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Homework Notes

Class 1 - 8/23/2010

Introduction to Tort Liability

When should unintended injury result in liability?

• The fundamental issue addressed by a system of tort liability for

unintended injury is when losses should be shifted from an injury
victim to an injurer or some other source of compensation.

Hammontree v. Jenner

Subject Matter: Appeal of a case involving personal injuries and

property damage arising from a car accident.

Facts: Jenner (D) had an epileptic seizure and lost consciousness while
driving his car. D’s car crashed into Hammontree’s (P) store. D had had
seizures in the past but had not had one in several years and the DMV
had issued him a license to drive. P pursued strict liability damages
rather than negligence. D argued that he was not liable because he
had taken all necessary precautions to prevent a seizure and the
accident was unforeseeable. At trial, the court entered judgment in
favor of D and P appealed on the grounds that the court erred in not
granting P’s motion for summary judgment based on strict liability.

Issue: What standard of liability is applied in determining damages

where the defendant suffers a seizure while driving causing him to
have an automobile accident?

Rule: the foregoing cases generally hold that liability of a driver,

suddenly sricken by an illness rendering him unconscious, for injury
resulting from an accident occurring during that time rests on
principles of negligence.

Holding and Rule: The driver is only liable if the seizure is

foreseeable and he took no special actions to prevent it. The standard
for liability is essentially negligence. D did not have a reason to expect
to have a seizure and was therefore not liable.
When should unintended injury result in liability?

• Procedure - The aggrieved party must initiate the claim and

pursue it until she gains redress or has exhausted her legal

• Damages – Once the a plaintiff has brought herself within the

rules allowing recovery for personal injury, the traditional goal of
tort law has been to restore her to the equivalent of her
condition prior to the harm.

• Collecting on a judgment – Once a judgment for a plaintiff

becomes final which requires that all appeals be exhausted for
the time for any further appeal has expired—the matter of
collecting on that judgment arises; a judgment is not self-

Class 2 - 8/25/2010

Vicarious liability (17-30)

Recoveries in cases of death are regulated by statue because

under early common law the death of either the plaintiff or the
defendant terminated the lawsuit.

• As for a decreased victim, two sperate interests are involved: the

victim’s interest in her own bodily security and her dependant’s
interest in continued economic support and in other factors we
shall consider later.
o (1) “survival statues” – allow the estate of the deceased to
bring suit for any harm for which the deceased could have
sued had she survived.
 This would include such items as medical expenses,
lost wages, and pain and suffering up to her death.
o (2) “wrongful death statues – an action may be brought by
and on behalf of legally designated beneficiaries, usually
close family members or next kin, to recover for the
pecuniary loss that the death has caused.

“Respondeat superior”: “let the superior made the answer”;

doctrine holding an employer or principal (one who authorizes another
to act on their behalf as agent) liable for employer’s or agent’s
wrongful acts committed within the scope of the employment or
Policy goals: prevent future injuries, assure compensation of
victims, and spread losses equitably
Christensen v. Swenson

Facts: (P hit by D while D was on break from work getting lunch –

reasonable minds could differ on 3 factors) P was a security guard
working at a plant and took a 15 minute break and drove across the
street to get lunch. During her lunch break P got into a car accident.

Issue: Whether the employer was vicariously responsible to the

plaintiff for the accident that occurred.


Under the doctrine of Respondeat Superior employers are

vicariously liable for torts committed by employees while acting within
the scope of their employment .
• Whether an employee is acting within the scope of her
employment is ordinarily q question of fact.
• The question must be submitted to the jury “whenever
reasonable minds may differ as to whether the employee was at
a certain time involved wholly or partly in the performance of the
[the employer’s] business or within the scope of employment.”

An employer is liable for the tortuous acts of their employees if acts

pass the Birkner Test
Birkner Test: Acts so closely connected with what employee is
employed to do; acting w/in “scope of employment”
1. Conduct generally kind expected / hired for; must be
about the the employer’s business and the duties
assigned by the employer as opposed to being
wholly ivolved in a personal endeavor.
2. Acting w/in hours and ordinary spatial boundaries of
the employment
3. Acting to serve employer’s interest; the emloyee’s
conduct must be motivated, at least in part, by the
purpose of serving the employer’s interest.
Holding: If reasonable minds can differ on the on the three factors
summary judgment should be denied in favor of further proceedings.

Economics justifications for V.L

(1)VL gives employers strong incentives to shrewdly select

employees and effectively supervise employees.
(2)VL gives employers an incentive to discipline employees who
committed negligence and thereby exposed the employer to
a. This discipline can take the form either of a demotion or an
outright discharge
(3)Insofar as the prospect of employee negligence cannot be fully
eliminated by ambitious selection, training, supervision, and
disciplining of employees, VL gives employers incentives to
consider alternatives to employee efforts.

Independent contractors – apparent authority

Roessler v. Novak

Facts: (P’s serious medical condition missed by hospital; P had no

choice in drs.; even though D was independent contractor, acted in
hospital’s apparent authority => hospital liable to P). P is alleging that
D had misread scans as result he suffered great personal harm. P want
to sue the hospital as the principle for the doctor (agent).

Issue: Whether the hospital is vicariously liable for the acts of

physicians even if the physician is and independent contractor.

Rule: A hospital may be held vicariously liable for the acts of

physicians, even if they are independent contractors, if these
physicians act with the apparent authority of the hospital.
• Apparent authority is authority which a principal knowingly
tolerates or permits, or which the principal by its actions or
words holds the agent out as possessing.
• The rationale for the doctrine of apparent authority is that a
principal should be estopped to deny the authority of an agent
when the principal permitted an appearance of authority in the
agent and, in so doing, justified a third party’s reliance upon
that appearance of authority as if it were actually conferred upon
the agent

Principle is liable to a 3rd party for acts of its agent which are
within agent’s apparent authority
o Apparent authority: authority in which principal knowingly
tolerates or permits, or which the principal by its actions or
words hold the agent out as possessing
o Apparent authority requires: (must find all three elements)
a. Representation by purported principal
b. Detrimental reliance; reliance on that
representation by 3rd party
c. Change in position by 3rd party in reliance on
Analysis: sufficient amount of facts are required to show that there
was apparent authority.

Class 3 - The negligence principle

The historical development

o The law negligence is of relatively recent origin.

o The old common law had very little to say about personal injuries
caused by careless behavior.
o Before the industrial revolution, the infrequent cases of
accidental harm that occurred were filtered through the Anglo-
American writ system—a procedural system requiring that tort-
like wrongs be pleaded as actions in “trepass” or “trespass on
the case.”

Brown v. Kendell

Facts: There was an action of trespass for assault and battery.

Commenced against Kendell (defendant) now deceased and
represented by executrix. In this case there were dogs fighting, one
belonged to the plaintiff and the other to the defendant. During the
course of the dog fighting it appears that the defendant used a stick to
attempt to break up the fighting and in doing so he hit accidently the
plaintiff causing him an eye injury.


(1)trespass – if the damage complained of is the immediate effect

of the act of the defendant trepass lies
(2)Case – if consequential only, and not immediate, case is the
proper remedy.

“the plaintiff must come prepared with evidence to show either that
the intention was unlawful, or that the defendant was in fault; for if
the injury was unavoidable, and the conduct of the defendant was
free from blame, he will not be liable.

If in the prosecution of a lawful act, a casualty purely accidental

arises, no action can be supported for an injury arising therefrom.

Notes: The court said that “We can have no doubt that the act of the
defendant in attempting to part the fighting dogs, one of which was his
own, and or the injurious acts of acts of which he might be responsible,
was a lawful and proper act, which he might do by proper and safe

Holding: The burden of proof on the defendant was wrong and the
court established that the burden of proof is not the plaintiff to

Class 4 – The Standard of care

What stand does a court utilize in deciding whether the

defendant’s behavior was “negligent”?

-Unreasonable risk

Adams v. Bullock

Facts: The (D) runs a trolley line in the employing the overhead wire
system. At one point the road is crossed by a bridge and pedestrians
often use the bridge as short cut between streets and children play on
it. The (P) a 12 year old boy come across the bridge, swining a wire
about eight feet long and in swinging the wire he brought it in contact
with (D) trolley wire which ran beneath the structure. The side of the
bridege was protected by parapet (wall) 18 eiches wide. The (P) was
shocked and burned when the wires came together.

Issue: Whether the (D) was liable in using an overhead trolley for
negligence when a young boy was shocked by the trolley wires.

Rule: In the lawful exercise of its franchise negligence, cannot be

imputed because it used one system and not another. Moreover, if a
duty to adopt all reasonable precautions to minimize the resulting
perils is found blame should not negligence should not be assigned.
(Evidence is very important)

Reasoning: The trolley wire was so placed that one standing on the
bridge or even bening over the parapet could reach it. Only some
extraordinary causally, not fairly within the area of ordinary prevision,
could it a thing of danger.

Braun v Buffalo – No vigilance, however alert, unless fortified by the

gift of prophecy, could have predicated the paint upon the rote where
an accident would occur.

No special danger at this bridge warned the defendant there was need
of special measures of precaution. No like accident had occurred
before. No custom had been disregarded.
Greene v. Sibley

Mechanic case where a patron tripped over his leg. The court said that
“he was doing a common and smiple act in the plain of those around

Concept of “ordinary caution” or “reasonable care”

• Negligence is the doing of something which a reasonably prudent

person would not do, of the failure to do something which a
reasonably prudent person would do, under circumstances
similar to those shown by evidence.
• It is the failure to use ordinary or reasonable care.
• Ordinary or reasonable care is that which person of ordinary
prudence would use in order to avoid injury to themselves or
other under circumstances similar to those show by the

Defining unreasonable risk

United States v. Carroll Towing Co.

Facts: The harbormaster and a deckhand aboard the Carroll, a tug,

readjusted the lines holding fast the Anna C, a barge owned by plaintiff
Connors. Because of their negligence in securing the Anna C, it later
broke loose and rammed against a tanker, whose propellar broke a
hold near the bottom the barge. Anna C soon filled wither and sank,
with loss of cargo (owned by the U.S). Carroll sought to reduce
damages pursuant to admiraly law because the plaintiff’s bargee was
absent from the Anna C.

Issue: Whether the absence of a bargee or other attendant will make

the owner of the barge liable for injuries to other vessels if she breaks
away from her moorings.

Rule: Since there are occasions when every vessel will break from her
moorings, and since, if she does, she becomes a menace to those
about her, the owner’s duty, as in other similar situations, to provide
against resulting injuries is a function of three variables: (1) the
probability that she will break away (2) the gravity of the resulting
injury, if she does (3) the burden of adequate precautions.

Reasoning: We need not say whether, even in such crowded water as

New York Harbor a bargee must be aboard at night at all, it may be
that the custom is otherwise…and that, if so, that situation is one
where custom should control.

Holding: In such circumstance we hold—and it is all that we do hold—

that it was a fair requirement that Conners Company should have a
bargee aboard (unless he had some excuse for his absence), during
the working hours of daylight.

Note 1

Hand approach – negligence case

The judge (or jury) should attempt to make explicit the standard that
the courts had long applied.

(1)the magnitude of the loss if an accident occurs

(2)the probability of the accident’s occurring
(3)the burden of taking precautions that would avert it

The cost of prevention is what Hand meant by the burden of taking

precautions against the accident.

When the cost of accidents is less than cost prevention, a rational

profit-maximizing enterprise will pay tort judgments to the accident
victims rather than incur the larger cost of avoiding liability.

Reasonably prudent person

Bethel v. New York City Transit Authority

Facts: Plaintiff was hurt on defendant’s bus when the “wheelchair

assecible seat” collapsed under him. Plaintiff could not prove that
defendant actually knew of the defect be relied on a theory of
constructive notice “evidenced by a computer repair report containing
several notations.

The trial court charged the jury, that as a common carrier, the bus
company had a duty to use the highest degree of care that human
prudence and foresight can suggest in the maintenance of its vehicles
and equipment for the safety of its passengers.

Issue: The (D)

Rule: Basic negligence standard of reasonable care under the

circumstances is applied to common carriers. There is no stratification
of degrees of care as a matter of law. Rather there are only different
amounts of care as a matter of law

Reasoning: The court of appeals made the following statement “in

this century, however, through technological advances and intense
governmental regulation, “public conveyances…have become at least
s safe as private modes of travel.”

Reaonable person standard: necessarily takes into account the

circumstances with which the actor was actually confronted when the
accident occurred, including the reasonably perceivable risk and
gravity of harm to others and any special relationship of dependency
between the victim and the actor.

The reasonable person standard provides sufficient flexibility,

and leeway, to permit due allowance to be made…for all the particular
cirumstances of the case which may reasonably affect the conduct

Holding: A common carrier is subject to the same duty of care as any

other potential tortfeasor—reasonable care under all of the
circumstances of the particular case.

Class 5 – The roles of judge and jury – 9/1/10

The roles of judge and jury

Baltimore & Ohio Railroad Co. v. Goodman

Facts: Suit brought by widow and administraxtrix of Nathan Goodman

against the petitionr for causing his death by running him down at a
grade crossing. Goodman was driving an autobile truck and was killed
by a train running southwesterly across the road at a rate of not less
than sixty miles an hour.

Issue: Whether Goodman’s action as relating to this case warrant a

question to be presented to jury.

Rule: If a driver cannot be sure otherwise whether a train is

dangerously near he must stop and get out his vehicle, although
obviously he will not often be required to do than to stop and look.

Reasoning: It seems to us that if he relies upon not hearing the train

or any signal and takes no further precaution he does so at his own
risk. If at the last moment Goodman found himself in an emergency it
was his own fault that he did not reduce his speed earlier.

Holding: It is true that the question of due care very generally is left
to the jury. But we are dealing with a standard of conduct, and when
the standard is clear it should be laid down once for all by the courts.

Pokora v. Wabash Railway Co.

Facts: Pokora was driving his truck west acoross four tracks of
defendant’s railedroad. There was a string of boxcars cutting off the (P)
view of the track north. As the (P) moved ast that track he listend but
hear no bell or whistle. As he reached the main track he was stuck by a

“For all that appears, he had no view of the main track northward, or
none for a substantial distance, till the train was so near that escape
had been cut off.”

Issue: Whether a jury should deicide the following question “whether

reasonable caution forbade his going forward in reliance on the sense
of hearing, unaided by that of sight”

Rule: Extraordinary situations may not wisely or fairly be subjected to

tests or regulations that fitting for the common-place or normal. In
default of the guide of customary conduct, what is suitable for the
traveler caught in a mesh where the ordinary safreguards fail him is for
the judgment of the jury.

Analysis: Standards of prudent conduct are declared at times by

courts, but they are taken over from the facts of life. The (D) did not
not show whether there was a locomotive at the forward end, or
whether the cars were so few that a locomotive could be seen.

If he was to leave his car near the curb, there was even stronger
reason to believe that the space to be covered in going back and forth
would make his overvations worthless.

Reasoning: The opinion in Goodman’s case has been a source of

confusion in the federal courts to the extent that it imposes a standard
for application by the judge, and has only wavering support in the
courts of the states.

Holding: The judgment should be reversed and the cause remanded

for further proceedings in accordance with this opinion.
Akins v. Glen Falls City School district

• Plaintiff was hit in the eye by a foul ball while watching a high
school baseball game. Her suit against the school district, which
owned the filed was dimissed.
• The field was equipped with adequate backstop to protect fans
from balls.
• Plaintiff, who arrived while the game was in progress, stood
laong the third base line, 10 to 15 feet past the end of the
• She was hit ten minutes after arriving.


• The majority held that there was no basis for a jury to find
defendant negligent.
o Not every case is for the jury.
o On the record here, “The school district fulfilled its duty of
reasonable care to plaintiff as a matter of law and,
therefore, no question of negligence remained for the
jury’s consideration.


• The dissenters argued that the majority had engaged in “an

unfortunate exercise in judicial rulemaking in an area that should
be left to the jury. This attempt to precisely prescribe what steps
the propretor of a baseball field must take to fulfill its duty of
reasonable care is unwarranted and unwise.”
o In the present context, the majority has held as a matter of
law that the proprietor of the baseball field has fulfilled his
duty of reasonable care by erecting a backstop that was 24
feet high and 50 feet wide.

Andrews v. United Airlines, Inc.

Facts: A brief case fell from an overhead compartment and seriously

injured plaintiff Andrews. No one knows who opened the compartment
or what caused the briefcase to fall, and Andrews doesn’t claim that
airline personnel were involved in stowing the object or opening the

(P) claim is that the injury was foreseeable and the airline didn’t
prevent it.
Issue: Whether a jury should decide if United Airlines should be held
liable for the injury to the (P).

Rule: Given its awareness of the hazard, United may not have done
everything technology permits and prudence dicates to elimiate it. …
common carries must use the best precautions in practical use ‘known
to any company exercising the utmost care and diligence in keeping
abreast with modern improvemtn in…such precations.

Reasoning: A jury could find United has failed to do “all that human
care, vigilance, and foresight reasonably can do under all the
circumstances.” Jurors, many of whom will have been airline
passengers, will be well equipped to decide whether United had a duty
to do more than warn passengers about the possibility of falling

Holding: A reasonable jury might conclude that United should have

done, it might also find that United did enough. Either decision would
be rational on the record presented to the district court which, of
course, means summary judgment was not appropriate.

