) injury. because police action was for public good. Sibert)  Children are usually held to the standard of care of a reasonably careful child of the same age. Policy considerations include: . maturity. Fault.  Protect the need of children to be children. motorcycle. 2. to take reasonable precautions against reasonably foreseeable harm. Lindsay)  Driving a golf cart is not one of such activities. minibike and automobile. 3. A. Emergency is a relevant circumstance. (4) proximate cause. Held. Duty of Care a) Reasonable Care  Negligence as conduct that creates an unreasonable risk of harm to others. (3) actual cause.  “Reasonable prudent person (under like circumstances)” standard. (This one is central. Vincent v. The Prima Facie Case 1.  However. intelligence. Putney)  The general duty of care imposed on adults with mental disabilities is the same as that for adults without mental disabilities. The court may issue a separate jury instruction on sudden emergency.)  Prevent the hazards to the public if the rule were otherwise. (2) breach.constitution & for fairness. Others are derivative. Lake Erie Transportation Co.  The test of negligence in emergency situations is the same: reasonable prudent person under like circumstances. they should be held to an adult standard of care. prudently and advisedly kept his ship tied at the dock and prevented it from drifting away. (Hudson-Connor v. training and experience.  Five elements: (1) duty. Compensation. D. UNINTENTIONAL FAULT: NEGLIGENCE Policy goals: 1.  Examples include tractor. P. Policy considerations include:  Discourage immature individuals from engaging in inherently dangerous activities. should compensate. when children engage in inherently dangerous activities normally for adults only.

Trial court failed to instruct the jury to hold D. Creasy v. Held. Held. Held. When one’s disability is so serious that he threatens others in normal social activities.. 1.Allocate losses between two innocent parties to the one who cause or occasioned the loss. and accounting for that is too difficult. 3. D. P. We want to compensate reliance. drove a snowmobile and injured P. Roman v. (Creasy v.  Policy is that we should allow people with medical history to drive and engage in social activities when reasonable. struck by unforeseeable medical emergency liable is strict liability. for children and physical conditions. (Roman v. during daily care. Rusk 125: D. and it’s fair to at least hold him liable for the damages. (Creasy v. 13. Doctor testified that heart attack was unforeseeable and there was no reason to stop driving. The line between normal intelligence variations and true disability is subtle. Rusk)  One employed to take care of patient known to be combative because of Alzheimer’s disease has no complaint for injuries sustained in doing so. affirmed. his right to continue normal social life could be questioned. suffered heart attack while driving and injured P. To hold P. backed his car suddenly without warning/precaution when the car in front of D. nurse was injured by D. suffers Alzheimer’s disease. Patient has no duty. sudden emergency is a relevant circumstance when judging negligence. we use a subjective standard of care. We want to match right/benefit with responsibilities. Held. mental disability doesn’t affect standard of care. The duty of care here is a one-way street. Sibert 117: D. Relatively at fault. Estate of Gobbo)  Summary: for mental conditions. Robinson v. struck P. Avoid administrative problem in identifying and assessing mental disabilities. 4. Provides incentive to those responsible for people with disabilities and interested in their estates to prevent harm and “restrain” those who are potentially dangerous. 5. Burden is on defendant to prove (1) sudden and (2) not reasonably foreseeable. not liable. suddenly started backing up.  Central feature of negligence law is the requirement of unreasonable act. Estate of Gobbo 129: D. deceased. Rusk)  Sudden-medical-emergency is a complete defense. we use an objective standard of care. to an adult standard of care. Verdict for D. but nurse has no claim. Remove inducements / pervert incentive for alleged tortfeasors to fake a mental disability in order to escape liability. . Lindsay 121: D. 2. (Notes!) Cases: Wilson v. New trial ordered.’s car. is known to be combative..

like in marriage. it was reasonable for the employer not to provide any safety precautions absent employee’s request. Cases: Stinnett v. In many things. released dog prior to statutory required date. (US v. Held. Depending on the level of generality. No negligence. Buchele 152: Employee fell while painting. Direct evidence is more . we need to do a lot of generalities. Breach of Duty a) Unreasonable Risk  When employee has more expertise. there is information cost! 5. When you want to do the whole analysis.b) Negligence Per Se  To sustain a claim for negligence per se (statutory negligence).  Circumstantial evidence is something that allows inference. since the employee has significantly more experience and expertise in relevant fields. (Stinnett v. Buchele)  Duty is determined by three variables: B<PL. (2) the injury must be of the type which the statute was intended to prevent. There are also cost distribution considerations. Sometimes it's hard to compare. Live of a little girl. Carroll Towing Co. (1) plaintiff must be within the class of persons protected by the statute. Carroll Towing Co. and L is extent/gravity of injury/loss. or jobs of the whole town? How to put them in numbers? Isn’t it a little cold blooded? 4. Hard to value. Dog bit P. it is reasonable for employer to defer to employee to facilitate or ask for safety precautions.. When we do analysis. but didn’t intend to prevent the injury. b) Proof of Breach  Proof is complete by the greater weight of evidence (more probable than not. 160: Applying B<PL principle. P is probability of injury. Held. preponderance). There are commensurability problem. reasonable persons don't do cost-benefit analysis. 2. Save the little girl or the factory? 2. the statute intended to protect P. Brown 141: D. probability exceeds one-half. the owner of the barge should have had a bargee on board.)  Objections to the B<PL principle: 1. (P163 Point 5) 3. (Wright v. US v. Brown) Cases: Wright v. it could go very wrong. B is burden of precaution.

J. Hooper 185: Although coastwise carriers generally do not equip radio receivers. (The T. Eaton 190) Cases: Valley Properties Ltd. Held.  Jury determines the credibility (falsity or truth) and the weight (evaluate) of evidence/testimony. Has the plaintiff impliedly accepted the custom as standard? Cases: The T. hence Res Ipsa Loquitur isn’t applicable here. the court shall defer to the jury. and (3) the indicated negligence is within the scope of the defendant’s duty to the plaintiff. are sufficiently eliminated by the evidence. Hooper)  Relevant arguments: 1. 3. Burden to prove the three conditions is on plaintiff. and other causes such as malfunction in the electrical system are not eliminated. including the conduct of the plaintiff and third persons. . V. Rotenberry 170)  Industry standard/custom could be good reference for. Inc. V. Steadman’s Hardware. would have avoided injury. but doesn’t mandate inference of negligence. (Byrne v. Causation a) Causation in Fact  The “but-for” rule/test to establish the element of “cause in fact”: but for D. (2) other responsible causes. (Eaton v. Inc.J.’s conduct. It says we could draw inference. Steadman’s Hardware. the court held that it was negligent not to have one.  In some cases. P. Boadle 187)  Defendant’s negligence liability may be inferred if (1) the event is of a kind which ordinarily does not occur in the absence of negligence. (Valley Properties Ltd. (Upchurch v. Does the plaintiff has knowledge of the custom? Does P. because the cost is low and the receivers could offer great protection. the mere fact of the accident having occurred is evidence of negligence. fire could start without negligence. c) Res Ipsa Loquitur (negligence based on circumstantial evidence)  RIL doctrine is essentially nothing new. but is never the measure of the proper standard of care.)  The RIL doctrine permits. 190: A fire stated in area exclusively accessible by D. agree to bear the risks of the custom? 2.persuasive. It’s important because it could give P a big advantage. Jury also determines which portion of the evidence/testimony to accept. In absence of overwhelming weight.