Class 6 – 9/1/10

The role of custom & statutes

The Role of Custom

Trimarco v. Klien

Facts: (P) tenant was badly cut when he fell through the glass door
that enclosed his tub in defendant’s apartment building. (P) presented
expert evidence that at least since the 1950s a practice of using
shatterproof glass in bathroom enclosures had come into common use,
so that by 1976, the date of the accident the glass door here no longer
conformed to accepted safety standards.

Defendant’s managing agent admitted that at least since 1965 it been

customary for landlords who had occasion to install glass for shower
encloures, whether to replace broken glass to or compy with the
request of a tenant or otherwise to do so with some material such as
plastic or safety glass.

Issue: Whether the custom of replacing glass with shatterproof glass

was required by landlords without notice by a tenant of the danger or
by reason of a similar accident in the building.

Rule: When proof of an accepted practice is accompanied by

evidence that the defendant conformed to it, this may establish due
care and contrariwise when proof of a customary practice is coupled
with a showing that it was ignored and that this departure was a
proximate cause of the accident it may serve to establish liability.

Once its existence is credited, a common practice or usage is still not

necessarily a conclusive or even a compelling test of negligence .
Before it can be, the jury must be satisfied with its reasonableness just
as the jury must be satisfied with reasonableness of the behavior
which adhered to the custom or the unreasonableness of that which
did not.

Reasoning: It is not to be assumed customary practice and

usage need be universal. It suffices that it be fairly well
defined and in the same calling or business so that actor may
be charged with knowledge of or negligent ignorance.

So measured, the case the plaintiff presented…was enough to send it

to the jury and to sustain the verdict reached.

The trial judge placed the evidence of custom and usage…”the mere
fact that another person or landlord may have used a better or safer
practice does not establish a standard” and that it was for the jurors
“to deteremine whether or not the evidence in this case does establish
a general custom.

Holding: The court reversed the dismissal but order a new trial
because the trial judge had erroneously admitted certain evidence that
had hurt the defense. (this is holding is wrong)

Notes and questions:

• Even if prevailing custom does not set the standard of care,

adherence to, and deviation from, custom may be important in
deciding whether the actor has behaved reasonably.
• A defendant who can prove that it adhered to a prevailing
custom may eliminate what might otherwise be a jury question.
o In a classic article Morris, Custom, and Negligence the
author suggested that proof alerts the trial court to three
main points.
 (1) First, if the industry adheres to a single way of
doing something, the court may be wary of plaintiff’s
assertion that there are safer way to do that thing-
and may insist that plaintiff clearly demonstrate the
feasibility of the assereted alternative
 (2) Second, even if the plaintiff can show a feasible
alternative, the fact that it may not have been in use
anywhere may suggest that it was not unreasonable
for the defendant to be unware of the possibility.
 Third, the existence of a custom that involves large
fixed costs may warn the court of the social impact
of a jury or court decision that determines the
custom to be unreasonable
• On the the hand, Professor Morries, pointed out a plaintiff will
find it useful to prove that the defendant fell below the industry
custom because it tends to show that others, usually
competitiors, found it feasible to something in a safter maner
than did the defendant.

The Role of statutes

Martin v. Herzog

Facts: The action is one to recover damages for injuries resulting in

death. (P) and her husband, while driving toward Tarrytown in a buggy
on the night of August 21, were struck by the (D) automobile coming in
the opposite direction.

Negligence is charged against the defendant, the driver of the car, in

that he did not keep to the right of the center of the highway.
Negligence is charged against the plaintiff’s intestate the driver of the
wagon in that he was traveling without lights.
The case against the (D) must stand, if at all, upon the divergence of
his course from the center of the highway.

Issue: whether the charge to the hury was erroneous and misleading
because the case was tried on the assumption that the hour had
arrived when driving light supposed to be turned on?

Rule: The unexcused omission of the statutory signals is more than

some evidence of negligence. It negligence in itself.

By the very terms of the hypothesis, to omit, willfully or heedlessly, the

safeguards prescribed by law for the benefit of another that be may be
preserved in life or limb, is to fall short of the standard of diligence to
which those who life in organized society are under a duty to conform.
Reasoning: In the case at hand, we have an instance of the admitted
violation of a statute intended for the protection of travelers on the
highway , of whom the defendant at the time was one. Yet the jurors
were instructed in effect that they were at liberty in their discretion to
treat the omission of lights either as innocent or as culpable.

Jurors have no dispensing power by which they may relax the duty that
one traveler on the highway owes under the statue to another. It is
error to tell them that they have.

Holding: A statute designed for the protection of human life is not to

be brushed aside as a form of words, its commands reduced to the
level of cautions, and the duty to obey attenuated into an option to

Maldonado – If a driver violates a safety statute whose purpose is to

protect life and without an excuse violation is negligence per se.

§ 286 Second Restatement

The court may adopt as the standard of conduct of a reasonable man

the requirements of a legislative enactment or administrative
regulation whose purpose is found to be exclusively or in part
(a) to protect a class of persons which includes the one whose
interest is invaded
(b)to protect the particular interest which is being invaded
(c) to protect that interest against the kind of harm which has
(d)to protect that interest against the particular hazard from which
harm results

Tedla v. Ellman

Facts: Two junk collectors were walking eastward along sunrise

highway. There were no sidewalks and they could not use the grass
center strip because they were transporting junk in baby carriages that
would have gotten mired on the soft ground.

There was a statute in place that provided: pedestrans walking or

remaining on the paved portion, or traveled part of a roadway shall be
subject to, and comply with, the rules governing vehicles…

It was Sunday night and very heavy traffic when the two (P) were hit
by the (D) car.
Issue: Whether there was contributory negligence

Rule: Failure to observe the standard imposed by statute is

negligence as matter of law. On the other hand, where a statutory
general rule of conduct fixes no definite standard of care which would
under all circumstances tend to protect life, limb, or property, but
merely codifies or supplements a common-law rule which has always
been subject to limitations and exceptions; or where the statutory rule
of conduct regulates conflicting rights and obligations in a manner
calculated to promote public convenice and safety, then the statute, in
the absence of clear language to the contrary should not be construed
as intended to wipe out the limitations and exceptions which judicial
decisions have attached to the common-law duty.

Reasoning: We may assume reasonably that the legislature directed

pedestrians to keep to the left of the center of the road because that
would them to face traffic approaching in that land and would enable
them to care for their own safety better than if traffic approached them
from the rear.

Holding: We cannot assume reasonably that the legislature intended

that a statute enacted for the preservation of the life and limb of
pedestrians must be observed when observance would subject to more
imminent danger.

Class 7 – 8 – Proof of negligence

Proof of negligence

• Problems of proof occur at virtually every stage of the negligence

• In this section, we focus on the plaintiff’s burden of proving that
defendant’s conduct fell below the standard of reasonable care.
• When documentary and photographic proof are used, accuracy
and creditability are less readily challenged.

Negri v. Stop and Shop, Inc.

Facts: The injured (P) while shopping in defendant’s store, fell

backward, did not come into contact with the shelves, but hit her head
directly on the floor where “a lot of broken jars” of baby food lay. That
a witness in the immediate vicinity of the accident did not hear any
jars falling from the shelves or otherwise breaking during the 15 or 20
minutes prior to the accident; and that the aisle had not been cleaned
or inspected for at least 50 minutes prior to the accident—indeed,
some evidence was adduced that it was at least two hours.

Issue: Whether (P) made a satisfactory primia facie case of negligence

against the (D).

Holding/Rule: Plaintiff’s having made out a prima facie case, it was

error to dismiss the complaint. If the jury verdict be deemed by the
Appellate Division to be against the weight of the evidence, that court’
power is limited to ordering a new trial.

The record contains some evidence tending to show that defendant

had constructive notice of a dangerous condition which allegedly
caused injuries to its customers.

Reasoning: It cannot be said, as a matter of law, that the

circumstantial evidence was insufficient to permit the jury to draw
necessary inference that a slippery condition was created by jars of
baby food which had fallen and broken a sufficient length of time prior
to the accident to permit defendant’s employees to discover and
remedy the condition.

Gordon v. American Natural History

Facts: (P) was injured when he fell on defendant’s front steps. (P)
testified that as he descended the upper level of steps he slipped on
the third step and that while he was in midair he observed a piece of
white, waxy paper next to his left foot. (P) alleges that his paper came
from the concession stand that defendant had contracted to have
present and which was located on the plaza separating the two tiers of
steps and that (D) was negligent insofar as it employees failed to
discover and remove the paper before he fell on it.
Issue: The issue was whether plaintiffs had presented sufficient
evidence on the issue of causation insoafar as both plaintiffs failed to
specify which step they had fallen on and what condition –wear,
wetness or litter had caused them to slip.

Rule: To constitute constructive notice, a defect must be visible and

apparent and it must exist for a sufficient length of time prior to the
accident to permit defendant’s employees to discover and remedy it.

Analysis: The record contains no evidence that anyone, including the

plaintiff, observed the piece of white paper prior to the accident. Nor
did he describe the paper as being dirty or worn, which would have
provided some indication that it had been present for some period of
Reasoning: One the evidence presented, the piece of paper that
caused plaintiff’s fall could have been deposited there only minutes or
seconds before the accident and any other conclusion would be pure

Neither a general awareness that litter or some other dangerous

condition may be present…nor the fact that plaintiff observed other
papers on another portion of the steps approximately 10 minutes
before his fall is legally sufficient to charge defendant with constructive
notice of the paper he fell on.

Holding: The defect in plaintiff’s case here, however, is not an

inability to prove the causation element of his fall but the lack of
evidence establishing constructive notice of the particular condition
that caused his fall.

Notes and questions:

In a negligence action, evidence of similar accident or occurrences, or

the absence thereof, may be relevant circumstantially to determine
whether a defective or dangerous condition, notice thereof, or
causation existed on the occasion in question
(1)Initially, however, the court must determine whether the
evidence code that requires the judge to “determine the
relevance of the evidence on the basis of whether there is a
substantial similarity in the operative circumstances between the
proffer and the case at bar and whether the evidence is
probative on a material issue in the case.
(2)Second, even if the evidence is relvevant, the court “must then
consider whether the probative value of such evidence is
substantially outwieghted by the countervailing considerations…
that is, the danger of unfair prejudice, confusion of the issue, or
undue delay.

Randall v. K-mar Corp.

Facts: The (P) slipped on loose birdseed in aisle in defendant’s store.

After being unable to establish constructive notice, (P) sought to
invoke the “business practice” rule.
Reasoning: Although the plaintiff failed to establish actual or
constructive knowledge of the dangerous condition, the court observed
that the case involved a “self-dangerous method” of displaying…fruits
and vegetables whereby produce was stored in open bins and was
handled by both customers and employees.
The Vermont court had concluded that under these circumstances the
merchant was obligated to anticipate dangerous conditions.

Rule: The self-service method (under the business practice rule)…

carried with it a corresponding duty of care by the store to use
reasonable measures to discover and remove from the floor debris
which may have been dropped or knocked to the floor by persons at
the counter. Debris on the floor is to be anticipated in a self-service
operation. The fact can reasonably be concluded that such hazard to
business invitees constituted a risk of harm within the reasonable
foresight of the defendant and that it should have taken reasonable
steps to obviate the danger.
• The business practice exception was created to address
the hazard associated with customers who handpick
produce from open bins.

Analysis: The court of appeals in Randall concluded that a merchat

that uses such a self-service method of sale must bear the burden of
showing what steps were taken to avoid the foreseeable risk of harm.

Reasoning: It is insufficient for Randall to charterize Kmart’s

merchandising method generally as “self-service,” without explaining
how Kmart’s merchandising of birdseed posed a hazard.

Byrne v. Boadle

Facts: A witness stated that a barrel of flour fell from a window above
in (D) house and shop, and knocked (P) down. (P) was carried to
adjoining shop. Witiness also said “I did not see the barrel until struck
the plaintiff. It was not swinging when it struck the plaintiff. If struck
him on the shoulder and knocked him towards the shop.

The (P) said: “on approaching Scotland place and defendant’s shop, I
lost all recollection. I felt no blow. I saw nothing to warn me of danger. I
was taken home in a cab. I was helpless for a fortnight.

Issue: Whether there was misdirection of the learned assessor in

ruling that there was no evidence of negligence on the part of the

Rule: It is the duty of person who keep barrels in a warehouse to take

care that they do not roll out, and I think that such a case would,
beyond all doubt, afford prima facie evidence of negligence.

Reasoning: So in the building or repairing of a house, or putting pots

on chimneys, if a person passing along the road is injured by
something falling upon him, I think the accident alone would be primia
facie evidence of negligence.

The present case upon the evidence comes to this, a man is passing in
front of the premises of a dealer in flour, and there falls down upon him
a barrel of flour. I think it apparent that the barrel was in the custody
of the defendant who occupied the premises, and who it responsible
for the acts of his servants who had control of it; and in my opinion the
fact of its falling is primia face evidence of negligence, and the plaintiff
who was injured by it is not bound to show that it could not fall without
negligence, but if there are any facts inconsistent with negligence it is
for the defendant to prove them.

Res Ipsa Loquitur: Latin: the thing speaks for itself.

Generally, in tort, the mere fact of an accident is not proof of

negligence. But in some cases, negligence is presumed on the
defendant since the object causing injury was in or under his or her
control. This is the res ipsa loquitur doctrine.

Res ipsa loquitur is a rebuttable presumption rebutted by showing

that the event was an inevitable accident and had nothing to do with
the defendant’s responsibility of control or supervision.Examples of res
ipsa loquitur, not all of which can be assumed to apply today or in all
jurisdictions, but which illustrate the doctrine:

• Getting hit by a rock which flies off a passing dump truck;

• A ship in motion collides with an anchored ship;
• Damages occasioned by the collision of two trains of a same railway;
• Hit or injured in an attack by a known-to-be vicious domestic dog;
• Hit from cargo falling from a crane; or
• Hit by bricks falling from a private bridge.
These events imputes negligence (res ipsa loquitur) and can only be
defeated if the defendant can show that the event was a total and
inevitable accident.Judicial consideration of the doctrine has, and
continues to this day to be, varied.

McDouglad v. Perry

Facts: (P) was driving behind a tractor-trailer being driven (D). As the
tractor-trailer went over some railed tracks the 130-pound spare tire
came out of its cradle underneath the trailer and feel to the ground.
The trailer’s rear tires then ran over the spare, causing the spare to
bounce into the air and crash into the windshield of (P) jeep.

The spare tire was housed in angeled cradle underneath the trailer. (D)
testified that he believed the chain to be the orginial chain that came
with the trailer in 1969. (D) testified that he performed a pre-trip
inspection of the trailer of the accident. This included an inspection of
the chain, although (D) admitted he did not check every link in the

The judge instructed the jury on the doctrine of res ipsa loquitur. The
jru subsquenly returned a verdict in McDougald’s favor.

Issue: Whether the standard of Res Ipsa Loquitur should be applied in

this case?

Rule: Res ipsa loquitur…provides an injured plaintiff with a common-

sense inference of negligence where direct proof of negligence is
wanting, provided certain elements consistent with negligent behavior
are present. Essentially the injured plaintiff must establish that the
instrumentality causing his or her injury was under the exclusive
control of the defendant, and that the accident is one that would not,
in the ordinary course of events, have occurred without negligence on
the part of the one in control.

Analysis: (1) The first requirment for the application of the rule…is a
basis of past experince which reasonably permits the conclusion that
such events do no ordinarily occur unless someone has been negligent.
• There are many types of accidents which commonly occur
without the fault of anyone.
o The fact that a tire blows out, or that a man falls
down stairs is not, in the absence of anything more,
enough to permit the conclusion that there was
negligence in inspecting the tire, or in the
construction of the stairs, because it is common
human experience that such events all too frequently
occur without such negligence.
• On the other hand there are many events such as those of
objects falling from the (D) premises, that fall of an
eleveator, the escape of gas or water from mains or of
electicity from wires or applicnaces, the derailment of
trains or the explosion of boilers, where the conclusion is at
least permissible that such things do not usually happen
unless someone has been negligent. To such events res
ipsa may apply.
Reasoning: The court concluded that the spare tire escaping from the
cradile underneath the truck, resulting in the tire ultimately becoming
airborne and crashing into McDougalds’s vehicle, is the type of
accident which, on the basis of common experience and as a matter of
general knowledge, would not occur but for the failure to exercise
reasonable care by the person who had control of the spare tire.

Rather commn sense dictates an inference that both a spare tire

carried on a truck and a wheel on a truc’s axle will stay with the truck
unless there is a failure of reasonable care by the person or entity in
control of the truck.

The plaintiff is not required to elimate with certainity all other possible
causes or inference.

Holding: The district court’s decision was revered and the case
remanded for consideration of remaining issues.