Held. is still liable. P. Held. D.  When tort of two or more joined to produce an indivisible injury. 215: Two D. (Notes)  Joint tortfeasors exception to but-for rule. lost balance and . could escape liability though both were negligent and such negligence caused the injury. is liable when and only when his negligence is a material/substantial element test in the injury.  When victim and D.  D. (Summers v. would be remediless.’s house independently. There was no concert of act or unity of design. no concert or unity required. lost of fish is indivisible. Minneapolis. St. P would have too heavy a burden of proof than usual. both Ds. Wrongdoers are not in a position to complain of uncertainty. (Landers v. Ds.)  How do you know when there is a "joint and several liability"?  It's complex. an injury that cannot be apportioned with reasonable certainty from its nature. D. Tice)  Policy: If the rule were different. Paul & Sault Ste. has no duty to identify and prove that one of them caused the injury. and it is difficult to prove who did. They are joint tortfeasors if and only if the injury is indivisible. are usually in a better position to prove who caused the injury. The doctrinal answer is that when the defendant are joint tortfeasors. Twin State Gas & Electric Co. However. Even when the joining cause from a non-negligent source would have resulted in the injury independently anyway. 221: P. (Dillon v. Anderson v.’s liable.  The rule and policy are the same where both Ds. Paul & Sault Ste. Loss of grass is divisible. joint and several liability apply.  So if it's truly indivisible. hence two Ds. still has the right to absolve himself or ask for compensation from the other later. to identify the one causing the injury. Dillon v. unfair to allocate the burden of allocating proportional damages to the plaintiff in some cases. how can the defendant's allocate their portion later?  It's not really factually indivisible. Minneapolis.’s fire joined with other fires from non-negligent source and destroyed P. East Texas Salt Water Disposal Co. caused salt water to flow into P. Twin State Gas & Electric Co. burden of proof would be on Ds. P.) Cases: Landers v. are jointly and severally liable. but only one caused the injury. St. It's just. is only liable for the extra damage caused. (Anderson v. Each D. The but-for rule is an extent to Van Camp fault principle. Marie Railway 216: D. climbs atop a bridge. All these are not fair.’s house. jointly caused the injury. cause the injury but apportionment is difficult. The two or more could be acting independently. the two would be jointly liable. Either fire would have destroyed P. that is. East Texas Salt Water Disposal Co. killing many fish.’s lake on the same day. from a policy point of view. Marie Railway)  When both parties were negligent. D.

Held.  The “rescue doctrine”: rescue is foreseeable or is foreseeable as a matter of law. City of Chicago 237)  Recall that the test for negligence is B<PL. Summers v. Courts refuse to impose liability when the harm actually resulting was not the kind of harm that led to a finding of negligence in the first place. The two are jointly liable. International Railway)  A noticeable minority of jurisdictions use a “directness” test rather than a “foreseeability” test for the proximate cause. if but for the current (the wire still there) P. This rule includes cases in which the defendant negligently injures or endangers himself and the plaintiff is injured in attempting a rescue. (Wagner v. was injured by one of them. it wouldn’t be in the B<PL analysis.’s suffer. No breaks in the chain of causation.. Inc. is liable for death where earning capacity would be calculated upon the assumption of serious injury. since causation is not an element of a prima facie case for an intentional tort. D. P.  Like the foreseeability test. Injury must be foreseeable in both type/general nature and class of person at risk.grabbed D.. P. Whether P. Tice 222: Both Ds. no superseding intervening causes. Held. would have regained balance but for the current is jury question. Cardozo also used the term “scope of risk” created by the negligence. negligently shot towards P. But-for test would leave people with endless liability. you are liable for all the consequences that result. does not need to identify and prove which one caused the injury. Negligence is the fault. D.  Substantial factor test: whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant’s negligence. the directness test is really just a term of art. Washington Heights Condominium Ass’n. . if you commit an intentional tort. 239)  [Policy] 1.’s wire. was electrocuted. b) Proximate Cause  Creation of unreasonable and foreseeable risks is liable. P. If a reasonable person cannot foresee the risk. would have fallen and died. he is not liable for B’s injury so factually caused if B’s injury is not foreseeable. is only liable for P. 2. Abrams v. at least at the doctrinal level. (Palsgraf v. Long Island Railroad Co. if P. To hold otherwise would be strict liability. which was negligently left exposed and charged. Reflects the same policy objectives/concerns as the foreseeability test. would have fallen and be seriously injured. and the creation of an unforeseeable harm is not negligence.  In contrast. follows a natural and continuous sequence. Liability must stop somewhere.  Unforeseeable Plaintiff: even if D might have been negligent towards A. (Medcalf v.

injunction and restitution. International Railway 246: One passenger fell of the train because of negligent rules by D. injuring P. New York Transportation Co.  Constitutional torts: must prove actual damages such as pecuniary loss or at least actual mental distress to recover more than nominal damages ($1). Held. (extent doesn’t matter) (McCahill v. Held. City of Chicago 237: D failed to send an ambulance when P’s contractions were 10 minutes apart.  Property torts: 1. P’s friend drove her through a red light when hit by a driver who was using alcohol and cocaine and whose license has been suspended.  Remedies: damages remedy. 239: At D’s platform. he wasn’t negligent towards P. all by a police officer. 4. D is not liable because P was pulled from a few blocks away. McCahill v. classic “thin skull” case. New York Transportation Co. 249 --. There is no fault. Held. Held. 235: P attacked when locked out by the failed electronic buzzer system. full market value. The customer dropped an unidentifiable pack of fireworks.  “Thin skull” or “eggshell skull” rule. Palsgraf v. Inc. P was injured when trying to rescue the passenger. incident not sufficiently foreseeable. D is liable for the death. Once negligence or intentional fault is established. although crime in the garage is foreseeable. but unforeseeable chemical reaction caused later explosion that injured the plaintiff. 251: D ran into P and broke P’s thigh. Held. Injury a) Physical and Economic Harms  Two primary objectives: (1) shift the law to compensate the injured party.Railroad left grass clippings by rail side and fire burned down P’s cottage after traveling 200 yards across a stubble field. 251 --. One difference is that the “directness” test depends more on the temporal aspect. The fireworks exploded. and (2) restore P to the status had the tort not happened (indifferent). P eventually died in hospital because of a pre-existing alcohol condition. D would otherwise qualify as proximate cause. Not liable. Held. and the shock threw down some scales at the other end of the platform. Abrams v. a hedge. didn’t splash. the fact that the injury is much worse than foreseeable does not limit D’s liability.)  Lid negligent put into hot fluid. harm was not reasonably foreseeable. one guard pushed a customer from behind to help him get in. and a road.P was pulled over from a few blocks away into a garage and sexually assaulted. foreseeable. 251 Cases: Medcalf v. . although D’s employee might have been negligent towards the customer. Wagner v. Washington Heights Condominium Ass’n. Total dispossession of personalty: conversion action. Long Island Railroad Co. as a matter of law. Held.

2. substantial pain and suffering award is necessary. 1. there is an amount that would make people indifferent. etc. b) In general. P861  Criticism and counters [related to MARTIN 857]:  Pain and suffering is too arbitrary and unpredictable. Other specifically identifiable harm resulting from the tort. there is always the question of what the circumstances are. Injunction: repeated trespasses. Physical harm to tangible property & damage to chattels: diminished value of the property.  We must award something to account for attorney’s fee. 3.  Pain and suffering:  The American rule: attorney’s fee is not recoverable. intangible property. Pain and suffering including mental. and we can easily undercompensate.  Pain and suffering recovery includes mental or emotional distress from the pain. For lawyers to pursue the claim with enough vigor. When there is full compensation however much you spend? 2. 4.Dispossession of real property: rental value of property during time of dispossession.  Even for future medical damages. (2) If money just won’t restore him. d) The damage award itself may operate as a psychological factor that helps cause the pain to continue. then isn’t this compensation totally arbitrary? Should we abolish it?  Such compensation offers deterrence. Cost of medical monitoring to intercept a prospective disease. 3. .  In many cases. the amount is highly subjective. a) May be substituted by cost of repair. pros and cons. threat of irreparable harm.  Unlimited compensation is a burden to everyone and against social utility. c) Unpredictability is bad for law.  Per diem or unit-of-time argument. P861  Comparable awards as reference. a) (1) Maybe we can never adequately compensate for personal injury. we should shift the undercompensated part to the whole society.  Personal injury torts:  Punitive damages may be warranted where malicious or wanton. (best doctor)  When we apply the “reasonable under like circumstances” test. Reasonably incurred medical expenses. Lost earning capacity or wage loss. 4. there is gross undercompensation. especially when repair is not likely to enhance the damaged property or make it more valuable. 5.

donations.  Compensation is not taxable. (Keans v. b) Mental Harm  The claim for negligent infliction of emotional distress is governed by federal . provides incentive for P to get well soon.  Collateral source rule: all collateral sources of benefits to the injured party. the avoidable consequence or “mitigation” rule: one who is injured by the negligence of another must use reasonable care to promote recovery and prevent any aggravation or increase of the injuries. The fundamental policy that we want to do law rather than equity. Distinction is important because comparative fault might bar P completely.  Criticism: incurs cost for shifting the loss. courts and legislatures started to have compensation caps. victim will still pay more premium. When one fails to act like a reasonable prudent person will to mitigate his injury.  Even if this rule is abolished. 2) your negligence proximately caused part of your injury (intervening/superseding cause). but most states see it as desirable. Bottiarelli 877)  Two ways of understanding: 1) you didn’t reasonably reduce the injury.  Periodic Payment c) D less likely to go bankrupt d) Less overcompensation e) Reduces likelihood that P will squander money. D shall pay for P’s premiums. salary.  Half the states have abolished a limited this rule. must be ignored when the jury assesses compensation. that part of the compensation will be deducted. recognizing there is excessive liability. P871-877  Duty to mitigate damages.  Contributory/comparative negligence/fault reduces damages in proportion while avoidable consequence reduces discrete identifiable items caused by P. Periodical  Lump sum a) Pro: D and P don’t have ongoing relationship.  Sometimes the proceeds will go to such collateral sources. including insurance. which would be shifted to the public insureds at large. low administrative costs. resulting in jury overcompensation.  Lump sum v.  In recent decades. b) Con: discounting to present value is highly speculative. liability insurers are less efficient.

medical and funeral expenses.  The loss of consortium claim:  Originated from master-apprentice  husband-wife relationship. other people .  Note: the development of this doctrine might be undoing all the limits we set for NIED. companionship. includes contribution from the decedent. if either the plaintiff or the defendant dies.  Emotional distress emphasized an acute moment-shock or fright (a stab).  Utah legislature has acted in the opposite direction regarding spouses.  It is now common to allow this cause of action for spouses.R. Further. Legg on page 575 is an example. ongoing sense of loss (miserable life). and courts have failed to develop rational limits for it. Limited to pecuniary losses only. love. 573)  This area of tort law is still growing. firm economic basis  non-economic losses such as loss of society and sexual relations. all damages goes to the victim. On the other hand.common law under FELA. services. If you felt fear. the second by “wrongful death” statutes. (Grube v. 573)  An essential element of the test is fear for one’s safety expressed at or near the time of the danger. (Grube v.  The Utah court rejected adoption of loss of consortium action for the serious injury of an adult kid because: [Policy]  This cause of action could greatly expand the liability of one negligent act. The first has been changed by “survival” statutes.  Division of compensation:  Before death. not punitive. solace and more. c) Death  In old common law. the cause of action dies.  Includes loss of support. Union Pacific R. Union Pacific R.  Wrongful death action: compensatory. P’s dependants have no separate cause of action. Remember to compare. it’s a real loss and might be in nature different from NIED.  The fundamental argument is that it’s a “foreseeable” injury.  This cause of action would affect the cost and availability of insurance. Fear is the triggering element here. Dillon v. you’ll also get compensation for being upset. compensation is clear.  Survival action: all personal causes of action that decedent would have had if he or she had survived. society.  [Policy] Purpose is to compensate.R. The Supreme Court applies the zone of danger test: a worker within the zone of danger of physical impact will be able to recover for emotional injury caused by fear of physical injury to him. loss of consortium recognizes legal harm in a chronic. affection. an imminent apprehension of physical harm. whereas a worker outside the zone will not. sexual relations.

(Remy v. (Smith v. . Under a wrongful death action for death of a child.  After death. Emotional harm is governed by NIED and loss of consortium claim. or they would have their own COA.  Delay trial to wait for death of plaintiff/defendant. Recall that negligence is based on B<PL principle. The purpose of punitive damage is deterrence. Attention! Lost wages recoverable only up to death for survival actions. MacDonald 599)  Also compare: Renslow v. if calculated correctly. but D is liable here. the system just treats loss of consortium of parents as a pecuniary damage. MacDonald 599. a) We also accomplish loss-shifting.  [Policy] A strong reason not to hold the mother liable is the vulnerability of the child during pregnancy. there will be an end of liability.    recover emotional harm only. MacDonald 599)  However. (Remy v. we shouldn’t give lost wages for life. even if he is unknown or is remote in time or place. First part is claimed under wrongful death action. Mennonite Hospital 604: P alleges that D’s negligent blood transfusion to her mother before she was conceived caused various diseases of hers. When the other elements of a survival claim have been established in a related wrongful death act.  Against: a) Sanctity of human life would be undermined. (Remy v. The court says the line is whether the child has been born. second part under survival action and will go to decedent’s estate. Held. We shouldn’t award compensation for the birth of a normal child. Restatement §869: one who tortiously causes harm to an unborn child is subject to liability if the child is born alive. at 600)  [Policy] Is compensation for “wrongful birth” actionable? P sues for the childrearing cost. to require an award to support a claim for punitive damages is superfluous. Since out goal is to compensate. [Policy] There is no one there to experience the lost wages.  Therefore. [Policy] Allowing survival actions avoids the original perverse incentive to:  Kill people at all costs. Whitaker 612) d) Pre-natal Injury  Child has no claim against its mother for injuries negligently sustained before birth. A negligently caused death constitutes a legally cognizable injury. the child would have a claim against a third person. compensation going to the victim is further divided into two parts: compensation that would have gone to beneficiaries. but recoverable for whole life under wrongful death action. because P can be foreseeably harmed. there wouldn’t be double compensation. and money that the victim would have kept for himself. or after its birth.