Notes and questions:

• Note 4 – inference view

o A fact situation may arise that is so strong that the jury is
instructed that it must find negligence in the absence of
persuasive exculpation.
 For example, in New York, which purports to follow
the inference view, an airplane passenger was
injured when the plane went off the runway while
landing in Kennedy Airport.
 This showing was “so convincing that the inference
of negligence arising therefrom is inescapable if not
rebutted by other evidence.”
o In some states if res ispsa applies it is treated as a
“presumption affecting the burden of producing evidence.”
This means that if the defendant offeres no plausible
rebutting evidence the (P) is entitled to judgment as a
matter of law on liability
• Note 5 –
o Defendant can rebut Res Ispa …example in the doctor case
MD1, MD2, and MD3
• Note 9 – Automobile cases
o Will defendant to bring forth evidence to rebut

Ybarra v. Spangard
Facts: (P) consulted (D) Dr. Tilley, who diagnosed his ailment as
appendicitis, and made arrangements for an appendectomy to be
performed by defendant Dr. Spangard at a hospital owned and
managed by defendant Dr. Swift. Several doctors and nurses attended
him…according to (P)’s testimony, they laid him on his back against
two hard objects at the top of his shoulders, about an inch below his
neck. Dr. Reser then administered the anesthetic and plaintiff lost

(P) testified that prior to the operation he had never had nay pain in, or
injury to, his right arm or shoulder, but that when he awakened he felt
a sharp pain about half way between the neck and the point of the
right shoulder.

(P) also consulted Dr. Wilfred, who had X-ray pictures taken which
showed an area of diminished sensation below the shoulder and
atrophy and wasting away of the muscles around the shoulder. In the
opinion of Dr. Clark, (P)’s condition was due to trama or injury by
pressure or strain, applied between his right shoulder and neck.

Issue: Whether (P)’s theory that foregoing evidence presents a proper

case for the application of the doctrine of res ispa loquitur? Whether
the inference of negligence arising therefrom makes the granting of a
nonsuit improper.

Defenants defenses:
(1)that where there are several defendants, and there is a division
of responsibility in the use of the instrumentality causing the
injury, and the injury might have resulted from the separate act
of either one of two or more persons, the rule of res ipsa loquitur
cannot be invoked against any one of them.
(2) That where there are several instrumentalities, and no showing
is made as the which caused the injury or as to the particular
defendant in control of it, the doctrine cannot apply.

Rule: The doctrine of res ipsa has three conditions:

(1)the accident must be of a kind which ordinarily does not occur in
the absence of someone’s negligence; (
(2)2) it mist be casued by an agency or instrumentality within the
exclusive control of the defendant
(3) it must not have been due to any voluntary action or
contribution on the part of the plaintiff.

Reasoning: There is, however, some uncertainty as to the extent to

which res ipsa loquitur may be invoked in cases of injury from medical
• The present case is of a type which comes within the reason and
spirit of the doctrine more fully perhaps than any other.
o Viewed from this aspect, it is difficult to see how the
doctrine can with any justification, be so restricted in its
statement as to become inapplicable to a patient who
submits himself to the care and custody and nurses, is
rendered unconscious, and receives some injury from
instrumentalities used in his treatment.
o The condition that the injury must have been due to the
(P)’s voluntary action is of course fully satisfied under the
evidence produced herein; and the same is true of the
condition that the accident must be one which ordinarily
does not occur unless someone was negligent.
• We do not believe that either the number or relationship of the
(D)s alone determines whether the doctrine of res ipsa loquitur
applies . Every defendant in whose custody the (P) was placed
for any period was bound to exerise ordinary care to se that no
unnecessary harm came to him and each would be liable for
failure in this regard.
• The other aspect of the case which (D)s so strongly emphasize is
that (P) has not indentified the instrumentality any more than he
as the particular guilty (D). Here, again there is misconception
which, if carried to the extreme for which defendants contend,
would unreasonably limit the application of the res ipsa loquitur

Possible V.L or Respondeat superior claims: “it should be noted

that while the assisting physicians and nurses may be employed by the
hospital, or engaged by the patient, they normally become the
temporary servants or agents of the surgeon in charge while the
operation is in progress, and liability may be imposed upon him for
their negligent acts under the docrine of respndeat superior.

Holding: Doctrine of res ispa loquitur is properly applicable in this

case. We merely hold that where a (P) receives unusual injuries while
unconscious and in the course of medical treatment, all those (D) who
had any control over the body or the instrumentalities which might
have caused the injuries may properly be called upon to meet the
inference of negligence by giving an explanation of their conduct.

Class 9 –

Medical Malpractice
The special case of medical malpractice

o The conduct of a defendant in a negligence suit is usually

measured against conduct of a hypothetical reasonably prudent
person acting under the same or similar circumstances.
o In medical malpractice cases, however, courts have required
that the specialized knowledge and skill of the defendant must
be taken into account.
o Although the law had thus imposed a higher standard of care on
doctors, it has tempered the impact of that rule by permitting
the profession, as a group, to set its own legal standards of
reasonable conduct.
o In a malpractice case…the question of whether the
defendant acted in conformity with the common
practice within his profession is at the heart of the
o Plaintiff
o As part of his prima facie case a plaintiff must affirmatively
prove the relevant recognized standard of medical care
exercised by the other physicians and that the defendant
depart from that standard when treating the plaintiff.
o In almost all cases the plaintiff must present expert
witnesses since the technical complexity of the facts and
issues usually prevents the jury itself from determining
both the appropriate standard of care and whether the
defendant’s conduct conformed to that standard.

Sheeley v. Memorial Hospital

Facts: (P) gave birth, in 1987, Dr. Ryder, a second-year family

practice resident, performed an episiotomy…(P) developed
complications at the site of this surgery and sued Dr. Ryder and the

At the trial on the malpractice action, (P) sought to introduce the

expert medial testimony of Dr. Leslie, a board certified (OB/GYN). Dr.
Leslie planned to testify about Dr. Ryer’s alleged malpractice and the
applicable standard of care as it relates to the performance of an

The (D) objected and filed a motion in limine to exclude the testimony,
arguing that Dr. Leslie, as OB?GYN, was not qualified under….to testify
against a family practice resident who was performing obstetric and
gynecological care.
The expert witness had a wealth of experience….

The trial judge followed the decision in Soares v. Vestal…which

requires a testifying expert to be the same medical field as the
defendant physican.

Issue: Whether the trial justice erred in excluding the testimony of

(P)’s expert witness, which exclusion resulted in the entry of the
directed verdict?

Rule: Only those persons who by knowledge, skill, experience, training

or education qualify as experts in the field of the alleged malpractice
shall be permitted to give expert testimony as to the alleged

Maldonado – “a physician us under a duty to use the degree of care

and skill that is expected of a reasonably competent practitioner in the
same class to which he or she belongs, acting in the same or similar

Reasoning: First the court distinguished Soares in Buja v.

Morningstar and limited its holding to situations in which the physican-
expert lacks knowledge, skill, experience, or education in the same
medical field as the alleged malpractice.

Relying on our previous holding in Marshall, the court reversed the trial
justice and stated that even though the proposed expert did not
practice in the same specialty as the (D), he clearly had the prerequite
“knowledge, skill, experience, traning or education…in the field of the
alleged malpratice. The Buja court held that nothing in the language
of § 9-19-41 requires the expert to pratice in the same specialty as the

The appropriate standard of care to be utilized in any given

procedure should not be compartmentalized by a physician’s
area of professional specialization or certification. On the
contrary, we believe the focus in any medical malpractice case
should be the procedure performed and the question of
whether it was executed in conformity with the recognized
standard of care, the primary concern being whether the
treatment was administered in a reasonable manner.

Holding: In sum, the traditional locality rules no longer fit the

present-day medical malpractice case. Dr. Leslie qualifies as an expert
Pg. 117 – note 6

o Doctors for hire and potential bias.

States v. Lourdes Hospital

Special note: Res ipsa loquitur was available in “a narrow category of

factually simple medical malpractice cases [requiring] no expert to
enable the jury reasonably to conclude that the accident would not
happen without negligence….testimony can be used to educate the
jury as to the likelihood that the occurrence would take place without
negligence where a basis of common knowledge is lacking”…in finding
res ipsa loquitur.

Facts: (P) States underwent surgery at Our Lady of Lourdes Hospital

in for removal of an ovarian cyst. The cyst was successfully removed.
(P) alleges that during the operation, her anesthesiologist and his
practice group (collectively “D”) injured her right arm.

When (P) awoke, she complained of increasing pain in her right arm
and shoulder. The cause of the injury is in dispute; however, (P)
alleges negligence in the positioning of her arm during surgery.

Rule: It….may be supplied by evidence of the parties; and expert

testimony that such an event usually does not occur without
negligence may afford a sufficient basis for the inference. Such
testimony may be esstential to the plaintiff’s case where, as for
example in some actions for medical malpractice, there is no fund of
common knowledge which may permit laymen reasonably to draw the

(expert testimony can be used to show res ipsa loquitur)

Reasoning: Notwithstanding the availability of expert testimony to aid

a jury in determining whether an event would normally occur in the
absence of negligence, expert opinion of course does not negate the
jury’s ultimate responsibility as fact to draw that necessary conclusion.
The purpose of expert opinion in this context it to educate the jury,
enlarging its understanding of the fact the issues it must decide.
However the jury remains free to determine whether its newly-
enlarged understanding supports the conclusion it is asked to accept.

As advantageous as the res ipsa loquitur inference is for a plaintiff

unable to adduce direct evidence of negligence, application of the
doctrine does not relieve a (P) of the burden of proof.
Holding: We conclude that expert testimony may be properly used to
help the jury “bridge the gap” between its own common knowledge,
which does not encompass the specialized knowledge and experience
necessary to reach a conclusion that the occurrence would not
normally take place in the absnce of negligence, and the common
knowledge of phsicians, which…

Matthies v. Mastromonaco

Facts: (P) 81-year-old fell in her apartment and broke her right hip.
When she was discovered two days later she was transported to
emergency care. (D) rthopedic surgeon prescribed bed rest rather than

The trial court refused to permit an informed consent claim to go to

the jury because (1) the doctrine did not apply where the
recommendation was noninvasive and (2) the claim was subsumed
within the malpractice claim.

The (D) had several reasons for not wanting to move forward with
surgery and instead opted that the (P) should have bed rest. (P)’s
expert, Dr. Sicherman, a board-certified orthopedic surgeon, testified
that under the circumstances, bed rest was an inappropriate
treatment…unless the (P) does not expect to walk again.

(D) Doctor made the call not to perform the surgery without consulting
the (P) patient.

Issue: Whether the doctrine of informed consent requires a physician

to obtain the patient’s consent before implementing a nonsurgical
course of treatment?

Rule: A physician could be obligated, depending on the circumstances

to discuss a variety of treatment alternatives such as chemotherapy,
radiation, or surgery with a patient diagnosed with cancer.
o Distinguishing the two situations are the limitations of the
reasonable patient standard which need not unduly burden the
physician patient relationship.
o The standard obligates the physician to disclose only that
information material to a reasonable patient’s informed decision.
Physicians thus remain obligated to inform patients of medically
reasonable treatment alternatives and their attendant probable
risks and outcomes. Otherwise, the patient in selecting one
alternative rather than another cannot make a decision that is
For consent to be informed, the patient must know not only of
alternatives that the physician recommends, but of medically
reasonable alternatives that the physician does not recommend.

Reasoning: Phyicisans, in turn, have a duty to evaluate the relevant

information and disclose all courses of treatment that are medically
reasonable under the circumstances.

Court rejected (D)’s contention that informed consent applies only to

invasive procedures.

In informed consent analysis, the decisive factor is not whether a

treatment alternative is invasive or noninvasive, but whether the
physician adequately presets the material facts so that the patient can
make an informed decision.

To assure that the patient’s consent is informed, the physician should

describe, among other things, the material risks inherent in a
procedure or course of treatment.

Like the deviation from a standard of care, the physician’s failure to

obtain informed consent is a form of medical negligence…phsucian’s
may neither impose their values on their nor substitute their level of
risk aversion for that of their patients.

Holding: To obtain a patient’s informed consent to one of several

alternative courses of treatment, the physican should explain
medically reasonable invasive and noninvasive alternatives, including
the risks and likely outcomes of those alternatives, even when the
chosen course is noninvasive.

Note 4 pg 128

o Physicians Insurance co.

o The court held that an earlier consent may be withdrawn
while there is still time to adopt an alternative course of
o Court decilined to view the informed consent doctrine as a
solitary and blanketing event, a point on a timeline after
which such discussions are no longer needed because they
are ‘covered’ by some articulable occurrence in the past.

Note 6 p128

o A surgeon’s personal characteristics and experience are not

relevant to the issue of informed consent, although the case
might be analyzed as one for misrepresentation.


Class 10-11 –

Affirmative obligations to act


• The connection between the “negligence”…is demonstrated by

the fact that “negligence” is often referred to as “breach of
duty”—a clear indication that some duty must exist before the
(D) can be said to have committed actionable negligence.
• The third restatement reflects the trend in providing that
“ordinarily…a duty to exercise reasonable care exists with regard
to causing physical harm but recognizes that for reasons of
“principle or policy” courts may determine that an exception
should be created for a given class of cases.
• Rule:
o If the nature of a thing is such that it is reasonably certain
to place life and limb in peril when negligently made, it is
then a thing of danger. Its nature gives warning of the
consequences to be expected. If to the elements of danger
is added knowledge that the thing will be used by persons
other than the purchaser, and used without new tests,
then, irrespective of contract, the manufacturer of this
thing of danger is under a duty to make it carefully…

Affirmative obligations to act

• If an individual is in a situation of danger, should the law impose

a duty on others affirmatively to assist that person?

Harper v. Herman

Facts: Harper (P) was one of four guests on Herman’s (D) boat. Harper
and Herman did not know each other prior to the outing and Harper
had been invited by another guest. Herman took the group to a
popular recreation spot with which he was familiar. (P) asked if (D)
was “going in”. (D) said yes and then (P) without warning dove into two
or three feet of water unannounced. (P) severed his spinal cord
rendering him a quadriplegic. (P) then brought suit, alleging that (D)
owed him a duty of care to warn him that the water was too shallow for

P sued D and the trial court granted summary judgment for D. P

appealed and the judgment was reversed. D appealed.

Issue: Whether a boat owner who is a social host owes a duty of care
to warn a guest on the boat that the water is too shallow for diving.

(1)An affirmative duty to act only arises when a special relationship
exists between the parties. (The fact that that an actor realizes
or should realize that action on his part is necessary for
another’s aid or protection does not of itself impose upon him a
duty to take such action…unless a special relationship exists…
between the actor and the other which gives the other the right
to protection.)
(2)Generally, a special relationship giving rise to a duty to warn is
only found on the part of common carries, innkeepers,
possessors of land who hold it open to the public and persons
who have custody of another person under circumstances in
which that person is deprived of normal opportunities of self-
(3)Actual knowledge of a dangerous condition tends to impose a
special duty to do something about that condition.
a. Superior knowledge of a dangerous condition by itself, in
the absence of a duty to provide protection. , is insufficient
to establish liability in negligence.
(4)There are many dangers such as those of fire and water…which
under ordinary conditions may reasonably be expected to be
fully understood and appreciated by any child…

Reasoning: Special relationship could be found to exist only if (D) had

custody of (P) under circumstances in which (P) was deprived of
normal opportunities to protect himself.

The record before this court does not establish that (P)….

Holding: (P) had no reasonable expectation to look to (D) for

protection, and we hold that (D) had no duty to warn (P) that the water
was shallow.

Notes and questions:

Note 2

• Maldonado v. Southern Pacific

o (P) claimed that as he was attempting to board one of (D)
freight trains, it jerked or bumped and he fell-off and under
the wheels, suffering a severed arm…(P) alleged that (D)
knew about his plight but did nothing to help him, (P) sued
for aggravation of his injuries.
o Rule:
 Section 322 of the second restatement – if the actor
knows or has reason innocent to know that by his
conduct, whether tortuous or, he has caused such
bodily harm to another as to make him helpless and
in danger of further harm, the actor is under a duty
to exercise reasonable care to prevent such further
• Tresemer v. Barke
o (P) was injured by a device placed in her body by a doctor.
Doctor later learned that the device was harmful
o Rule
 Section 321 of second restatement – one who has
done an act and subsequently realizes or should
realize that it has created an unreasonable risk of
causing physical harm to another is under a duty to
exercise due care to prevent the risk from occurring
even though at the time the actor had no reason to
believe that his act would create such a risk.
Note 3

• Galindo v. Town of Clarkstown

o (D), a property owner, realized that a recent storm had
loosened the roots of giant tree that, although its roots
were on a neighbor’s property, threatened to fall.
o Rule:
 A person who lacks ownership or control of property
cannot fairly be held accountable for injuries
resulting from a hazard on the property.

Farwell v. Keaton

Facts: Farwell and Siegrist (D) consumed beer at a trailer rental lot
while waiting for a friend to finish work. They unsuccessfully attempted
to engage in conversation with two females and followed the girls to a
drive-in restaurant. They were chased back to the lot by six boys
including Keaton (D2) after the girls complained to some friends.
Siegrist escaped but Farwell was severely beaten.