P is getting a wind-fall by receiving compensation and keeping the child.  For: a) Child-rearing expenses are a natural and probable consequence of the healthcare provider’s breach. It’s unfair to ask the parent to suffer such harm to mitigate future injuries caused by D. or profits as a basis for determining amount. income. MacDonald 599: Child (P) claims that her mother’s negligent claim cause her early birth and subsequent breathing difficulties. e) Abortion or adoption is highly personal and deeply religious and moral. a pregnant mother owns no legal duty to her unborn child to refrain from negligent acts.  Insurers sometimes not liable for frustration of purposes. and the deprivation of her right to limit procreation. Seslar 606)  Courts generally reject such claims. f) Requiring “mitigation” by abortion or adoption will affront the USSC’s protection of procreation decisions under the Constitutional right of privacy. Now some courts just read this rule as requiring to establish a cause of action. Held. parents are accepting the responsibilities. Duty element not satisfied. but the invasion of her interest in the financial security of her family and the attendant desire to limit her family size. The law generally views life a positive gain. e) Punitive Damages  Only for misconduct couples with a bad state of mind.  May be more than one. b) Parent’s injury is not the birth of the child. By not mitigating. should exercise abortion or adoption. . (Chaffee v.  Sometimes require actual harm or actual recoverable damages as a basis. (genetic deformity) Cases: Remy v.b) c) Plaintiff has duty of mitigation.  Jury is allowed to hear evidence about the defendant’s wealth. c) Sanctity of life is more undermined by a parent financially unable to provide necessities.  Healthcare provider is entitled to present evidence to limit the amount of the recovery of child-rearing damages by benefits resulting from the child’s birth.  Purposes:  Punishment or retribution  Deterrence  Assist in financing useful litigation  Jury decides whether to award and if yes the amount. d) Abortion or adoption is serious harm to the parent.

(New York)  P≤D: If P’s negligence was not greater than D’s negligence. all-or-nothing defense. and . (Wisconsin)  P<D: P would be barred from recovery if P’s fault was “as great as the combined fault of all other persons. Held. P failed to use ordinary care and is therefore barred from compensation.  Only Alabama. Failure of the plaintiff to exercise ordinary care for her own safety would completely bar recovery. (If P used reasonable care.) (Butterfield v. Wangler 274)  When a 50-50 allocation of negligence would bar P from recovery.B. Wangler 274)  Pros and Cons:  Pro: consistent with joint and several liability. P rushed into the pole and was injured. At time of injury. P was riding as fast as possible through the streets. damages shall be diminished in the proportion to the amount of negligence attributed to P. and DC have failed to adopt comparative fault rules. North Carolina. Forrester 272)  Possible grounds/rationale:  Fault  Proximate cause  Negligence Cases: Butterfield v. as long as D wasn’t reckless or wanton. Contributory Negligence  A complete. including awareness or indifference to the risks created. b) & c) are called modified comparative fault. Virginia. Forrester 272: D left a pole in the road. Comparative Fault  Three types of comparative fault:  Fully proportionate: compensation shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused the damages.  Assigning “responsibility” is the most accurate term. the injury would have been avoided. the jury should be informed of the legal consequences of its special verdict answers through and “ultimate outcome” instruction.  Factors to be considered when assigning responsibility:  Nature of conduct.” (North Dakota)  a) is called pure comparative fault. (Sollin v. 2. Defenses 1. Maryland.  Con: too arbitrary. light was enough to discern the obstruction at 100 yards. (Sollin v.

but P doesn’t? Cases: . and could reasonably have avoided it. 296)  Where D’s duty of care includes preventing the self-abusive or self-destructive acts that caused the injury. it includes intentional self-harm.  The minimizing damages rule (duty to mitigate loss with reasonable care & effort).  D has a duty to guard against P’s negligence.  Traditional Exceptions:  Last clear chance or discovered peril: If D discovered or should have discovered P’s peril.  Certain statutory provision: e. (2) It is hard to attribute a percentage of responsibility to D’s unknown negligence. the plaintiff’s earlier negligence would neither bar nor reduce compensation. In essence a combination of but-for cause and scope of risk rule. (Bexiga v. D cannot argue comparative negligence.)  Another rationale/exception is a non-reciprocal imposition of risk. but aggravated negligence. “Utter indifference or conscious disregard for the safety of others. too. worker’s compensation act. Havir Manufacturing Corp.  Strength of the causal connection. Chicago. P would have full recovery if P’s fault is not cause in fact or proximate cause. there can be no comparative negligence. M. (1) One element of the original res ipsa loquitur is that P did not cause the injury. Honeyman 297) (Here.”  P’s illegal activity. (McNamara v.  Applies to P.  D’s reckless or intentional misconduct: not ordinary or even gross negligence. & St. P. RY. Many courts say the adoption of comparative fault just eliminated this element.  When the duty of care D broke was to prevent the precise injury that P suffered from the precise negligence that P committed (when the nature of D’s negligence is failure to guard against P’s foreseeable negligence). P must have been helpless. v. or P’s injury not within the scope of risk created by P’s negligence.  One’s right to lawfully use his property is not subject to the duty of care to guard against another’s negligence. 299)  Two distinctions from Bexiga that might matter here:  There is a (property) right concerned here.g. (Leroy Fibre Co.intent to the harm.  Res Ipsa Loquitur is hard to fit in the comparative fault doctrine.  Causation and scope of risk issues:  Superseding cause (P’s injury not within scope of risk created by D).

M. P consented to the defendant’s conduct by valid contract. P was guilty of an “unreasonable” assumption of the risk which seemed equivalent to contributory negligence.”  Where the plaintiff is retained by. as a matter of law. either because of the consent or because courts concluded on policy ground that the defendant was under no duty or that he was not negligent.  Unreasonable danger is defined as “the likelihood and gravity of the harm threatened outweighed the utility of the conduct and the burden on D for removing the danger. Held. Assumption of the Risk  Should instruct jury that express assumption of the risk bars plaintiff from any recovery even though there was no written document. 299: Owner negligently stored his flax on his land near the railroad. Honeyman 297: Mentally ill patient hanged herself while in hospital.Bexiga v. When P only released D of liability of ordinary negligence. . D breached no duty to the plaintiff. Creasy v. had knowledge of the risk of danger 2. want of consideration. D could be liable for unreasonable danger. RY. Regents of University of California)  Assumption of risk may have scope. (Tunkl v. Revici)  Even when there is a written. P negligently put his hand in the machine and lost his hand. express or implied. Held. voluntarily exposed him/herself to that risk  If a person was compelled to act and had no freedom of choice regarding whether to act. Havir Manufacturing Corp. P. or for the specific purpose of aiding the negligent defendant deal with a known danger. appreciated the risk 3. assumption of risk might be void because of void contract for non-voluntariness. (Boyle v. and necessity of service. RR cannot argue contributory negligence. the defense of comparative negligence is not available. Leroy Fibre Co. courts mean: 1. nurses for violent Alzheimer’s patients. McNamara v. that he or she acted voluntarily. 3. 3. v. 296: D failed to installed safety devices that could prevent users from putting their hands in the machine while the machine is in motion. Railroad negligently set fire to it. & St. 2. Hollenbach)  By assumption of risk. (e. (Crews v. Chicago. we will not say.g. courts hold that the plaintiff has contractually assumed the risk. Rusk)  The test for implied assumption of risk is: 1.

was injured when trying to repair the line. . (Rocha 485)  When one intentionally. or even innocently cause the harm or created an unreasonable risk. for placing another in the perilous position. Regents of University of California (California) Plaintiff was admitted to the hospital on condition that he executes a release. 2. law) Patient got non-mainstream doc to treat her cancer against unanimous main-stream advice to have surgery. N. C. defendant drove a car under known risk of heart attack. sorry. it’s time to do BPL for A. absolving all liability of the defendants. fainted. Died in one year. Hollenbach (Washington) Defendant negligently created a leak in the line. Bigan 484) Even encouraging other to risk does not constitute such legal responsibility when the other is a mentally efficient adult and there was no physical impact. as one of the repairing staff. Held.  Exception:  If one was legally responsible. (Yania v. Defendant also assumed a know risk. In Roman v. Revici (2d Cir. Nonfeasance  One person owes another no duty to take active or affirmative steps for the other’s protection. Plaintiff. he would have a duty to rescue. Court ruled that the risk should be big enough for the defendant to be negligent. Better incentive is provided by not holding people liable for nonfeasance. Moore v.. Altruism makes the problem small and will be discouraged otherwise. should he take all the consequences?  The logic maybe that when A assumed a risk. A clumsy rescue could also prevent real effective rescue.  Rationale: 1. Hartley Motors (Alaska) For $50 rebate. Tunkl v. it really depends on whether the risk assumed is reasonable or not.  Or maybe. 3. plaintiff took part in a training course and signed a release before it.Y. no recovery. If A himself is injured. Held. People should not count on nonprofessionals for rescue. negligently. it depends on who gets injured. Circle of potentially liable nonrescuers would be difficult to draw. Was told that the medication wasn’t approved by FDA and there is no guarantee. Estate of Gobbo. and incurred injury on the plaintiff. in whole or in part. Contract binding! Crews v.  Required by statute or ordinance. contract void. Special Duties of Care 1. Cases: Boyle v. Maintaining an existing circumstance is lawful. If A assumed a risk to others and injured another.