(D) found Farwell, applied ice to his head, and drove around with him
in Farwell’s car for about two hours. Farwell fell asleep in the back of
the car and (D) left the car in Farwell’s grandparents’ driveway at
midnight. (D) left after unsuccessfully attempting to rouse Farwell.
Farwell’s grandparents found him and took him to the hospital where
he died three days later.

Farwell’s father (P) sued (D) for wrongful death and the jury awarded P
$15,000. The Court of Appeals reversed, holding that D1 had not
assumed the duty of obtaining aid for Farwell, and neither knew nor
should have known of Farwell’s need for medical treatment. P

Issue: Whether (D) failed to exercise reasonable care when he came

to aid of (P) and thus had a legal duty to avoid any affirmative acts
which may make a situation worse?

Rule: (there was a pre-existing relationship) If the (D) does

attempt to aid him, and takes charge and control of the situation, he is
regarded as entering voluntarily into a relation which is attended with
responsibility. Such a (D) will then be liable for a failure to use
reasonable care for the protection of the (P) interest. Where
performance clearly has begun, there is no doubt that there is duty of

Social venture
• Implicit in such a common undertaking is the understanding that
one will render assistance to the other when he is in peril if can
do so without endangering himself.
o Court will find a duty where, in general, reasonable men
would recognize it and agree that it exists.

Analysis: The jury must determine, after considering all the evidence,
whether the (D) attempted to aid the victim.

Reasoning: There was ample evidence to show that (D) breach a legal
duty. (D) knew that (P) had been a fight, and he attempted to relieve
(P) of pain, and (P) had crawled into the back seat to lay down.

Holding: Because (D) knew or should have known of the peril (P) was
in and could render assistance without endangering himself he had an
affirmative duty to come to (P)’s aid.

• The close relationship between (D) and the decedent is said to
establish a legal duty upon (D) to obtain assistance for the
decedent. No authority is cited for this proposition other than
public policy…

Notes and Questions:

Note 1
• The majority recognizes an obligation of due care on two
independent grounds
o (1) that (D) voluntarily came to the assistance of (P)
o (2) that (D) in any event had affirmative duty to aid (P) on
the basis of their pre-existing relationship.

Note 4
• 3rd restatement requires an actor to exercise reasonable care in
discontinuing aid for someone who reasonably appears to be in
imminent peril.
• Section 324 of the second restatement provides that one who,
being under no duty to do so , takes charge of another who is
helpless is subject to liability caused by
o (a) the failure of the actor to exercise reasonable care to
secure the safety of the other while within the actor’s
charge, or
o (b) the actor’s discounting his aid or protection, if by so
doing he leaves the other in a worse position than when
the actor took charge of him.”

Randi W. v. Muroc Joint Unified School District

Facts: The (P), Randi, accused four schools districts writing letters of
recommendation for a teacher they knew to have a history of sexual
misdeeds with students. (P) alleged that she was sexually assaulted by
Gadams, an assistant principal who had received a job at her school.
The previous school districts knowingly concealed Gadams’ past
allegations and resignations for sexual misconduct with students.

Issue: Whether courts may impose tort liability on employers who fail
to use reasonable care in recommending former employees for
employment without disclosing material information on their fitness.


311 restatement 2nd of torts

(1)one who negligently gives false information to another is subject
to liability for physical harm caused by action taken by the other
in reasonable reliance upon such information, where such harm
a. to the other, or
b. to such third person as the actor should reasonably expect
to be put in peril by the action taken
(2)such negligence may consist of failure to exercise reasonable
a. in ascertaining the accuracy of the information, or
b. in the manner in which it is communicated.

The general rule is that all persons have a duty to use ordinary care to
prevent others from being injured as the result of their conduct.
• Factors used to determine a departure from the general rule is
o (1) foreseeability of harm to the (p)
o (2) the degree of certainty that (P) suffered injury
o (3) the closeness of the connection between the (D)’s
o (4) the policy of preventing future harm
o (5) the extent of the burden to the (D) and consequences
to the community of imposing a duty t exercise care with
resulting liability for breach,
o (6) the availability
o (7) cost,
o (8) prevalence of insurance for the risk involved.

Reasoning: (D) made positive assertions in this case.

Holding: the writer of a letter of recommendation owes to a third

persons a duty not to misrepresent the facts in describing the
qualifications and character of a former employee, if making these
misrepresentations would present a substantial, foreseeable risk of
physical injury to the 3rd persons.

Notes and Questions:

Tarasoff v. Regents of the University of California

Facts: On October 27, 1969, Prosenjit Poddar killed Tatiana Tarasoff.

(P)s, Tatiana's parents, allege that two months earlier Poddar confided
his intention to kill Tatiana to Dr. Lawrence Moore, a psychologist
employed by the Cowell Memorial Hospital at the (D) University of
California at Berkeley. They allege that on Moore's request, the
campus police briefly detained Poddar, but released him when he
appeared rational. They further claim that Dr. Harvey Powelson,
Moore's superior, then directed that no further action be taken to
detain Poddar. No one warned plaintiffs of Tatiana's peril.

(D)…contend that in circumstances of the present case they owed no

duty of care to Tatiana or her parents and that, in the absence of such
duty, they were free to act in careless disregard of Tatiana’s life and

Issue: Whether when (D) therapists failure to warn (P)s--Tatiana's

parents--of the danger to Tatiana was a breach of duty to safeguard
their Tatiana and the public ?


General rule, one person owes no duty to control the conduct of

another, nor to warn those endangered by such conduct.
• Exception
o In cases in which the (D) stands in some special
relationship to either the person whose conduct needs to
be controlled or in a relationship to the foreseeable victim
of that conduct
 315 of the restatement second of torts, a duty of
care may arise from either
• (a) a special relation…between the actor and
the third person which imposes a duty upon
the acotr to control the third person’s conduct,
• (b) a special relation…between the actor and
the other which gives to the other a right of

Reasoning: The court concluded that the public policy favoring

protection of the confidential character of patient psychotherapist
communications must yield to the extent to which disclosure is
essential to avert danger to others. The protective privilege ends
where the public peril begins.

If the exercise of reasonable care to protect the threatened victim

requires the therapist to warn the endangered party or those who can
reasonably be expected to notify him, we see no sufficient societal
interest that would protect and justify concealment. …

Notes and questions:

Note 2.
• Reisner v. regents of the university of California
o A boy had HIV and doctor never disclosed information until
he was 15 and was intimate with the (P). The boy died and
the (P) learned that she was now HIV postive.
o The court, relying largely on Tarasoff, held the (D) doctor
owed a duty to the (P) despute the lack of physician-
patient relationship.

Uhr v. East Greenbush Central School District


Mr. and Mrs. Uhr (P) were the parents of a child who developed
scoliosis. Under State law (Education statute law) all children from the
ages of 8-16 were required to be tested for scoliosis at least once each
school year. Uhr sued the East Greenbush Central School District for
failing to examine their child. (P) assert, in essence, that the distict was
negligent in failing to examine the minor (P) for sciosis during the
1993-94 school year, as a result of which her ailment was allowed to
progress undetected, to her detriment.

The trial court granted D’s motion for summary judgment and held that
the law in question did not create a private right of action, and that Ps
had otherwise failed to state a claim for negligence. The appellate
division affirmed and P appealed.

Issue: Does a statutory duty per se grant a remedy to a private



Uhr factors: a statue can create a duty of care if:

1) P is one of the class for whose particular benefit the statue was
2) Recognition of a private cause of action is would promote the
legislative purpose
3) A private right of action would further the legislative scheme
(Uhr v. Greenbush Central School Dist: P got scoliosis and D
didn’t test for it, in violation of statute; prong 1 & 2 satisfied, but
not 3 b/c statute insulated schools from liability)
Holding and Rule: No. A statutory duty does not per se grant a
remedy to a private individual.

The court acknowledged that P was a member of the class for whose
benefit the statute was enacted, and that recognition of a private right
to sue would promote the legislative purpose. However, the final
Sheehy prong analysis demonstrated that a private right of action
would be inconsistent with the legislative scheme. The statute provides
for the creation of administrative remedies and regulations.
Furthermore the statute specifies that the school district shall not
suffer any liability in connection with the tests. The court rejected Ps
contention that this gave immunity for misfeasance but not

Gipson v. Kasey

Facts: (D) Kasey provided eight prescription pain pills to a co-worker,

who in turn gave them to her boyfriend, Followill. The boyfriend died in
his sleep that evening due to a combination of the prescription
medicine and alcohol in his system. (P) Gipson, Followill's mother, sued
Defendant for wrongful death. The court found (D) liable because he
owed a duty of care to Followill. Kasey could have foreseen Followill
consuming alcohol and taking the pills.

Issue: The issue presented is whether persons who are prescribed

drugs owe a duty of care, making them potentially liable for
negligence, when they improperly give their drugs to others.

Rule: Whether a duty exists is matter of law for the court to decide.

The existence of a duty of care is a distinct issue from whether the

standard of care has been met in a particular case. As a legal matter,
the issue of duty involves generalizations about categories of cases.
(1)Duty is defined as an “obligation, recognized by law, which
requires the (D) to conform to a particular standard of conduct in
order to protect others against unreasonable risks of harm.
(2)Whether the (D) has met the standard of care—that is whether
has been a breach of duty—is an issue of fact that turns of the
specifics of the individual case.

General notes: Whether the (D) owes the (P) a duty of care is a
threshold issue, absent some duty, an action for negligence cannot be
maintained. Thus a conclusion that no duty exists is equivalent to a
rule that, for certain categories of cases, (D)s may not be held
accountable for damges they carelessly cause, no matter how
unreasonable their conduct.

Reasoning: This court held that foreseeability is not a factor to be

considerd by courts when making determinations about duty.

The court stated that a special relationship is not required…”A finding

of duty, however, does not necessarily depend on preexisting or direct
relationship between the parties.

As we explained in Stanley the requirement of a formalized

relationship between the parties has been quietly eroding…and, when
public policy has supported the existence of a legal obligation, courts
have imposed duties for the protection of persons with whim no
preexisting relationship existed.

Holding: We hold that Kasey did owe a duty of care based Arizon’s
statutes prohitbiting the distribution of prescription drugs to person not
covered by the prescription.

Class - 12

Policy Bases for invoking no duty

 In all the cases in this section, the (D) has played a role in
creating the risk that harmed the (P).
o Nevertheless, for specifc policy reasons thought to be
important,courts sometimes determine that no duty exists,
thereby withdrawing the possibility of the (D) being held
liable for the harm, even if negligent.

Strauss v. Belle Realty Co.

Facts: (P) a 77 year old resided in an apartment building in queens.

Con Ed provided electricity to his apartment pursuant to agreement
with him, and to the common areas of the building under a separate
agreement whi his landlord, (D) Belle Realty Company. During the
blackout the (D) feel on defective stairs in a common area.

In this action against Belle Realty and Con Edision (P) alleged
negligence against the landlord, in failing to maintain the stairs or
warn of their dangerous condition, and negligence against eh utility in
the performance of its duty to provide electricity.

Issue: The essetnail questions here is whether Con Ed owed a duty to

(P), whose injuries from a fall on a darkened staircase may have
conceivably been foreseeable, but with whom there was no contractual
relationship for lighting in the building’s common areas.

Rule: Duty in negligence cases is defined neither by foreseeability of

injury nor privity of contract…as this court has long recognized, an
obligation rooted in contract may engender a duty owed to those not in
privity for there is nothing anomalous in a rule which imposes upon A,
who has contracted with B, a duty to C and D and other according as
he knows or does not that the subject-matter of the contract is
intended for their use.

Reasoning: On public policy grounds the court dismissed the

complaint against con Edison.

But while the absence of privity does not foreclose recognition of a

duty it is still the responsibility of courts in fxing the orbut of duty to
limit the legal consequences of wrongs to a controllable degree…and
to protect against crushing exposure to liability….in fixing the bounds
of that duty, not only logic and science, but policy play an important

“ORBIT OF DUTY” pg 179

Holding: We conclude that in the case of a blackout of a metropolis of

several million residents and visitors, each in some manner necessarily
affected by a 25-hour power failure, liability for injuries in a building’s
common areas should as matter of public policy, be limited by the
contractual relationship.

Dissent: My disagreement with the majority results not from its

consideration of public policy as a factor in determining the scope of
Con Ed’s duty, but from the fact that in reaching its public policy
conclusion it has considered only one side of the equation and based
its conclusion on nothing more than assuption…

Notes and questions:

 Palks v. Servicemaster management services corp.

o (P) nurse was hurt when a wall-mounted fan in (P)’s room
o The (D) argued that its only duty was owed to the hosiptial
with which it had contracted.
A known and identifiable group—hospital employees,
patients and visitors—was to benefit and be
protected by safety maintenance protocols assumed
and acquired exclusively by ServiceMaster. It cannot
reasonably claim that it was unaware or that it was
entitled to be unaware that individuals would expect
some entity’s direct responsibility.
 Pulka v. Edelman
o (P) pedestrian was stuck by a care while it was being
driven out the (D)’s garage and across an adjacent
sidewalk by a patron of the garage.
 No such duty arose from the relationship between
the garage and the deriver because the garage has
no reasonable opportunity to control the conduct of
the driver.
• Although the garage may have taken
precautions, ti could be said that had “a
reasonable opportunity to stop drivers from
disregarding their own sense of danger to
pedestrians.” To build a duty on this
relationship would place “unreasonable burden
on the garage.”

Kelly v. Gwinnell

Facts: Here the host served liquor to the guest beyond the point at
which the guest was visibly intoxicated. (D) Gwinnell consumed two or
three drinks while at Zak’s home ( 2 or 3 scotches on the rock. Zak
watched (D) drive from Zak’s home. Gwinnell, on his way home, was
involved in collision with (P) in which (P) was seriously injured. (P) sued
Gwinnell for breach of duty in operating his car while intoxicated. (P)
also sued Zak for negligence in continuing to serve Gwinnell drinks
after it was apparent that Gwinnell was intoxicated, knowing that
Gwinnell was going to drive home.

Issue: This case raises the issue of whether a social host who enables
and adult guest at his home to become drunk is liable to the victim of
an automobile accident caused by the drunk driving of the guest.

Rule: A host who serves liquor to an adult social guest, knowing both
that the guest is intoxicated and will thereafter be operating a motor
vehicle, is liable for injuries inflicted on a third party as a result fo the
negligent operation of a motor vhicle by the adult gust when such
negligence is caused by the intoxication.
 We impose this duty on the host to the third to the third party
because we believe that the policy considerations served by its
imposition far outweigh those asserted in opposition.
o Where the social host directly serves the guest and
continues to do so even after the guest is visibly
intoxicated, knowing that the guest will soon be driving
home, the social host may be liable for the consequence of
the resulting druken driving.
Reasoning: A reasonable person in Zak’s position could foresee quite
clearly that his continued provision of alcohol to Gwinnell was making
it more and more likely that Gwinnell would not be able to operate his
car carefully. Zak could foresee that unless he stopped providing
drinks to Gwinell, Gwinnell was likely to injure someone as a result fo
the negligent operation of his car.

When the court determines that a duty exists and liability will be
extended, it draws judicial lines based on fairness and policy.

Policy considerations: The court said “we believe that the added
assurance of just compensation to the victims of drunken driving as
well as the added deterrent effect of the rule on such driving outweigh
the importance of those other values.

Reynolds v. Hicks

Facts: Hicks got married and there were a lot of people at the
reception including underage nephew Steven. Steven consumed
alcohol at the reception and then drove his sister’s car. He then got
into a car accident with Reynolds and Reynolds sued the Hicks claiming
that they were negligent in knowingly serving alcohol to under age
guests. Hicks moved for summary judgement on the grounds that WA
did not extend social host liability to situations where intoxicated under
age guest s harm third parties.

Issue: At issue is whether the (D) social hosts who furnished alcohol
to a minor owe a duty of care to third persons injured by the
intoxicated minor.

Rule: does not recognize a cause of action in negligence for a third

person injured by an intoxicated adult against the social host that
served the person while in an obviously intoxicated state…but does
recognize a cause of action against a commercial vendor in the same
 Rule applies only to instances where the social host directly
serves the gust and continues to so even after the gust is visibly
intoxicated knowing that the gust will soon be driving him, the
social host may be liable for the consequences of the resulting
drunken driving.

Policy considerations: The implications of social host liability are so

much more wide sweeping and unpredictable in nature than are the
implications of commercial host liability. While liability for commercial
provides affects only a narrow slice of our populations, social host
liability would touch most adults in the state on a frequent basis.
Because social hosts are generally unaccustomed to the pressure
involved in taking responsibility for the intoxication of their guests, we
cannot predict how well social hosts would repond when the scope of
their duties would be so ill defined.

Reasoning: RCW 66.44.270…make it unlawful for any person except a

parent to serve alchocl to a minor….

Because the statue allows a parent or guardian to legally give alcohol

to a minor who may then injure a third person it is apparent that the
statute was not enacted to protect third person injured by intoxicated

Socail hosts are ill-equipped to handle the responsibilities of their

guests’ alcohol consumption, unlike commercial vendors who are in
the business of serving

Notes and questions:

 Estate of Temleton v. Daffern

o The court refused to impose a duty of care on social hosts
where a minor brought his own alcohol to a party and the
(D)s observed the minor drinking. He was killed in auto
accident while driving away from the party.

Vince v. Wilson

Facts: Wilson bought her grandnephew a car. It was the car involved
in the care accident. Gardner was the salesman and at the time she
bought the car, she knew that grandnephew had no license and that he
failed several times and she informed Gardner and Ace Auto Sales
about this several times. Wilson also knew that he used drugs and
drank. Grandnephew got into accident that injured his passenger and
passenger sued Wilson, Ace and Gardner for negligently entrusting an
auto to an incompetent driver.

Issue: The issue is clearly one of negligence to be determined by the

jury under proper instruction; the relationship of the (D) to the
particular instrumentality is but one factor to be considered.

Rule: Dircranian v. foster…”liabiability….arises out of the combined

negligence of both, the negligence of one in entrusting the automobile
to an incompetent driver and of the other in its operation.

Restatement of torts § 390

 One who supplies directly or through a third person a chattel for
the use of another whom the supplier knows or has reason to
know to be likely because his youth, inexperience or otherwise to
use it in a manner involving unreasonable risk of physical harm
to himself and other whom the supplier should expect to share in
or be endangered by its use, is subject to liability for physical
harm result to them.

Reasoning: The negligent entrustment theory requires a showing

that the entrustor knew or should have known some reason why
entrusting the item to another was foolish or negligent.

The evidence indicates that Wilson knew that the operator for whom
she provided funding to purchase the vehicle had no driver’s license
and had failed the driver’s rest several times. Indeed, she
communicated this fact to (D) garder, an agent of (D) ace, prior to the
sale of the vehicle.

Notes and questions:

 Peterson v. Halsted – (d) father co-signed a financial note so that

his adult daughter could get financing for a car. She made all the
payements. She caused an accident due to her drunk driving—
which (P) alleged (D) knew about all along. The court declined to
impose a duty on a co-signer.
o Because of the large number of variables in financing
arrangement, the court thought it unwise and destructive
of flexibility of analysis to classify suppliers of money or
credit categorically as suppliers of chattels…event though
the loan or creidt may essential to the borrower in
obtaining possions of the chattell.
 Pg. 193 note 8 (GUNS)
o Valentine v. on target
 Rejecting 4-3 liability against a gun retailer to those
injured by bullets fired from guns stolen from its
store. The majority observed that “one cannot be
expected to woe a duty to the world at large to
protect it against the actions for third parties.”
o Kitchen v. K-mart
 The (P) ex-boyfriend, who had been drinking all day,
bought a gun and ammunition at (d)’retail store and
immediately sought out the (P) and shot her.
 The claim was the boyfriend was so drunk he was
unable to fill out the required forms to buy the gun
because his handwriting was not legible. The clerk
filled out the forms and had the boyfriend initial each
of yes/no answer s and sign his name at the bottom.
 Rule:
• One who supplies chattels to another is not
entitled to assume that it will be used carefully
if the supplier knows or has reason to know the
other is likely use it dangerously, as where the
other belongs to a class which is notoriously
incompetent to use the chattel safely, or lacks
the train and experience necessary for such

Class 13

Landowners and Occupiers

The duties of landowners and occupiers

 This section deals with duties owed to entrants by those who

own, or are in possession of, lad for harm arising from conditions
on the land. By contrast, different may apply when the harm is
the result of active operations of the land possessor.

Carter v. Kinney

Facts: The Kinneys (D) hosted a bible study meeting at their home.
The sessions were sponsored by the Northwest Bible Church and
participants signed up for the sessions at the church. The sessions
were hosted at various times at the church and at the homes of other
members. Carter (P) came to one of the morning sessions, slipped on a
patch of ice in the driveway, and broke his leg. Kinney had shoveled
the driveway the previous evening and was not aware that ice had
formed overnight. D did not receive any financial or other benefit from
P in connection with the bible study meeting.

(P) claims that he was an invitee; the (D) claims that he was licensee.
P sued D and the trial court granted D’s motion for summary judgment,
holding that P was a licensee and that D did not have a duty to warn P
of a dangerous condition of which D was not aware. P appealed.

Issue: Whether there the (P) was an invitee or a licensee and what is
the duty required on the part of the landowner?


All persons who enter premises with permission are licensees until the
possessor has an interest in the visit such that the visitor “has reason
to believe that the premises have been made safe to receive him.”
That invitation determines the status of the visitor and establishes the
duty of care the possessor owes the visitor. Generally, the possessor
owes a trespasser no duty of care; the possessor owes a licensee the
duty to make safe dangers of which the possessor is aware, and the
possessor owes invitees the duty to exercise reasonable care to
protect them against both known dangers that would be revealed by
 Social guest are but a subclass of licensees
 An entrant becomes an invitee when the possessor invites with
the expectation of a material benefit from the visit or extends an
invation to the public generally.

The duty of a possessor to a licensee is to make safe only dangers of

which the possessor is aware. Social guests are licensees. The court
held that it was irrelevant that D had invited P because there was no
material benefit motive and it was not extended to the public. D had
not thrown open their premises to the public.

Reasoning: The record shows that…(P) did not enter (D)’s land to
afford the (D)’s any material benefit. He is therefore not an inveitee
under the definition of “business vistor” contained in section 332 of the

They did nothing more than give permission to a limited class of

persons-chruch members.

Notes and questions:

 Note 2: pg. 198

o Stit v. Hollandi
 (P) who was not a church member, went with a friend
to attend a bible study class at (D) church. She
tripped over concerete tire stop in the parking lot
and claimed that the lighting was inadequate.
• Extended invitee status to a person who
“invited to enter or remain on land as member
of the public for a purpose which the land is
held open to the public.”
 Note 3:
o Except as stated §§334-339, a tresspssessor of land is not
liable to trespassers for physical harm caused by his failure
to exercise reasonable care
 (a) to put the land in a condition reasonably safe for
their reception
 (b) to carry on his activities so as not to endanger
o The listed exceptions create obligations to warn, for
example, where the possessor knows that persons
“constantly intrude upon a limited area” of the land and
may encounter a hidden danger, or when the possessor
fails to exercise reasonable care for the safety of a known
 Note 5 – section 342 – invitiess
o Provides so far as the condition of the premises is
concerned, an occupier is subject to liability to invitees if
the occupier:
 (a) knows or by the exercise of reasonable care
would discover the condition, and should realize that
it involves an unreasonable risk of harm to such
 (b) should expect that that they will not discover or
realize the danger, or will fail to protect themselves
against it, and
 (c) fails to exercise reasonable care to protect them
against danger
 Note 6 – open and obvious dangers
o A possessor was not liable to invitees for harm obvious
dangers “unless the possessor should anticipate the harm
despite such knowledge or obviousness”
 Note 7 – activities
o Bowers v. Ottenad
 When a licensee, whose presence is known or should
be known, is injured or damaged by some affirmative
activity conducted upon the property by the occupier
of the property the duty owed to such person is one
of reasonable care under the circumstances.
 Section 341 of the second restatement extends
liability to licensees for failure to carry on activities
with due care if, but only if, the occupier should
expect that the licensee will not discover or realize
the danger, and the licensee does not know or have
reason to know of the activities and the risk involved.
 Note 8 –
o Restatement section 339
 A possessor of land is subject to liability for physical
harm to children trespassing thereon caused by an
artificial condition upon land if
• (a) the place where the condition exists is one
upon which the possessor knows or has reason
to know that children are likely to trespass, and
• (b) the condition is one of which the possessor
knows or has reason to know and which he
realizes or should realize will involve an
unreasonable risk of death or serious bodily
harm to such children
• (c) the children because of their youth do not
discover the condition or realize the risk
involved in intermeddling with it or in coming
within the area made dangerous by it, and
• (d) the utility to the possessor of maintaing
the condition and the burden of eliminating the
danger are slight as compared with the risk to
children involved
• (e) the possessor fails to exercise fails to
exercise reasonable care to eliminate the
danger or otherwise to protect the children

Heins v. Webster County

Facts: Heins (P), visiting the hospital that his daughter worked at,
slipped and fell on some ice upon leaving. There is some argument as
to why he was there, as he argues to talk to his daughter about his
playing Santa at the hospital that year, as the hospital argues it, on a
social visit to see his daughter. He fell allegedly because of an
accumulation of ice and snow, and injured his hip.

(p) claims that Webster County was negligent (1) in failing to properly
inspect the above-described entrance prior to inviting the public to use
the entrance, (2) in failing to warn Heins of the existence of a
dangerous condition, (3) in allowing to the ice and snow to accumulate,
(4) in failing to remove the ice and snow.

Issue: Whether this court should abolish the common-law

classifications of licensee and invitee and require a duty of reasonable
care to all nontrespassers.

Rule: We impose upon owners and occupiers only the duty to exercise
reasonable care in the maintenance of their premises for the
protection of lawful visitors. Among the factors to be considered in
evaluating whether a landowner or occupier has exercised reasonable
care for the protection of lawful visitors will be
(1)the foreseeability of possibility of harm
(2)the purpose for which the entrant entered the premises
(3)the time, manner, and circumstances under which the entrant
entered the premises
(4)the use to which the premises are put or are expected to be
(5)the reasonableness of the inspection, repair, or warning
(6)the opportunity and ease of repair or correction or giving of
the warning
(7)the burden on the land occupier and/or community in terms of
inconvenience or cost in providing adequate protection.

Notes and questions

• Notes 9
o Louis v. Louis
 The court held that in landowner cases (p) need not
establish a special relationship: “we have
consistently recognized that a duty based on a
special relationship theory is separate and distinct
from a duty based on a landowner theory.
• Criminal activity – pg. 210
o A landowner’s duty is to take those measures of protection
which are within his power and capacity to take, and which
can reasonably be expected to mitigate the risk of
intruders assaulting and robbing tenants.
o The landlord is not expected to provide protection
commonly owed by a municipal police department; but as
illustrated in this case, he obligated to protect those parts
of his premises which are not usually subject to periodic
patrol and inspection by the municpal police.

Posecai v. Wal-Mart Stores, inc

Facts: (P) went shopping at Sam’s club. Around 7 pm she was going
back to her car in the parking lot and a man robbed her at gunpoint—
she was wearing $19,000 dollars worth of jewelry and he took it.
Robber never found and she never got jewelry back. A security guard
had been stationed inside the store, but there was no security guard
outside. Security guard testified that in the 9 years he had been
working there, there was no similar crime. Police testified that the area
behind the store was a high crime area. Sam’s club was not a high
crime location though. Security expert said that crime could have been
prevented if a security guard were stationed outside. In the past six
years there had been 3 crimes in this parking lot. Lady said that lack of
security guards in parking lot was negligent. Trial court said that Sam’s
club had a duty to put security guards in parking lot.

Issue: Whether Sam’s club owed a duty to protect Mrs. Posecai from
the criminal acts of third parties under the facts and circumstances of
the case.

Rule: Although business owners are not eh insurers of their patron’s

safety, they do have a duty to implement reasonable measures to
protect their patrons from criminal acts when those acts are

The foreseeability of the crime risk on the (D)’s property and the
gravity of the risk determine the existence and the extent of the (D)’s
duty. The greater the foreseesability and gravity of the harm, the
greater the duty of care that will be imposed on the business. A very
high degree of foreseeability is required to give rise to a duty to post
security guards, but a lower degree of foreseeability may support a
duty to implement lesser security measures such as using survellance
cameras, installing improved lighting or fencing, or trimming

Reasoning: A careful consideration of the previous incidents of

predatory offences on the property reveals that there was only one
other crime in Sam’s parking lot, the mugging 1992, that was
perpetrated against a Sam’s customer and that bears any similarity to
the crime that occurred in this case.

Holding: Sam’s club did not possess the requisite degree of

foreseeability for the imposition of a duty to provide security patrols in
its parking lot. Nor was the degree of foreseeability sufficient to
support a duty to implement lesser security measures.

Would have gone with the totality of circumstances test…

The totality of circumstances test takes all factors of an incident into

account when evaluating the issue of duty.

Notes and questions:

• Notes 6 – resisting the robbery and apprehending perpetrators

o Generally a shop owner does not have to comply
o The shopkeeper is never owed a duty.

Class 14

Duty requirement: emotional harm

The duty requirement: nonphysical harm

• Protection against nonphysical harms.

• The common law has distinguished situations in which the only
harm suffered was psychic or economic from the classic physical
injury and has developed limited or no-duty rules for reasons
that we will explore.
• Damages for economic and emotional are, however, rountinely
recoverable when they occur as a result of physical harm for
which the plaintiff establishes liability.

Emotional Harm

Falzone v. Busch

Facts: ∏ was in a parked car, and her husband was struck by a car. ∏
claimed that the car came so close to her that it put her in fear for her
safety. As a result, she became ill and required medical attention. Trial
court granted summary judgment for (D) holding that it was
constrained to follow the existing New Jersey rule that where there is
no physical impact upon the (P), there can be no recovery for bodily
injury or sickness resulting from negligently induced fright.

Issue: Whether the (P) may recover for bodiliy injury or sickness
resulting from fear for her safety caused by a negligent (D), where the
(P) was placed in danger by such negligence, although there no
physical impact?
Rule: Where a person is injured attempting to avoid a hazard
negligently created by another, he may recover for the phyical
consequences of fright even though the immeditate injury suffered was
slight and was not a link in the casual chain.

Holding/rule: Where negligence causes fright from a reasonable fear

of immediate personal injury, which fright is adequately demonstrated
to have resulted in substanstanial bodily injury or sickness, the injured
person may recover if such bodily injury or sickness would be regarded
as proper elements of damage had they occurred as a consequence of
direct physical injury rather than fright. Of course, where fright does
not cause substantial bodily injury or sickness, it is to be regarded as
too lacking in seriousness and too speculative to warrant the
imposition of liability.


There were 3 reasons that courts gave for not giving recovery for
physical impact unless it resulted from physical impact. The court no
longer finds these reasons tenable:

• 1) it was thought that emotional injury was not a natural and

proximate result of a negligent act
0 this is better left to medical evidence
1 the court has allowed recovery for physical ailments in which
there was minor physical impact and in cases in which
there was willfully inflicted emotional harm
2 even though the connection may be hard to find, causation is
difficult to show in many other types of cases
• 2) courts concluded that no liability exists without physical impact
0 this court does not agree
1 just because there might be fraudulent claims does not mean
that the court should deny recovery to someone who is
• 3) courts feared that allowing recovery in these cases would result in a
flood of litigation
0 there is no evidence that there is an excessive number of
actions of this type
if there was an excessive number of cases of this type, it should not be
resolved by precluding this claim but by expanding judicial machinery

“A great majority of jurisidictions now hold that where physical injury

results from wrongfully caused emotional stress, the injured person
may recover for such consequences notwithstandning the absence of
any physical impact upon him at the time of the mental shock.”
Conclusion: The (P) should be givein opportunity of submitting proof
that Mrs. Falzone suffered substantial bodily injury or sickness and that
such bodiliy injury or sickness was the proximate result of the (D)’s

Metro –North Commuter Railroad v. Buckley

Facts: Michael Buckley was exposed to insulation dust containing

asbestos while employed as a pipefitter by Metro-North Commuter
Railroad Co. Buckley feared he would develop cancer, of which periodic
medical check ups have revealed no evidence of an asbestos related
disease. Buckley filed suit under the Federal Employers' Liability Act
(FELA), which permits a railroad worker to recover for an "injury . . .
resulting from" his employer's "negligence." He sought damages for
negligently inflicted emotional distress and to cover the cost of future
check ups. The District Court dismissed Buckley's case because since
there had been no "physical impact" from his exposure, the FELA did
not permit recovery for his emotional injury. Buckley's medical
monitoring claim was not discussed. In reversing, the Court of Appeals
held that that his contact with the insulation dust was considered a
physical impact that, when present, permits a FELA plaintiff to recover
for accompanying emotional distress. Furthermore, Buckley could
recover the costs of check ups made necessary by the exposure.

Issue: Whether a railroad worker negligently exposed to a carcinogen

(asbestos) but without symptoms of any disease can recover under the
Federa Employers’ Liability Act (FELA) for negligently inflicted
emotional distress.

Rule: The common law of torts does not permit recovery for
negligently inflicted emotional distress unless the distress falls within
certain specific categories that amount to recovery-permitting

The law for example does permit recovery for emotional distress where
that distress accompanies a physical injury.

….it often permits recovery distress suffered by a close relative who

witnesses the physical injury of a negligence victim.

Sometimes permitted revoer for damages for negligent infliction of

emotional distress and, in particular, it does so where a (P) seeking
such damages satifies the common law’s “zone of danger” test.
• It defined that test by stating that the law permits “recovery for
emotional injury” by those (P)s who sustain a physical impact as
result of (D)’s negligent conduct or who are placed in immediate
risk of physical harm by that conduct.”

Reasoning: Court here focused on “physical impact”

Problems with separating valied from invalid emotional distress calims

ssues with people who are exposed to such carciognes bringing

massive amounts of law suits.