A clumsy rescue could give the rescuer legal liability. Thorn 505)  Contract could create a special relationship and attendant tort duties of care. he became a trespasser. (Grimes 506 Researchers & Families)  Claims rising from contractual duties only extend to parties in the contract. Wright 507)  This rule might be in dispute! 3.  For non-paying guests. Contract requires the lessor to keep the land in repair. (348)  Rationale: to avoid insurance fraud. Personal autonomy. (2) deeper pockets.  Owner has no duty to inspect for unknown dangers. 6. (Rowland v. the standard of care for owner. This is America.4. (Doser 347)  Rationale: (1) passenger is completely dependant on driver to keep safe.  Licensee: person with owner’s consent but have no business purpose. the status of the person entering the land defines legal duty of the landowner. v. (Mobil Oil Corp. Lessor didn’t use reasonable care in exercising the K. 2. operator or person responsible for operation of a motor vehicle seems to be lower: gross negligence or even “willful or wanton” misconduct is required.  For landowners. Contractual Duties  A lessor is liable for physical harm caused by a condition of disrepair if: 1. (privity of contract required) (Winterbottom v. 5. they do owe a duty to warn licensees of known dangers.  Invitee: (1) at least in part for the pecuniary benefit of the landowner or (2) on premises held open to the general public. Christian 368) .  The part of land within which he is an invitee is dependant on owner’s consent. and 2. Parties in the contract have only public duty to third persons. when P enters the railroad. Greater Cleveland Regional Transit Authority 349)  Landowners owe invitees a duty of reasonable inspection to find hidden dangers and to take affirmative action to remedy a dangerous condition. Disrepair creates and unreasonable risk preventable by performance of the K and 3.) Some states impose ordinary standard of care. Duties Derived from Status  Common carriers may owe a higher degree of care to passengers. (Just short of insuring safety. We don’t want to force people into dangerous situations. would bear burden of proof that they are not negligent. (Glandon v. In Glandon.

The duty is limited by reasonably foreseeable risks (by a parent or ordinary prudence).  The “attractive nuisance” exception for children. no consent. which would otherwise improve security. After a trespasser or licensee is discovered in a position of peril. the court held that landlords must use the standard of care which this landlord himself would use had he been a resident because:  Landlord’s control of the common passageways and the tenant’s lack of power to protect themselves. some courts held that school has no duty when it had no custody.  Courts have generally refused to impose upon universities any duty to protect or guide new students with respect to the pleasures and dangers of sex. alcohol.  Enforcing contractual duties would discourage landlords to write security provisions in the contract.  Many cases impose a duty of reasonable care on landlords to maintain common areas in a reasonably safe condition for tenants. Eno)  The basis of such duty is the special relationship.  Trespasser: no legal right to enter the land. Special Relations a) Relationship with Victim  One who is required by law or who voluntarily takes the custody of another such that the other is deprived of his normal opportunities for protection is under a duty to the other.  In Kline 539. there is a duty to use ordinary care to avoid injuring him.  [Common to trespassers and licensees] A duty to refrain from willful. or even overstudy. courts divide: [Many Policies]  In Funchess 538.  Special character of the modern urban multiple-unit lease.  Over half of the jurisdictions have abandoned the categorical approach.  Persons liable are thus limited to school employees who have supervisory responsibility.  Notice the landlord had. (537)  Regarding landlord duties.even if the child is a trespasser. Social guests are usually licensees rather than invitees. the child gets treated like an invitee (D owes a duty of reasonable care). the court refused to enforce a contractual duty because:  Landlords owes no duty to protect others from third persons. dugs. Similarly. who thus have stepped into the role of parental proxy. 4. wanton or reckless conduct. (Marquay v.  Existence of duty is thus limited to periods when (parental) protection is compromised. . Schools are therefore liable for foreseeable injuries proximately caused by lack of adequate supervision. they are in no position to protect against criminal attack.

cost and prevalence of insurance. Inc. (Tarasoff v. liability is imposed only when there is a special relationship between D and tortfeasors or victim. or enforce her judgment in part against one and in part against another. Restatement 2d §308. or to warn. he would cause danger of injury to the person or property of the other. (Tarasoff v. and care ordinarily possessed and exercised by member of that professional specialty under similar circumstances. Regents of University of California 544)  If a therapist determines or should have determined (has reasonable cause to believe) that a patient poses a serious danger of violence to others. b) If one defendant pays more than his share. Regents of University of California 544)  One who sells intoxicating beverages for on the premises consumption has a duty to exercise reasonable care not to sell liquor to a noticeably intoxicated person. (Tarasoff v. knowledge. (Brigance v. (Tarasoff v. see 555. Reasonable degree of skill. Multiparty Problems 1. 553)  For general rule. he could obtain contribution from the . a duty arises to use ordinary care and skill to avoid such danger.b) Relationship with Tortfeasors  Whenever one person is by circumstances placed in a position that if he did not use ordinary care and skill in his own conduct. Therapist-patient relationship is such a special relationship. an unreasonable risk of harm to others) D. Regents of University of California 544)  We only depart the fundamental principle upon balancing of several considerations: a) Foreseeability of harm b) Degree of certainty c) Closeness of connection between D’s conduct and injury d) Moral blame attached e) Policy of preventing future harm f) Extent of burden to D g) Consequences to the community of imposing such duty h) Availability. there is no privilege and he has a duty to exercise reasonable care to protect the foreseeable victim of that danger. Regents of University of California 544)  When preventing the injury would require D to control the conduct of another. (under the control of the actor. Velvet Dove Restaurant. Contribution  Joint and several liability: a) P may enforce a judgment entirely against any one of the Ds who are jointly and severally liable.