The common law permits emotional distress recovery for that category
of (P)s who suffer from a disease or exhibit physical symptom, for
example, thereby finding a special effort to evaluate emotional
symptoms warranted in that category of cases—perhaps from a desire
to make physically injured victim whole or because the parties are
likely to be in court in any event

Physical impact not extended here….

Conclusion: We conclude that the worker before us here cannot

recover unless, and until, he manifests symptoms of a disease.

Notes and questions:

• Note 5
o Potter v. Firestone
o (D)’s dumping toxic waste into a landfill near its plant site
exposed (P) to carcinogens over a prolonged period.
Although none of the (P)s suffered from any current
condition they faced an enhanced but unquantified risk of
developing cancer in the future due to the exposure.
 Rule:
• In the absence of a present physical injury or
illness, damages for fear of cancer may be
recovered only if the (P) pleads and proves
o 1) as a result of the (D)’s negligent
breach of a duty owed to the (P), the (P)
is exposed to a toxic substance that
threatens cancer
o 2) the (P)’s fear stems from a
knowledge, corroborated by reliable
medical or scientific opinion, that is
more likely than not that (P) will develop
cancer in the fture due to the toxic
• Note 6 – HIV cases
o The courts have tended to require the (P) to show that the
needle in question actally contained the virus.
• Note 7 windows
o A few courts HIV cases allow recovery for the window
between the event that creates the concern and the
results of tests showing that infection did not occur.

Gammon v. Osteopathic Hospital of Maine, Inc.

Facts: When his father died at a hospital, ∏ made arrangements for

the funeral home to make arrangements. ∏ opened a bag that was
supposedly filled with his father’s personal effects but saw a bloodied
severed leg in the bag. He suffered an immediate traumatic reaction.
He began to have nightmares and his relationship with his family took
a turn for the worse. After several months his emotional state
improved, but he still had nightmares. He never sought treatment and
he did not present medical evidence at trial.

Issue: Whether the (P) under the circumstances has established a

claim, in tort, for negligent infliction of severe emotional distress.

Rule: (must be severe emotional harm) A person’s psychic well-

being is as much entitled to legal protection as is his physical well-
being. We recognize as much and provide compensation when the
emotional distress is intentionally or recklessly inflicted, when the
emotional distress results from physical injury negligently inflicted, or
when negligently inflicted emotional distress results in physical injury.

In order to ensure that a claim for emotional distress without physical

injury is not spurious, we have previously required a showing of
physical impact, objective manifestation, underlying or accompanying
tort, or special circumstances…..the court here has relaxed that those

Reasoning: Instead, we look to the rationale supporting the exception

Courts have concluded that the exceptional vulnerability of the familiy
of recent decedents make it highly probable that emotional distress
will result from mishandling the body.

That high probability is said to provide sufficient trustworthiness to ally

the court’s fear of fraudulent claims. This rational, it seems, is but
another way of determining that the (D) reasonably should have
foreseen that mental distress would result from his negligence.
Some barriers to recovery by have been eliminated.

Portee v. Jaffee

Facts: A boy lived with his mother in an apartment complex. The boy
got trapped in the elevator between the elevator door and the wall of
the elevator shaft. The elevator was activated and the boy was
dragged up to the third floor. Police came and ∏ came and the police
worked for 4 ½ hours to free the boy. His mother was there and
watched as the boy moaned and cried and flailed his arms and she was
restrained from touching him and he died while still trapped. ∏ became
severely depressed and self destructive. She slashed her wrist and
required physical therapy and extensive counseling and

Issue: Whether a parent can recover damages for the emotional

anguish of watching her young child suffer and die in an accident
caused by (D)’s negligence.
• Whether liability should exist where there was no potential for
personal injury, but distress resulted from perceiving the
negligently inflicted injuries of another

Rule: A cause of action for emotional distress would require the

perception of death or serious physical injury.

The cause of action we approve today for the negligent infliction of

emotional distress requires proof of the following elements:
• (1) the death or serious physical injury of another caused by
(D)’s negligence
• (2) a marital or intimate familial relationship between (P) and the
injured person
• (3) observation of the death or injury at the scene of the accident
• (4) resulting severe emotional distress

Notes and questions:

• Note 3
o Developed sensory perception requirement
• Note 4
o “absent exceptional circumstances recovery should be
limited to relatives residing in the same household, or
parents, siblings, children, and grandparents of the victim.
• Note 10 – unmarried couples and emotional distress
• Questions lies not in the hastily-drawn ‘bright-line’ distinction
between married and unmarried persons but the ‘sedulous
application’ of the principles of tort law.
o Factors are listed on pg 294 (bottom).

Johnson v. Jamaica Hospital

Facts: In this case, ∏’s daughter was born and kept in the hospital for
further treatment. ∏ came to see her a week later, and the baby was
discovered missing. When she was missing, ∏ brought suit for the
emotional distress brought about by the defendant’s negligence. The
baby was recovered by the police 4 months later.

Issue: Whether the parents have a claim of emotional distress against

the (D) hospital.

Rule: There is no basis for establishing such a direct duty. This court
has refused to recognize such a duty on the part of a hospital to the
parents of hospitalized children….and there is no reason to depart from
that ruler here.
• Exceptions
o Exceptional circumstances: a duty to transmist truthfully
information concerning a relative’s death or funeral which
the hospital assumed by sending the message, and the
mishandling of or failure to deliver a dead body with the
consequent denial of access to the family.

Reasoning: (P) have stated no basis for recovering under the

standard set forth in Bovsun in that they have not alleged that were
within the zone of danger and that their injuries resulted from
contemporaneous observation of serious physical injury or death
caused by (D)’s negligence.

The foreseeablity that such psychic injuries would result from the injury
to Kawana does not serve to establish a duty running from (D) to (P)
and in the absence of such a duty, as a matter of law there can be no

Conclusion: (P) may not recover damages from (D) hospital for any
mental distress or emotional disturbances they may have suffered as a
result of the direct injury inflicted upon their daughter by (D)’s breach
of its duty.

Notes and questions

• Consortium claims.

Class 17

Intra-familial duties

Intra family duties

Broadbent v. Broadbent

Facts: While (D) mother was watching her 2 ½ year old son swimming
at the family residence, the phone rang. (D) went inside to answer it.
When she looked out and could not see her son she ran out and found
him at the bottom of the pool. Although he was ultimately revived, he
“suffered severe brain damage because of lack of oxygen. He has lost
his motor skills and has no voluntary movement. The action was
brought by his father as conservator of his son.

Issue: Whether the doctrine of parental immunity bars a son’s action

against his mother for negligence?

Rule: Parents always owe a parental duty to their minor child.

Reasonable parent test – in which a parent’s conduct is judged by

whether that parent’s conduct comported with that of a reasonable
and prudent parent in a similar situation.

Holding: A parent is not immune from liability for tortious conduct

directed toward his child solely by reasons of that relationship. And, a
parent is not liable for an act or omission that injured his child if the
parent acted as a reasonable and prudent in the situation would.

Notes and questions:

• Zikely v. Zikely
o The “infant plaintiff was injured when the (D) parent turned
on a hot water faucet in a tub to prepare a bath and then
left the room.
o The child, left unsupervised, wandered into the bathroom
and fell into or otherwise entered the tub, suffering severe
o The majority understood Holodook to protect parents who
created dangers as well as those who failed to protect
children against dangers:
 To read Holodook to allow suits in such cases would
mean that every time a parent plugged in an iron,
started a toaster, or boiled a pot of water on the
stove, he would be subjected to potential liability if
an unsupervised child in contact with these common,
daily household hazards in a manner which resulted
in injury. To accept such a position would be to strip
Holodook of a significant part of its meaning.
o Note 10
 Rule – parents and religious belief
• parent’s religious belief must yield when—
judged by accepted medical practice—if
jeopardizes the of a child.


Government liability

Municipal and state liability

Riss v. City of New York

Facts: Riss sued the City of New York for negligence alleging that the
police failed to provide police protection. She was terrorized for months
by an old boyfriend, and he threatened to kill or maim her. After that
she received a phone call saying it was her last chance. The next day a
thug hired by the exboyfriend threw lye in her face causing blindness
in one eye, and loss of a portion of vision in the other eye and
permanent face scarring. She had asked for police protection many

Issue: Is a municipality liable for failure to provide special police

protection to a member of the public who was repeatedly threatened
with personal harm and eventually suffered injuries for lack of

Rule of Law and Holding

The municipality does not have a duty to provide police protection to
an individual. It has a duty to the public as a whole, but no one in

Discussion: The issue of the liability of a municipality for failure to

provide special protection to a member of the public who was
repeatedly threatened with personal harm and eventually suffered dire
personal injures for lack of such protection…needs to be
distinguished from certain activies of government which
provide services and facilites for the use of the public, such as
highways, public buildings and the like, in the performance of which
the municipality or the state may be liable under ordinary principles of
tort law.

• When the municipality might be subject to liability: In cases involving
 Activities that displace or supplement traditionally private
enterprises like rapid transit systems, hospitals, and places of
public assembly
 Activities that provide services and facilities for the use of the
public like highways, public buildings, etc.
 Reasoning: Because these services and facilities are for the
direct use of members of the public
o This case involves governmental protection services
from external hazards (such as controlling the activities
of criminal wrongdoers
o if we were to permit tort liability for those who seek
police protection based on specific hazards, then this
would cause a determination as to how the limited
resources of the community should be allocated and
without predictable limits
o It should be left up to the legislature to determine how
to use the resources and the scope of public
o Imposing liability in this case would not sure the
problem of crime and it would bankrupt the city

Dissent: “No mucipalitly has gone bankrupt because it has had to

respond in damages when a policeman causes injury thorugh
carelessly driving a polic car or in thousands of other situations where,
by judicial fiat or legislative enactment, the state and its subdivisions
have been held liable for the tortuous conduct of their employees.

Notes and questions:

 Sichuster v. City of New York

o Schuster provided information to police that led to the
capture of a noted criminal, Willie Sutton. Schuster
recognized Sutton from an FBI flyer that had been posted
in his father’s store. Shortly after he supplied the
information to police his life was threaten, and three weeks
later he was killed.
o The court 4-3 sustained (P)’s claim that the police were
under a legal duty to respond reasonably to Schster’s
request for protection.
 “They are active in calling upon the citizen for help,
ad utilizing his help when it is rendered.
 Note 3 Municipal Transport
 Weiner v. Metropolitan Transpiration Authority
o Involving a subway assault as (P) was decending the
stairway to train level in a station where no attendant or
guard was present.
o The court ruled that a public transportation authority
“owes no duty to protect a person on its premises from
assault by a 3rd person, absent facts establishing a special
relationship between the authority and the person
assaulted. That a nongovernmental common carrier would
be liable under the same factual circumstances is not
determinative of the authority’s liability.”
 Crosland v. New York City Authority
o In which a Transit authority employee alledly witnessed the
attack on the (P) and failed to summon assitance even
though he could have done so without personal risk.
 Note 4 – The 911 Cal
o As municipalities set up emergency phone numbers the
question of liability followed quickly.
o De Long v. County of Erie – a woman called 911 to report a
burglar outside. The court treated a 911 operator’s
assurance that help was being sent “right away” as the
assumption of a duty to respond with due care to the
victim’s call for help.
o Rule: both direct communication and reliance by the
caller are needed to create the special relationship
that New York requires for that duty.
o Merced v. city of new york- a 911 case in which the caller
apparently as not the victim, the court held that the
required relationship “cannot be established without proof
that the injured party had direct contact with the
muncipality’s agents and justifiably relied to his or her
detriment on the muncipalites assurance that would act
that on that party’s behalf.
Lauer v. City of New York

Facts: Three year-old Andrew Lauer died on August 7,1993. That same
day, Dr. Eddy Livavious, a New York City Medical Examiner, performed
an autopsy and prepared a report stating that eh child’s death was a
homicide caused by “blunt injures” to the neck and brain.

Weeks later, on August 31, 1993, the Medical Examiner and a

neuropathologist conducted a more detailed study of Andrew's brain.
The report, prepared in October 1993, indicated that a ruptured brain
aneurysm caused the child's death, thus contradicting the earlier
conclusion. The Medical Examiner, however, failed to correct the
autopsy report or death certificate, and failed to notify law
enforcement authorities.

During this entire between the first autospsy and the new findings
Andrew’s father was being invistaged for homicide.


 Municipalities long ago surrendered common law tort

immunity for the negligence of their employees.
o A distinction is drawn, however, between
“discretionary” and “ministerial” governmental acts.
 A public employee's discretionary acts--meaning
conduct involving the exercise of reasoned
judgment--may not result in the municipality's
liability even when the conduct is negligent.
 By contrast, ministerial acts--meaning conduct
requiring adherence to a governing rule, with a
compulsory result--may subject the municipal
employer to liability for negligence

Violation of a statute resulting in injury gives rise to a tort action only if

ithe intent of the statute is to protect an individual against an invasion
of a property or personal interest.

Discussion: No one disputes that the Medical Examiner's misconduct

here in failing to correct the record and deliver it to the authorities was

Absent the existence and breach of…a duty, the abrogation of

governmental immunity, in itself, affords little aid to a (P) seeking to
cast a municipality in damages.
Holding: Here there was no duty found by the court because the
statute in question did not apply to the (P).

The federal tort claims act

 Federal government waived its general tort immunity in 1946

o 1) The district courts…shall have exclusive jurisdiction of
civil actions on claims against the U.S….for money
damages, injury or loss property…personal injury or death
o 2) Any action against the U.S. shall be tried without a jury
o 3) The U.S shall be liable but not pay punitive damages
o 4) No attorney shall charge, demand, receive, or collect for
serves rendered fees in excess of 25% of any judgment
o 5) Action against the government is separate from a
private action against the employee
 § 2680. The provisions of this chapter and
section 1346(b) of this title shall not apply to—
• (a) (1) Any claim based upon an act or
mission of an employee of the
government, exercising due care, in the
execution of a statute or regulation,
whether or not such statute or regulation
be valid
• (2) or based upon the exercise or
performance of the failure to exercise or
perform a discretionary function or duty
on the part of a federal agency or an
employee of the government, whether or
not the discretion involved be abused.

Cope v. Scott

Facts: Cope was driving on a road and collided with another driver on
a sharp turn. He sued the national park service and the other driver,
claiming that the service failed to maintain the road adequately and
failed to put up warning signs. This place where the collision occurred
was recorded as a high accident area and recommended that the road
be repaved using coarse aggregate to prevent skidding. It was listed as
the 33rd thing on the priority sheet to be fixed out of 80. There were 2
slippery when wet signs near the accident but we don’t know how
close and the service moved for summary judgment arguing that its
inaction was discretionary and therefore exempt from suit under the

(P) sued the (D) and the Park Service, alleging that the latter was
negligent “in falling to appropriately and adequately maintain the
roadway of Beach Drive….and failing to place and maintain appropriate
and adequate warning signs along the roadway.”

Issue: Is failure to maintain roadway discretionary and exempt from

suit under FTCA and is its failure to post warning signs discretionary
and exempt under FTCA?

Rule: The SC court has established a two-step test to determine

whether an action is exempt from suit under the discretionary function
 1) First step, whether any “federal statute, regulation, or policy
specifically prescribes a course of action for an employee to
follow. If a specific directive exists, then the employee had no
o The only issue is whether the employee followed the
directive, and is thus exempt under the first caluse, or
whther the employee did not follow the directive, thus
opening the government to suit.
o Because no choice is involved where a “specific
prescription” exists, the discretionary function exception…
in not applicable.
 The discretionary function exception may be
applicable where there is no specific
prescription and the government employee has
a “choice” regarding how to act in particular
 2) Second step, where the “basic inquiry” is whether the
challenged discretionary acts of a government employee “are of
the nature and quality that Congress intended to shield from tort
liability…decisions that require choice are exempt from suit
under the FTCA only if they are “susceptible to policy judgment”
and involve an exercise of “political , social, or economic

• Can’t just have a hint of policy considerations, must be fraught with

them to be exempt from suit under FTCA.
• With regard to the claim that the road was not adequately maintained,
the two step test shows that this is exempt from suit—there are policy
considerations and there are no specific prescriptions
• In terms of the sign argument, there is no specific prescription and the
discretion involved in posting signs is not the kind of discretion
protected by the discretionary function exemption to the FTCA—not
fraught with policy considerations

See text book for details page. 258

Holding: Any discretion exercised by the government with respect to

where and how to psot signs warning of dangerous road conditions did
not implicate “political, social, or economic” policy choices of the sort
that congress intended to protect from sutis under the FTCA.


Causation in Fact

Basic Doctrine

 Judical decisions have accepted the need for some connection

between the (P)’s harm and the (D)’s negligent conduct before
imposing tort liability on the (D).
 Courts have traditionally denied liability when it is clear that the
connection was missing.
 What do we means when we say that “X cause Y”?
o The core of causation is that if X had not occurred, Y would
not have occurred.
o This requirement is frequently referred to as “but-for.” It
means that X must have been necessary for the outcome
o Before causation can be assessed X and Y must be
o For our purposes at this point, X is the toortious conduct of
the (D) and Y is framed, ansering the question requires the
counterfactual inquiry, what would have happened (in
terms of Y( if X never recovered?