it is possible to sue B if A did not pay the full damage. In this case. E. P must have an independent cause of action against B. Employer would be jointly and severally liable. b) Indivisible injury.  [Policy] Ensure compensation especially when one or more tortfeasors have insufficient funds to pay the judgment. A & B each pay one-half. Village of Hancock 818) [Policy] a) To hold other wise would also frustrate the law’s remedial purpose. A can recover the full amount from B.  (1) A’s and B’s tort alone would be sufficient to cause the same harm. retailer can recover indemnity from manufacturer. B is also considered released and P cannot sue B. . If P sued A separately and receives a judgment.  True joint torts. c) A creates a risk of harm by B. c) P cannot recover more than the total amount of her judgment. a covenant not to sue is used instead of a release. tavern cannot obtain contribution from father for compensation to wife and child. A and B agree to race on the public highway during the course of which A collides with the plaintiff. d) Vicarious liability. employer is liable for employee’s tort committed in the scope of employment. (2) (1) isn’t true but still indivisible. ***  Causal apportionment could be infeasible or very difficult. E. (Ascheman v. If P gives A a release upon paying settlement. E.  Joint and several liability applies in 4 situations: a) Concerted action. Because of this rule.  Pro rata share rule: traditionally.  Releases under common law rule: release of one tortfeasors is a release of all those jointly and severally liable. ***  If A is to recover contribution from B. However. A puts P in the risk of B’s negligent or intentional harm.g. Since wife and child don’t have a cause of action against father for loss of support.g. Who should bear burden of proof? Is it inherently desirable? We can use comparative fault apportionment instead.other tortfeasors. a) This rule has been changed in some states. share is divided by fault apportionment. if there is an indivisible injury. a covenant not to sue is used.g. ***  Rule about satisfaction of the claim: P can only be fully compensated once. and still true in contributory negligence jurisdictions.  Indemnity: if A is only technically liable and B is the only one at fault. employer can recover indemnity from employee. P cannot sue other tortfeasors anymore.  In comparative fault jurisdictions. if P settles with A.

” (No.”)  Legislature consciously revived hundreds of DES cases.  Liability is several only. several victims sue a number of manufacturers. which will still ensure that P gets adequate compensation. 825  [Facts] DES. too burdensome. and no inflation.  Adoption of comparative fault did not abolish joint and several liabilities. loss-shifting. c) Bexiga’s rule could also apply. (2) If market share is only one factor in determining “risk”. Fairness. Loss should be born by the party comparatively at fault. Market Share Liability  Hymowitz v. We’re using national!  Because liability is measured by over-all culpability measured by risk posed measured by national market share. Since it was many years ago.b) It would also weaken the deterrence towards the tavern. Compensation 2. Delay and inconsistency. and have to compile a different matrix in each case. not a patented property. no. Here. burden is on Ds.  Why national market? If litigants have to account for inter-state drugs. liability will approximate over-all culpability measured by risk posed (actual harm caused). turned out to cause vaginal cancer and terrible complications when user’s daughters reached adult years. so companies were free to join and leave the market. Superior Court 821) 2. yes. too burdensome. Joint and several liability. (AMA v. Eli Lilly and Company. Encourage Ds to speak and identify the culpable party  Requirement: 1.  Rationale: 1. Parallel activity is insufficient to establish “agreement.  Summers v. a drug widely used for years by pregnant women.  Exculpation? If one didn’t sell to pregnant women. Ds have better access to information (No) 2. mothers usually cannot identify the manufacturer. Tice rule: when causal connection is hard to prove.  To correspond with the exculpation policy. avoid too much .  Market share theory based on the national market:  Why market share? (1) Over the run of cases. so probability is high. not unfair (No)  Concerted action: joint and several liability  Requirement: express or tacit understanding to participate in “a common plan or design to commit a tortious act. If one didn’t participate in a certain geographical sub-market.  Core policies: compensation. All possible tortfeasors are before the court (No) 3. Number is small. It’s a genetic drug. comparatively at fault.

 Exceptions will be made to the “going and coming” rule where the trip involves an incidental benefit to the employer. Employer is a better cost spreader (cost accounting. By forcing the enterprise to internalize the cost of accidents and reflect it in their product price. avoid over-deterrence. IMPUTED FAULT: VICARIOUS LIABILITY A. (Riviello 624) Old test was whether employer could exercise close control over his employees during the period of their service. thus increasing the risk of injury by requiring longer commute distance. rational and fair distribution of liability. not common to commute trips by ordinary members of the work force.  Core circumstance: causation is missing. 3.  Test: whether the act was done while the servant was doing his master’s work. III. especially when employers find it beneficial to pay for employee’s travel time and expenses in order to reach them.)  [Policy] 1. 627) B. Independent Contractors . thus giving employers an incentive to improve safety. Assurance of compensation 2. or with what disregard of instructions. Employers  Respondeat Superior: scope of employment.  Such a benefit is found when employers reach out to a labor market in another area. WLW Jacor Communications.  “Going and coming” rule says an employee going to and from work is considered outside the scope of employment. avoid delay and inconsistency. (Hinman v. the market will favor the cheaper (safer) product. Westinghouse Electric Co. insurance. thus distribute the burden among those benefited by the enterprise. (Leichtman v. Inc. no matter how irregularly. price of product) (Riviello 624) 4. Equitable/fair spreading of losses caused by an enterprise (Lisa 624) (include in the costs of operation inevitable losses to third persons incident to carrying on an enterprise. Employers are best able to prevent future injuries.burden.  An employer is not legally responsible for the intentional torts of its employees that do not facilitate or promote its business. matching Fruit 625) 5.

Fletcher 676) 1. 2. Payment of wages 3. (DC v. Hampton 644)  In Hampton. We want foster homes to take control. and holding otherwise would provide the opposite incentive. after making the distinction between right and actual exercise of control. and reduces risk according to the law of large numbers. Power to discharge 4. none except (2) might be accomplished. Historic Foundations  The person who for his own purposes. The court’s reasoning therefore maybe: since actually controlling the foster home’s day-to-day operation is probably infeasible and most likely undesirable. NO FAULT: STRICT LIABILITY A.  By referring to the instrumental goals above. use the following considerations: 1. must keep it in at his peril. or he will be prima facie answerable for the natural consequences of their escape.  Two doctrinal requirements here: (Rylands v. not an independent contractor. and collects and keeps there anything likely to do mischief if it escapes. not the actual exercise of control. Power to control the servant’s conduct 5. C. (2) fails as well.  D is not liable for natural use. Enterprise Liability [675-660] D. The right to control counts. IV. Selection and engagement of the servant 2. if the water . Insurance  Insurance reduces uncertainty. the court held that there is no master-servant relationship because there is no actual control. we don’t want to apply respondeat superior doctrine here because: 1. To apply respondeat superior doctrine. (master-servant or principal-agent relationship)  To determine the existence of the relationship. Whether the work is part of the regular business of the employer  (4) is decisive. Here for example. the tortfeasors must be P’s employee. brings on his land. Unnatural use. increases utility by reducing uncertainty caused anxiety. If actual control is impossible despite the right. None of the instrumental goals is accomplished here. Damage inflicted by force or breach of peace.

accumulated itself and escaped by “the operation of the laws of nature.  When you have some intuitive feeling about how the case should come out. Contributory negligence.  Elements: 1. Direct causal connection. 2. (2) some kind of unlawfulness or wrongfulness.  Defenses and exceptions: 1.  For trespassory torts. a duty implicitly undertaken in a contract of sale. there will be extended liability. Nuisance is also a strict liability. if directness is not proved.  However. (Exner 684)  Generally.” 2. Act of God. act of God. Contemporary Strict Liability [687-694] C. Product Liability 1. Developments 1. indirect consequential damages are recoverable only when (1) D was wanton or negligent and (2) damages was not unavoidable accident. chain of causation is broken. 3.  Nuisance has two key points: (1) continuance. . unless he knew that the beast has a vicious propensity to attack man. a trespass is an act that directly causes and injury. Will do mischief is escapes. Privity Requirement  Bases on negligence. B. 2. Intervening events/superseding cause. you should translate that into some doctrinal ambiguity and argue that the ambiguity should be resolved in your favor.  D is liable in a blasting case for damages caused by projection of rocks and debris and by creation of a vacuum. 2.  Defenses: 1.  Must be “in privity of contract” (sell directly) to be liable. Damage inflicted by force or breach of the peace. No liability for injury to the person of others by escaped cattle.  Court of Exchequer in Rylands argued that (1) D’s act was lawful and (2) D had no reason to believe or suspect that any damage was likely to ensue. The escape was owing to P’s fault.