Stubbs v. City of Rochester

Facts: The City of Rochester (D) supplied clean water for drinking,
and water known to be contaminated with sewage for fighting fires.
The drinking water became contaminated with the unclean water
through Rochester’s negligence but it was not discovered until
October. (P) contracted typhoid fever in September and attributed to
the city’s negligence. The evidence of the case shows that around this
time the city saw an increase in cases of typhoid fever. Stubbs (P)
contracted typhoid fever and sued D for negligence.

(P) called in several witnesses:

(1)Dr. Goler, a physican and health office of the city, he had an

opinion as to the cause of the infection of (P) and such opinion
was that it was due to contaminated water.
(2)Doctor Dodge, of the faculty of the universityof Rochester, a
professor and bacteriogist, and several other Doctors had the
opinion that (P) contracted typhoid fever from drinking polluted
(3)(p) had an additional 57 witnesses to testify that they drank the
water and got typhoid fever.

The trial court entered a nonsuit for D, which was affirmed by the
Appellate Division, and P appealed.

Issue: Did the (P) produce evidence from which inference might
reasonably be drawn that the cause of his illness was due to the use of
contaminated water furnished by (D).

Rule: When there are several possible causes of injury for one or more
of which a (D) is not responsible, (P) cannot recover without proviing
that the injury was sustained wholly or in part by a cause for which (D)
was responsible.

Rule was modified by court…If two or more possible causes exist, for
only one of which a (D) may be liable, and a party injured establishes
facts from which it can be said with reasonable certainity that the
direct cause of the injury was the one for which the (D) was liable the
party has complied with the sprit of the rule.


Defendant: The (D) argued that (a) the evidence adduced by (P) fails
to disclose that the contracted thyphoid fever by drinking
contaminated water; (b) that it was incumbent upon the (P) to
establish that his illness was to due to any other cause to which
typhoid fever may be attributed for which (D) is not liable.

Notes and questions:

Note 6:

 Two-disease rule
o Whereby the (P) with for example asbestosis recovers (if at
all) only for the present disease, and recovers for
consquent ling cancer or mesothlioma, only when the ore
serious disease occurs.
o (P) can only obtain recover for emotional distress related to
the prospect of developing the more serious condition at
the time of the suit for the second disease.
 Several arguments cut in favor of permitting those who can show
a better-than0even chance of future disease to sue now. These
include the diffculity of proof if one must wait 20 or more years
to sue. This goes to any fault requirement and also to caustion
since many more events have intervened.

Note 8:

 Mitchell v. Pearson Enterprises

o A guest in (D)’s hotel was murdered in his room by an
unknown person.
o The court affirmed SMH for the (D) on the ground that
proof of causation was lacking. (p. 347)

Note 9:

 Burgos v. Adueduct realty corp.

o Tenant sued her landlord for an assault committed in the
building and sought to prove that the assult was by an
intruder rather than another tenant.
o The court thought it unreasonable to require the tenant to
indentify the perpetrator. It was enough if the jury could,
through logical inferences to be drawn from the evidence.
Zuchowicz v. U.S

Facts: (D) admitted that its doctors and/or pharmacists at the naval
hospital had been negligent in directing (P) to ingest 1600 miligrams of
Danocrine-double the maximum authorized dosage. (P) took the
double dosage for about a month. About 4 months after stopping the
(P) was diagnosed with PPH a rare and fatal disease. (P) became
pregnant and was unable to get the required lung transplant to correct
the PPH and after giving birth she died.

Issue: Did the action for which the (D) is responsible cause, in a legal
sense, the harm which the (P) suffered?

Discussion: Dr. Mowski, one of (P)’s witnesses tesifed that Danocrine

is safe and effective when properly used. He also testified that that
there had been no formal studies of excess doses and that “very, very,
few women have received doses this high in any setting.”

Expert witnesses:

(1)Dr. Matthay – a professor at yale. He is nationally recognized

expert in the field of pulmonary medince, with extensive
experience in the area of drug-induced pulmonary diseases.
a. He was confident to a reasonable medical certainity that
the Danocrine cause (P) PPH.
b. Further testified that the progression and timing of (P)’s
diease in relation to her overdose supported a finding of
drug induced PPH
c. He also ruled out secondary PPH
(2) Dr. Tackett is a tenured, full professor of pharmacology and
former chair from the University of Georgia. He testiefed that to
a reasonable degree of scienfitif certainity, he believed that the
overdose of Danocrine, more likely than not, caused PPH in the

Was the admission of (P) expert’s testimony manifestly



 The decision to admit expert testimony is left to the broad

discretion of the trial judge and will be overturned only when
manifestly erroneous.
 The federal rules of eveidence permit opinion testimony by
experts when the witness is “qualified as an expert by
knowledge, skill, experience, training, or education,” and “if
scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in
 Dauber
o Leaves in place the “gate keeper” role of trial judges
o Requires judges make a “preliminary assessment of
whether the reasoning or methodology underlying the
testimony is scientifically valid and of whether that
reasoning or methodology properly can be applied to the
facts in issue.
o Factors to be used in inquiry
 1) whether the theory can (and has been) tested
according to the scientific method
 2) whether the theory or technique has been
subjected to peer review and publication
 3) in the case of a particular scientific technique, the
known or potential rate error
 4) whether the theory is generally accepted
• list is not exclusive or dispostive

Were the district court’s factual finds with respect to causation

clearly erroneous?

 Court found that the Danocrine overdose more likely than not
caused (p)’s illness. Rejected (D)’s contention of this issue.
 Court stated that (P) “establish a causal relationship
between the phyiscan’s negligent actions or failure to
act and the resulting injury by showing that the action or
omission constituted a substantial factor in producing
the injury.
 To meet the requirement the (P) must show that (D)’s behavior
was a substantial factor in bringing about the (p)’s injury.
 The court listed several factors pg. 351 bottom
 Focused on the “but for cause”

Was the overdose a but for cause of mrs. Zuchoqicz illness and

 Rule:
o In order for the causation requirement to be met, a
trier of fact must be able to detmine, by a
preponderance of eveidene, the (D)’s neglgeince
was responsible for the injury.
o For libability to exist therefore, it is necessary that
the fact finder be able to conclude, more probably
than not, that the overdose was the cause of (P)’s

Holding: Court upheld the validity of the experts. The court held that
the finding that PPH “ was more likely than not, caused by Danocrine”
was not clearly erroneous. Held that (D)’s attacks were mertiless.

Notes and questions:

Note 1

 Kumho tire co.

o We conclude that Daubert’s general holding—setting forth
the trial judge’s general “gatekeeping” obligation—applies
not only to testimony based on “scientific” knowledge, but
also to testimony based on “technical” and “other
specialzed” knowledge.
o The law grants a district court the same broad latitutede.

See note 7 about statutes (VERY IMPORTANT)

See note 8 (about substantial factor test)

Lost opportunity cases

 (P) in these “lost opportunity” cases is attempting to show that

the (D)’s negligence failed to prevent an unfavorable outcome.
The (p), however, cannot meet the traditional burden of
demonstrating by a preponderance of the evidence that, had the
(D) acted non-negligently, the harm would not have occurred.

Alberts v. Schutlz
Facts: Mr. Alberts went to Dr. Schultz on July 14, 1992, with a
condition known as ‘rest pain’ in which his right leg hurt. Dr. Schultz
did not order an arteriogram. Nor did he conduct other tests. He
referred her to a vascular surgeon, Dr. Reddy, which did not occur until
July 27th. Upon seeing the leg, Dr. Reddy immediately sent Mr. Alberts
to the hospital and ordered an arteriogram, followed by several
procedures that were performed unsuccessfully. On july 28th, bypass
surgery was attempted but the leg showed no improvement and the
amputation was performed on August 1. His leg had to be amputated.
Plaintiff had expert testimony – Dr. Max Carlton: he concluded that the
probability that Mr. Alberts’ leg could have been saved decreased
significantly because of the inaction of both physicians.

PH: Trial judge granted partial summary judgment for defendants for
failure to establish a causal connection between the alleged negligence
and the amputation.

Plaintiff claims: (1) Dr. Schultz did not advise Dee of the true nature
of his condition, (2) neglected to perform the appropriate examinations
on his leg, and (3) failed to make a timely referral to a specialist. (4)
Dr. Reddy had not properly warned Dee about his condition and (5)
had failed to perform the appropriate diagnostic tests and treatments.
““The essence of the patient’s claim is that, prior to the negligence,
there was a chance that he or she would have been better off with
adequate care. Because of the negligence, this chance has been lost”
(‘loss of chance’ rule).

Issue: Whether the plaintiff established adequate causation for a loss

of chance claim


 Lost-chance action
 The court accepts the loss of chance concept in principle.
Didn’t apply in this case, however.
 “A claim for loss of change is predicated upon the
negligent denial by a healthcare provider of the most effective
therapy for a patient’s presenting medical problem. The
negligence may be found in such misconduct as an incorrect
diagnosis, the application of inappropriate treatments, or the
failure to timely provide the proper treatment. The essence of
the patient’s claim is that, prior to the negligence, there was a
chance that he or she would have been better off with
adequate care. Because of the negligence, this chance has
been lost.”
o “Under the loss-of-chance theory, the health provider’s
malpractice has obliterated or reduced those odds of
recovery that existed before the act of malpractice.”
o “Loss of chance differs from other medical malpractice
actions only in the nature of the harm for which relief is
o “The injury is the lost opportunity of a better result, not the
harm caused by the presenting problem.”
o “The chance of a better result may be conceptualized as a
window of time that existed before the malpractice took
o “There must be proof of a causal link between the
negligence and the lost chance.”
o “The percentage of chance lost is multiplied by the total
value of the person’s life or limb” in calculating damages.
 Courts must be cognizant of two injuries the underlying injury
cased by the presenting problem and the exacerbation of the
presenting problem which evinces the chance that has been lost.
 Courts will recognize when a condition is getting worst under the
lost chance theory.


 Dr. Hutton
 (P) was supported by the testimony of Dr. Max Carlton Hutton a
vascular surgeon. He testified that Dr. Schutlz should have
performed the arteriogram when he first saw the (p) and should
not have allowed weeks to go by.
 Dr. HUtton also stated that Dr. Reddy should have performed the
arteriogram right away.
 Dr. Hutton testimony was based on the presumption Dee’s leg
could have been saved if specific arteries in his leg were suitable
candidates for bypass surgery.
o However, in his testimony he could not establish this
presumption with certaintiy because the medical records
were incomplete regarding the aspecific arteries in
o Nevertheless, Dr. Hutton testified that he could not state to
a reasonable degree of medical probability that immediate
use of the motor and sensory exams, the arteriogram, and
the bypass would have increased the changes of saving
Dee’s leg.
Holding:“The Alberts have not established the causation element in
their negligence claim. They have not demonstrated, to a reasonable
degree of medical probability, that the alleged negligence of Dr.
Schultz and Dr. Reddy proximately caused Dee to lose the chance of
saving his leg.”

Reasoning:Plaintiff failed to establish causation because:(1) could not

establish presumption that leg would have been saved with certainty
because medical records were incomplete regarding arteries in
question(2) Dr. Hutton could not pinpoint a time when the ischemia
became irreversible, nor could he pinpoint a time when the
intervention would have changed the outcome(3) Could not state to a
reasonable degree of medical probability that immediate use of the
motor and sensory exams, the arteriogram, and the bypass would have
increased the chances of saving Dee’s leg


Joint & Several Liability


 More than one relevant cause may be involved in the harm that
befell plaintiff.
 Example
o Would be a case in which two cars collide and one of the
cars goes up on the sidewalk and hits a pedistrian. The
proof shows that if either driver had been careful the
accident would have been averted. In other word, the
negligence of each driver was essential to (p)’s harm.
 In this type of case the two drivers were traditionally
held subject to “joint and several liability.”
 This meant that the (p) might sue them together or
seperatly and recover the full extent of the damges
against either one.
• Because the (p) could recover full damages in
a suit against one of the drivers, joint and
several liability also placed the burden of
pursing other peotential tortfeasors on the (D).
 Joint and several liability has come under fire in recent years
because of perceived unfairness in certain situations in which
one of the two (D)s is unable to bear his or her share of the
o If both were solvent, there was little sense of unfairness.
But if either driver turned out to be insolvent, the entire
loss would rest on the other one Thus, the (D) who was
25% at fault might bear 100% of the damages.
 The interplay of intent and negligence
o Even the states that have modified or abolished joint and
several liability still must decide one crucial question of
great practical importance. What should they do when the
defendant’s negligence combines with an intentional tort
or crime to cause plaintiff’s harm?


Multiple defendants

Summers v. Tice

Facts: Summers (P), Tice, and Somonson (Ds) were hunting quail.
Tice flushed a quail which flew between Summers and the defendants.
Defendants fired their shotguns and Summers was struck in the eye
and upper lip.
There was no evidence to show which of the defendants fired the shot
that struck Summers in the eye. Summers brought a personal injury
lawsuit against both defendants and the trial court found that both
men were liable. Tice and Somonson appealed on the grounds that
they were not joint tortfeasors and they had not acted in concert. They
also asserted that there was insufficient evidence to establish which of
them had caused Summers’s injuries.

Issue: Whether the judgment against both (D)s may stand?


• If two defendants are negligent in concert and damage is caused such

that only one or the other would be liable, both defendants will be
liable for the damage if the plaintiff is unable to show which defendant
in fact caused the injury.
 To hold otherwise would be to exonerate both from
liability, although each was negligent, and the injury
resulted from such negligence.
When a party is harmed as a result of the tortious conduct of another,
a third party is liable if he (1) knows that the conduct of the person
causing the harm constitutes a breach of duty and gives substantial
assistance or encouragement, or (2) gives substantial assistance to the
person causing the harm in accomplishing a tortious result, where the
conduct of the third party, separately considered, constitutes a breach
of duty to the injured party.

Public Policy
Each joint tortfeasor is responsible for the whole damage because of
the practical unfairness of denying an injured person redress simply
because he cannot prove how much damage each party did, when it is
certain that between them they did all.

Hymowitz v. Elie Lilly & Co.

Facts: The Food and Drug Administration approved the manufacture

and marketing of the drug diethylstilbestrol (DES) in 1941 for use as a
generic drug in the prevention of miscarriages. Approximately 300
companies manufactured the drug, and as it was generic no single
company held patent. It was found later that DES created a high risk of
vaginal cancer in some female children of women who had used the

Although strong evidence links pretal DES exposure to later

development of serious medical problems, (P)s seeking relief in court
for their injuries faced two formidable and fundamental barriers to
recovery in state, (1) not only is identification of the manufacturer of
the DES ingested in a particular case generally impossible, but (2) due
to the latent nature of DES injuries, many claims were barred by the
SOL before the injury was discovered.

Because so many companies manufactured and marketed the drug,

over several years and for varying lengths of time, it was often
impossible for potential plaintiffs to identify exactly which company
had manufactured the particular batch that the plaintiff had ingested.
The cases at bar were brought by multiple plaintiffs, the daughters of
women who had used DES. At trial, the manufacturers moved for
summary judgment on the grounds that it could not be determined
with specificity they any one of them was responsible for the injuries
sustained by a particular plaintiff. The motions were denied and the
Appellate Division affirmed. New York’s highest court reviewed.
Issue: What is the method to be employed to apportion liability in a
products liability case involving a generic drug when it is impossible to
determine which manufacturer produced the drug that caused the
harm suffered by plaintiffs?

Rule: Where identification of the manufacturer of a drug that injures a

plaintiff is impossible, New York courts will apply a market share
theory, using a national market, to determine liability and
apportionment of damages.
 A (d) cannot be held liable if it did not participate in the
marketing of DES for pregnancy use; if a DES producer
satisfies its burden of proof of showing that it was not a
member of the market of DES sold for pregnancy use,
disallowing exculpation would be unfair and unjust.
 Nevertheless, because liability here is based on the
overall risk produced, and not causation in a single
case, there should be no exculpation of a (D) who,
although a member of the market producing DES for
pregnancy use, appears not to have caused a particular
(p)’s injury.

Discussion: The court determined that alternative liability provided

no relief to the (p) under the DES case. However, the court still
managed to recognize that “the present circumstances call for
recognition of a realistic avenue of relief for (P0 injured by DES.