led to new developments. in the case of defective products. recognized an implied warranty that goods are “fit for the ordinary purposes for which such goods are used”. ran to the ultimate purchaser not merely the retailer. . privity is required.  Henningsen v. held. even active negligence was protected by the privity 2. (697). Ford Motor Co. Buick Motor Co.  Greenman led to Restatement Second of Torts 402A: (1) seller strictly liable. 3. .  Not strict liability. car’s steering failed and crashed. Philip Morris Inc. (696). 5. privity would not be required. and that they are as good as the seller claims they are. it is then a thing of danger . Clute (p. no fault required. If [the manufacturer] is negligent where danger is to be foreseen. “[i]f the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made.  Just like contract: liability for breach is strict. Inc. 4. Bloomfield Motors. (boiler explodes)  Thomas v. tobacco industry statement about safety of smoking and industry research on safety. led to the introduction of other theories. applied general negligence principles. (697). (3) rationale is . (Present) Strict Liability  Greenman v.” [Policy]: to insure that injuries from defective products are compensated by manufacturer rather than injured persons who are powerless to protect themselves. (windshield claimed “shatterproof” blinds one eye)  Punitive damages: Williams v. “the liability is not one governed by the law of contract warranties but by the law of strict liability in tort.696). a liability will follow. (2) privity rules were abolished. recognition of extreme cases: “where death or great bodily harm would be “the natural and almost inevitable consequence of the sale” under a false label. (deadly poison labeled “belladonna”) Negligence  MacPherson v. Warranty  UCC 2-314: for any seller of goods. a manufacturer would be liable for injuries resulting from conditions of the product that were misrepresented.  “[E]volutionary dead-end. rule. Yuba (691). there was an implied warranty in addition to this express warranty. (696). Misrepresentation  Baxter v. .  Limited. disclaimer of liability would be ineffective. Winchester (696). even without privity. Losee v.” (wheel of car purchased from dealer collapsed)  Substituted foreseeability for contract or undertaking. $79 million in punitive damages.

will have to raise price. P must prove: . should bear risks of such activity. 2.  Injuries are statistically associated with manufacturing and selling. Price higher. Similarly. (4) the consumers’ reasonable expectations defined what counted as a defective product. 4. The Prima Facie Case a) Manufacturing Defects  To recover under strict product liability rule. (No injured person should be required to give up a claim against the defendant merely for social benefit. Liability costs. 3. Incentives/Deterrence  Manufacturer will make safer products: 1. 2. for practicality? 5. Encourage people to make the activity safer is they knew the real cost of individual products (as opposed to blanket insurance). 2. 1. Enterprise liability or “loss spreading. Compensation is needed. more practical way to secure compensation. Fairness  Consumer Expectation: Manufacturers implicitly represent that the products are safe and healthy. thus lose market share.  Manufacturer are better able to avoid the accidents and make the products safer.“unreasonable danger”. he would have indemnity from the manufacturer.”  More easily spread the costs.  Most products are defective because of negligence.) The argument works against 2nd ar. thus liability should be a cost of doing business.  Manufacturer imposes a “nonreciprocal risk” on the consumer. 3. but should be “taxed” by tort liability.  Consumers will turn away from unsafe products. Practicality  If retailer is liable. so why not let plaintiff directly sue manufacturer? It would save time and cost. raising prices/purchasing insurance. so we should save the legal system the time and cost to prove negligence. 2. Consumers are justified to rely on it.  The manufacturer benefits for sending products into commerce. they also do it at a lower cost. Price reflects the real cost/risk of operation. Some people will get the message. Rationale (698-701) – All Arguments/Policies 1. manufacturing shouldn’t be prohibited. Economic Loss [702-706] 4. For liability. 3.

the risk of injury to be balanced is not a risk intended as the primary function of the product. 723) (P shot by criminal with extra powerful bullet. 707) (Coke bottle exploded in P’s hand without thermal-shock or impact. 2. 714)  To establish (2). Olin Corp. (McCarthy v. The safer alternative was both technologically and economically feasible when the product left the control of the manufacturer. Held. If it is. sued bullet manufacturer. v.  Unreasonably dangerous/defective element by the following two tests: 1. Norman 718)  In the risk/utility analysis. Minster Machine Co. unreasonably dangerous for its intended use.) b) Design Defects  P must prove: an 1) unreasonably dangerous product design 2) proximately caused or enhanced P’s injuries in the course of an 3) intended or reasonably foreseeable use. 3..  Defined as a physical departure from a product’s intended design. 1 and 2 combined is very close to negligence.1. and may be the only available way. 2.  Mechanical and economic feasibility of an improved design. P must show that there is a safe alternative available: 1. According to 2.  Consumer’s expectation test is used. Inc.  Gravity of danger posed. (Lee v. Circumstantial evidence is often sufficient. The safer alternative would have prevented or significantly reduced the risk. Consumer expectation test: The product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. (Knitz v. liability is not imposed when P hasn’t eliminated the probability that improper handling by intermediate parties caused the injury. (excessive preventable danger) Factors include:  Likelihood that the product design will cause injury. There was a safer alternative.) . (Honda of America Mfg.     The product was in fact in a defective condition. The defect was the proximate cause of the injury. without substantially impairing the product’s utility. the test will not be applied. Crookston Coca-Cola Bottling Co. Risk/utility analysis test: If the risk of danger inherent in the challenged design outweighs the benefits of such design. circumstantial evidence is probably enough. (Leichtamer 712) 2. 3. should submit the issue of strict liability to jury. Such defect existed when the product left defendant’s control. P is not required to point out and prove the specific defect.

731)  Even if a safety device is installed when it left manufacturer’s hands. (Liriano v. as long as one of Ds did. 742)  Post-sale warning duties only exist when the product has a defect at the time of . or activity is obviously dangerous doesn’t relieve D the duty to put up a warning. Hobart Corp. (Liriano v. or activity is dangerous. There is a safer alternative. 731)  [Following the above reasoning] A product becomes defective when the product’s (1) foreseeable risks of harm (2) could have been reduced or avoided by the provision of a (3) reasonable warning. General Motors Corp. (Comstock v. and some problems are independent. Hobart Corp.  Explain that people need not risk the danger posed. and the omission of such a warning renders the product “not reasonably safe. not everyone can play several positions. that the place. Reasonable standard is used. object. (Liriano v. Hobart Corp.  Manufacture defect cases are governed by strict liability. that very causal tendency is evidence enough to establish a prima facie case of cause-in-fact. Lead Industries Ass’n 739)  Most courts hold that when the manufacturer did not know about the danger. (730) c) Information Defects  A warning may serve two functions:  State that a particular place. (Fault assumption.  A duty to give prompt warning exists when a latent defect which makes the product hazardous to life becomes known to the manufacturer shortly after the product has been put on the market. (Here. object. 731)  Civil conspiracy has two elements: a) Agreement (concerted action) b) Tortious conduct by one of the parties in the agreement in furtherance of the agreement  Under this rule. there is a duty to warn against removal of safety devices.)  Therefore. to tell the reader there is a safety device and the machine is meant to be used with it. Assist the reader in making choices. P doesn’t need to point out the specific conspirator that caused the injury. The burden the shifts to the defendant to prove that its negligence was not such a but-for cause. there is no duty to warn. while design defect cases are governed by negligence. (Lewis v. Henderson: design problems are polycentric and cannot be appropriately litigated in court.”  When D’s negligent act is deemed wrongful precisely because it has a strong propensity to cause the type of injury that ensued. such as that in Leichtamer (rollbar collapsed).

incentives.  Under the 3d Restatement. and consumer’s reasonable expectations. if it's the paint manufacturer that deals with the consumers. no continuing duty to warn. 731: No warning on meat grinders. Defenses a) Comparative Fault  Principles of comparative fault and comparative negligence do not apply to product liability cases. Hobart Corp. it is to be included in the contributory negligence instruction. Inc. Recall P must prove that the product is unreasonably dangerous in a reasonably foreseeable use. D would be liable. Held. (Three policy goals. why hold the pigment manufacturer liable?  Pigment manufacturer match the instrumental objectives better. Magic Chef. The use could be negligent. (Hughes v.”  In an ordinary negligence case. but strict liability.  The start of the argument is that. Held. matching. but an element of P’s prima facie case. when doctor know the risk. Inc.)  "Learned-intermediary defense"  The pigment manufacturer could argue that they warned the paint manufacturer. should provide warning.  A reasonably foreseeable use is not a reasonable use. Cases: Liriano v.) . d) Misuse  Misuse of product is not an affirmative defense. not the conduct of the two parties. Magic Chef. but as long as it is foreseeable.) 5. Another example: Drug Company and doctor. There is a safety device available. It’s not about blameworthiness. No need to prove cause in fact.  The focus of product liability cases is the nature of the product. (Bowling v. Cincinnati. 756 P got under truck bed when it wouldn’t move down. Heil Co. (Hughes v. 762)  Cost-spreading.)  Assumption of risk is when P “voluntarily and unreasonably proceeded to encounter a known danger. it is different from misuse. 742 Safety device designed years after sale. 762 P used the stove when pilot lights were off. Inc.  In a products liability case. the "learned-intermediary defense" is not viable if the intermediary is not reliable. One can do one without doing the other. (Gregory v. died of crash.manufacture.  A separate misuse jury instruction could be erroneous in that it gives undue emphasis to what P knew or should have known.

which is a bizarre and irrational consequence.”  It’s a clear cut.  Real estate: divided. Heil Co. Restatement: “distributes as its own a product manufactured by another” is liable. Inc.  Clear: commercial providers are distributors (you. 756) b) Comparative Causation  Comparative indemnity doctrine may be utilized to allocate liability between a negligent and a strictly liable defendant because:  The policy to allocate burden to a party more able to distribute the cost does not require or even permit another negligent tortfeasors to escape liability. (2) businesses operating out of it usual line one case termed it an “occasional seller. D is only strictly liable. Unclear: (1) non-commercial providers could systematically provide (charity provides defective drugs). (matching theory)  The can have insurance. D is liable.” not liable. the juries are perfectly competent to allocate fault and burden in such cases. Nest-Kart 822 P is both strictly and negligently liable. (Bowling v. not in car business. (Safeway Stores.) c) “Sellers” of “Products”  This point deals with the scope of products liability. 756)  All conducts in traditional comparative negligence could be put in 1 of 3 categories:  Failure to discover the defect. 756)  Reiteration of some policies:  Manufacturer assumes and undertakes a special responsibility when marketing the product.  Used goods business: cases are divided. Since they market the product. What classes of parties could be liable?  General rule: distributors and only distributors.  Voluntarily assumes the risk of a know defect. sold your car).  b) could include an “affirmative action. The manufacturer has no liability (a complete defense) if:  P voluntarily and knowingly assumed the risk occasioned by the defect. Present . franchisor. under c). Note: product liability traditionally doesn’t apply.  Failure to guard against a possible defect. Heil Co. they should bear the burden as a cost of production.  Although there is theoretically “no fault” in strict liability. Under a) and b). trademark licensor could be. (spreading cost) (Bowling v. D is not liable. v.  Clear: wholesalers. Heil Co. (Bowling v.  A contrary rule would ban a non-negligent manufacturer from sharing burden but allow a negligent manufacturer to share cost.  P misused the product in an unforeseeable manner. retailers are distributors. Unclear: endorser.

3. Social Security and the Problems of Bureaucracy  Taxing Industry and Eliminating Its Tort Liability  National Childhood Vaccine Injury Act. No-Fault Auto Insurance [967-71.A.) (2) Determination of damage under the current . 42 U. 2.stage. and (4) the threat to the stability of the vaccine supply posed by occasional large recoveries.  Cons: (1) Tort law system provides important incentive for the safe manufacture and distribution of vaccines. § 300aa-1  Pros: avoids tort law system’s (1) uncertain recoveries.  Animals? Are they products? V. Worker Compensation Schemes [914-21] 1.” So supplier and lessor could be covered. (2) high cost of litigation. only builders are threatened.  Sale is not required (customer injured in shop by an exploded can has a claim). “In the business of supplying goods. 973-77] C. Problems with the Tort System [901-912] B. Job Relatedness [925-29] Accidental Injury [930-36] Exclusive Remedy [938-44] D. THE INSURANCE ALTERNATIVE A.S. Socialized Compensation 1. (This is solved by (1) transferring the tort claim to the government and (2) giving victims either to accept award or pursue tort claim. (3) delays in obtaining compensation.  California held landlords and lessor not liable because they are not in a good position to urge the manufacturer of the defect.C.  Retailers and wholesalers have indemnity claims in its favor against the manufacturer.

(cannot ask Secretary to specify alternative available jobs in addition to decision by the Grid) a) There could be a lot of problems. (See 960 note 2)  Before 1978. 2.  This system provides uniformity.  Point by Spann: Whenever there is a government sponsored system. Goals and Objectives 1) Judicial Process  Does the tort law system systematically allow frauds?  The fact that the judicial process judges each case on its own merits and doesn’t label defendants or plaintiffs. which is defined as non-existence of suitable jobs in the national economy. the Secretary relied on vocational experts to establish disability.C. there will be bureaucracy.A. are all these pursuits lost in other systems? 3) Safety and deterrence  The tort system (1) promote optimal risk-taking and (2) deter undesirable risks.system is too arbitrary.S. § 40101  Social Security Disability Benefits  Applicant has a prima facie case when (1) disabled and (2) cannot perform original job. (can use the Grid even in a hearing) a) As a counter. Things have changed. Is that lost. the agency may rely on its rulemaking authority to determine issues that do not require case-by-case consideration.”  Since the government made vaccination obligatory.  How does other systems do? 2) Personal accountability and social responsibility – fairness or justice. simplicity and efficiency. For example. thus providing sufficient procedural protection. the whole point of a hearing is to individualize the claim.  Accuracy of the Grid has been tested fairly in rulemaking. Campbell 963  Even where an agency’s enabling statute expressly requires it to hold a hearing. that the rules of law take individual characteristics and particular fact into consideration. Burden shifts to the agency. . rather than rely on the grids. there is an argument that the government has a responsibility to ensure compensation for these inevitable injuries. promotes justice.  Taxing the Public to Protect Industries and Provide Compensation to Victims  Air Transportation Safety and System Stabilization Act. depends on specific “special master. 49 U.  Now uses the Medical Vocational Guidelines – The Grids  Heckler v. P didn’t take part in the initial hearing passing the Grid.

raising premiums.  How do you compare social security and worker’s compensation? (key difference is judgment. Are these as effective? 4) Costs  90% return rate by pure no-fault system. use of reliable data) 5) Delay in payment 6) What is the most important issue to you? . compared to around 50% by liability insurance dollar. say inspection. Other systems might do the same.

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