Here, the court decided to adopt a version of the market share


The DES case, however, presented a unique problem: the

identification, for purposes of determining liability, of the exact
manufacturer responsible for the plaintiffs’ harm.Generally, as the
court in Hymowitz observed, “In a products liability action,
identification of the exact defendant whose product injured the plaintiff
is generally required.” However, as here, such identification is
sometimes difficult. The court thus concluded, “Where two defendants
breach a duty to the plaintiff, but there is uncertainty regarding which
one caused the injury, the burden is upon each such actor to prove
that he has not caused the harm.” As a result, there may be broad
apportionment of blame. As the court states, “Successive tort-feasors
may be held jointly and severally liable for an indivisible injury to a
plaintiff.”The court must then evaluate different approaches to in
assigning responsibility, beginning first with alternative liability: “Use
of the alternative liability doctrine generally requires that the
defendants have better access to information than does the plaintiff,
and that all possible tort-feasors be before the court. It is also
recognized that alternative liability rests on the notion that where
there is a small number of possible wrongdoers, all of whom breached
a duty to the plaintiff, the likelihood that one of them injured the
plaintiff is relatively high, so that forcing them to exonerate
themselves, or be held liable, is not unfair.” The high number of
possible tort-feasors in Hymowitz makes this approach impractical,
however. Similarly, the theory of concerted action falls short: “The
theory of concerted action, in its pure form provides for joint and
several liability on the part of all defendants having an understanding,
express or tacit, to participate in a common plan or design to commit a
tortious act.” However, the fact that the manufacturers were
simultaneously engaged in the manufacture of the drug is not
indicative of communal interest or action, as the court states, “Parallel
activity, without more, is insufficient to establish the agreement
element necessary to maintain a concerted action claim.”Recognizing
the circumstances of the case at bar, the court thus crafts a new
approach for apportionment of responsibility: “Given this unusual
scenario, it is more appropriate that the loss be borne by those that
produced the drug for use during pregnancy, rather than by those who
were injured by the use, even where the precise manufacturer of the
drug cannot be identified in a particular action.” Thus, the court
adopted a market share theory, using a national market, for
determining liability and apportioning damages in the diethylstilbestrol
(DES) cases.

Held. The court affirmed the lower courts’ denial of summary

judgment and adopted a national market-share theory for apportioning


Proximate cause

Unexpected harm

Proximate cause

• In the cases presented in this section, either the (P) has made
out the elements previously discussed—duty, breach of duty, and
cause in fact—or else they are sufficiently in dispute that the (D)
cannot establish the absence of any of them as a matter of law.
• Instead, the (D) will argue that even a negligent (D) who actually
caused the harm in question should not be liable for the (P)’s
harm. The legal formulation of the claim is that the (D)’s
admitted or assumed negligence was not the proximate cause
(or “legal cause”) of the (P)’s harm.
o The cases in which this claim is given serious consideration
tend to have one feature in common—something quite
unexpected has contributed either to the occurrence of the
harm or to is severity

Unexpected harm

Benn v. Thomas

Facts: In this case, defendant rear ended the decedent’s van and
caused him injuries and he died 6 days later of a heart attack. He died
of a heart attack six days after suffering a bruised chest and fractured
ankle in a motor vehicle accident caused by (D)’s negligence.

The estate’s medical expert, Dr. James E. Davia, testified that Loaras
had a history of coronary disease and insulin-dependent diabetes. …he
viewed “the accident that (P) was in and the attendant problems that it
caused in the body as the straw that broke the camel’s back.

∏ requested the eggshell ∏ charge, and the trial court denied the
request and gave a general charge

The jury determined that the ∆ was not a proximate cause in the ∏’s
death and gave only damages for the injuries sustained

Issue: Whether the trial court erred in refusing to instruct the jury on
the “eggshell plaintiff” rule in view of the fact the (P)’s decedent, who
had a history of coronary disease, died of a heart attack six days after
suffering a bruised chest and fractured ankle in a motor vehicle
accident caused by (D)’s negligence.

Rule: A tortfeasor whose act, superimposed upon a prior latent

condition, results in an injury may be liable in damages for the full
disability. This rule deems the injury, and not the dormant condition,
the proximate cause of the (P)’s harm.

*eggshell plaintiff rule: requires the defendant to take his plaintiff as

he finds him, even if that means that the defendant must compensate
the plaintiff for harm an ordinary person would not have suffered.

Reasoning: We agree that the jury might have found the (D) liable
for (p)’s death as well as his injuries under the instructions as given.
But the proximate cause instruction failed to adequately convey the
existing law that the jury should have applied to this case.

The eggshell (p) rule rejects the limit of foreseeability that courts
ordinarily require in the determination of proximate cause. Once the
(P) establishes the (D) caused some injury to the (P), the rule imposes
liability for the fill extent of those injuryes, not merely those that were
foreseeable to the (D).
• Restatement (Second) of Torts § 461 – the negeligence condition
of the other…makes the injury greater than that which the actor
as a reasonable man should have foreseen as a probable result
of his conduct.
• the court says that adequate medical testimony was introduced
that says that the accident was responsible for the heart attack
and death—even though the evidence was conflicting, it was
sufficient for the jury to find whether the heart attack and death
were a direct result of the injury that was fairly chargeable to the
defendant’s negligence

Notes and Questions

• Dillon v. Twin State Gas

o A boy lost his balance while sitting on the girder 19 feet
above a bridge. In an effort to avoid falling, he grabbed
hold of a negligently exposed wire and was electrocuted.
o The court concluded that if it were found that the boy
would have been killed by the fall without regard to the
wire, any award against the (D) utility for the exposed
wireshould be reduced drastically.
• Emotional distress
o In discussing claims based on emotional distress, courts
often say that to be actionable the harm must be such that
it would cause distress in the ordinarily sensitive person or
the reasonably constituted person.
 The third restatement provides that when (P)s suffer
great damages than those that were foreseeable
because of preexisting “physical or mental
conditions” the (P) may recover for all such harm.
• Secondary Harm
o If a pedestrian who has been run down by a car is taken to
a hospital and because of the hospital’s negligence incurs
greater medical expenses or suffers more pain and
suffering than he would have if the hospital had not been
negligent, he can collect his incremental as well as his
original damages from the person who ran him down, since
they would been avoided if that person had used due care.

In re arbitration between Polemis and Furness, Withy & Co.,


Facts: The owners of a ship sought to recover damages from the (D)s
who chartered the ship. The contract of the charter was read to hold
the (D) charters responsible damages caused by a fire due to their

Respondent owners of a vessel chartered their vessel to appellants to

have petrol cargo transported to Morocco. While the appellants’
workmen were discharging the cargo, they negligently knocked down a
plank onto the hold in which the petrol was stowed. This created a fire
which completely destroyed the vessel. The owners of the vessel sued
the charterers for damages, alleging that the loss of the vessel was a
result of the charterers’ negligence in causing the plank to fall. The
charterers claimed that the fire that destroyed the vessel was too
remote an effect of the falling plank because they could foresee the
falling plank would create a spark.
The case was heard by arbitrators who found “that the fire arose from
a spark igniting petrol vapour in the hold; that the spark was caused by
the failing board coming into contact with some substance in the
hold….and that the causing of the spark could not reasonably have
been anticapted from the falling of the board though some damages to
the ship might reasonably have been anticipated.

Issue: Should the workmen on the vessel be liable for the fire that
destroyed the vessel even though this exact type of damage was an
unforeseeable result of their breach of duty?

Holding/Rule: Yes. If a person can foresee some injury from his

breach of duty, he is liable for all injury that is a direct result of the

Rationale: The court said that foreseeability of injury is irrelevant. If

the consequences of the breach follow in a direct and unbroken chain
of events, the defendant should be liable even if he could not foresee
the exact nature of those consequences

Additional reasoning: But if the fact would or might probably cause

damage, the fact that the damage it in fact causes is not the exact
kind of damage would expect is immaterial, so long as the damage is
in fact directly traceable to the negligent act, and not due to the
operation of independent causes having no connection with the
negligent act, except that could not avoid its results.

Overseas Tankship (U.K.) Ltd. V. Morts Dock & Engingeering

Co. Ltd. (The Wagon Mound)
Facts: (P)s respondents owned a wharf in Sydney Harbour, Australia
and were refitting the ship Corrimal. At a different wharf, about 600
feet away, the ship Wagon Mound, chartered by (D)s, was taking on
bunkering oil. A large quantity of bunkering oil spilled into they bay
and some of it concentrated near (P)s property. (D)s set sail, making
no effort to disperse the oil. (P) after discusssions internally and with
(D) opted to continue working.

Then, oil under or near the wharf was ignited and a fire spread, causing
extensive damge to the wharf and (P)’s equipment.

Judge's Rule: A person is only liable for the probable consequences of

his negligent acts. The probable consequences are judged by the
standard of foreseeability by the reasonable man.

Classical Holding: The test of liability for negligence is foreseeability

of the injury caused by that negligence.

Reasoning: The court directly overruled Polemis, stating that is was

bad law which resulted in unfair results. They reasoned that it was
better policy to hold a person accountable for the probable
consequences of his action so as to avoid an unjust result when slight
negligence, which normally resulted in only minor damages, freakishly
resulted in major damage. It also avoids the controversies of
establishing chain of causation.

Online notes: The Wagon Mound rule of foreseeability of damages

presents problems when the damages are neither routine nor freakish,
but in the middle. Then the test becomes significance; if the
unusualness of the details is significant in the outcome of the damage,
then the damage was unforeseeable; if not significant, then the
damage was foreseeable. 2. The foreseeability rule also brings up
subtleties of damage.

The thin skull rule, or "you take your victim as you find him" was
apparently left unshaken by Wagon Mound. 4. Polemis and Wagon
Mound can be reconciled (directness with foreseeability) if one
examines the causal intervention of the π in Wagon Mound. In Polemis,
there was no intervention between the dropping of the board and the
explosion. In Wagon Mound, the π had to light the fire. There could
have been a defense of assumption of risk or contributory negligence
when the π recommenced welding operations. Furthermore, the Hand
Formula could come into play if either party knew that there was a
very slight possibility of fire, but failed to prevent it because it was too


Superseding causes

Doe v. Manheimer

Facts: (P), who was working as a meter reader, was rape by an

unidentified assilant on property owned by the (D). As she approached
a male on the sidewalk, pulled a gun from a stchel that contained other
items suggesting that he had planned a rape.

The area was known for having a high crime rate and the bldg. at
which she was assaulted had occurrences of this before.She was
accosted in front of a building which hadn’t kept up its sumac bushes.
The assailant pulled a gun, grabbed her and drug her between the
bldg.’s and behind the bushes where he was shielded from the road.

14 months earlier, the (D)’s 90-year-old mother had been bound,

gagged and robbed in the package store at the front of the building on
the (D)’s property.

(P) brought in an environmental psychologist as an expert witness that

opined that the physical confirguration of the specifc site increased the
risk of violent crimes between strangers by creating a “protiective”
zone that reduced or eliminated visibility and, henece, served as an
inducement for crime.

Issue: Whether a landowner may be liable in tort for damages arising

from the rape of a pedestrian committed on the landowner’s property
behind brush and trees that shielded the area from view from the
nearby public sidewalk and street.


• The issue of proximate cause is ordinarily a question of fact for

the trier. Conclusions of proximate cause are to be drawn by the
jury and not by the court.
o It becomes a conclusion of law only when the mind of a fair
and reasonable man could reach only one conclusion; if
there is room fore a reasonable disagreement the question
is one to be determined by the trier of fact
• Proximate cause
o An actual cause that is a substantial factor in the resulting
 Substantial factor:
• Whether the harm which occurred was of the
same general nature as the foreseeable risk
created by the (D)’s negligence.
 Scope-of-risk
• A negligent (D), whose conduct creates or
increases the risk of a particular ham and is a
substantial factor in causing that ham is not
relieved from by liability by the intervention of
another person:
o Except
 1) where the harm is
intentionally caused by the 3rd
 2) is not within the scope of
the risk created by the (D)’s
o The reason for the general rule
precluding liability where the
intervening act is intentional or
criminal is that in such a case the 3rd
person has deliberately assumed
control of the situation and all
responsibility for the consequences
of his act is shifted to him.


• The reason for this is that once a third party assumes

control of the situation, all liability is shifted to him.
• The plaintiff argues that the bush actually promoted or
spawned more violence.
o The court argues that this is too broad. The harm she
suffered cannot be seen as within the scope of risk
for defendant.
o It is a stretch to view the rapist as a dependent
intervening force, a predictable response to the
bush’ stimulus.
 A prudent person would not infer that
overgrown vegetation would prompt a violent
o The court also explains that there was no record of
anything like this happening at this location.
 The only thing that has occurred there is the
vagrancy of bums.
 There’s no evidence aside from her
circumstance that this location is a catalyst for
o If she had tripped on the bush and broken her ankle
the owner would have been liable.
• Court says: “Our cases make it clear that, to be
within he “scope of risk” the harm actually suffered
must be of the same general type as that which
makes the (D)’s conduct negligence in the first

Notes and questions:

• 1) It is different here. In Zuchowicz the court held that a substantial

factor was the necessary test of a but-for factual causation analysis.
Here the substantial factor test is used for proximate causation.
• 2) In that it gives opportunity and an outlet for the performance of an
• 3) It seems the same.
• 4) Yes, the railroad put her involuntarily into a dangerous situation.
There was a special relationship there that required them through their
negligence to provide a safe way back.
• 5) Yes, the result would have been the same, as the question was
whether the lights were adequate for exiting in case of a fire. The
cause of the fire is irrelevant. The guests are beholden to the hotel
• 6) This case explains that the EXACT circumstance does not have to be
foreseen, just the type or class of injury that is possible.

Class 24


Contributory and comparative negligence

Plaintiff’s Fault

• The common law has reconginzed several defeneses against the

(P)’s claim.
• By far the most common is the (D)’s contention that even if (D)
was negligent toward the (p), the (P) was careless about his or
her own safety and was “contributorily” negligent.

Contributory negligence

• Limitations on contributory negligence

o Even if contributory negligence was found in a particular
case, several rules emerged over the years that limited the
applicability of the defense.
 Recklessness
• Virtually all courts deceided that contributory
negligence was a defense only in cases of
negligence. If the misconduct of the (D) was
more serious—recklessness or willful
misconduct—the appropriate defense would
have been “contributory recklessness” or
“contributory willful misconduct.” Contributoy
regligence was totally irreleveant in such cases
and the (P) received all of his or her damages.
 Last clear chance
• Contributory negligence was also disregarded
under circumstances that came to be called
“last clear chance.” In these cases the (P)
behaved carelessly and got into a dangerous
situation that led to injury. In response to the
defense of contributory negligence, (P) claimed
that even though (p) was careless for P’s own
safey, the (D) had, but failed to utlizie, the “last
clear chance” to avoid the injury to (P).
o Two types of dangerous situations
triggered the doctrine of last clear
 1) The (p) had gotten into a
position of “helpless peril” and was
no longer able to take proctective
 2) The other type of last clear
chance case involved a (P) who
oblivious to the danger but who
could, if behaving reasonably,
become aware of it and avoid harm
up to the last moment.
o When last clear chance was held
applicable, the fact that the (P) was
contributorily negligent became totally
irrelevant and the (P) recovered all
appropriate damages with no offset. The
doctrine remains important in states that
still retain contributory negligence.
 Refusal to impute contributory negligence
• The most significant example of imputed
primary negligence is respondeat superior, the
doctrine that has given rise to the imposition of
liability on employers.
o Example
 If a child is hurt through the
combined negligence of its mother
and a stranger, we generally no
longer impute the mother’s
neglgigence to bar the child’s
 The jury’s role

Comparative negligence

• Three principal versions had developed.

o 1) “Pure” comparative negligence, the (P) who is 90% to
blame for an accident can recover 10% of the damages
from the (D) who was found to be 10% at fault.
 (A defendant who was also hurt in that same
accident could recover 90% of her damages the (P)).
o 2) The second and third versions are lumped together as a
“modified” system.
 Under one variant, a (P) who is at fault can recover
as under the pure system but only so long as that
negligence is “not as great as” the (D)’s.
 Under the other variant, (P) can recover as under the
pure system but only so long as that negligence is
“no great than” the (D)’s.

• 3 types of regimes:
o “Pure” comparative negligence: (like UCFA) P who is 90%
at fault can recover 10% of the damages from D who was
found to be 10% at fault. D hurt in same accident could
recover 90% of damages from P.
o “Modified” systems
 P who is at fault can recover as under the pure
system but only if P’s negligence is “not as great
as” D’s. (So, P = 50% & D = 50%, P can’t recover
 P who is at fault can recover as under the pure
system but only if P’s negligence is “no greater
than” the D’s (can be equal and still recover.) (Like
• Generally, most jurisdictions aggregate D’s %s
of fault & as long as P% < all Ds, then P can
recover; (a few don’t)
• The Uniform Comparative Fault Act: pure comparative
o Section 1 (a): reduce damages in proportion to P’s fault;
pure comparative fault; contributory negligence not a
o Section 1 (b): Comparative fault act: can compare
different degrees of lack of care; Compare P’s failure to
mitigate damages; Still need actual and proximate cause
o Section 2 (a): Jury or judge as fact finder has to decides
total amount of damages if each claimant was entitled to
recover if contributory fault disregarded AND % of total
part of each claim allocated to P, D, 3rd party D, those
released from liability (like if a party settled)
o Section 2 (b): Consider both fault and causation; (actually,
most jurisdictions compare fault) hard to come up with
 Comparing both breach and how much of the
injury you caused
 This is very arbitrary
• Look at pg; 450 note 2
o Section 2 (c): Applies joint and several liability – very
different from Iowa Code which doesn’t apply to Ds found
less than 50% of the total fault assigned to all parties
o Section 2 (d) If someone’s insolvent, reallocate the
liability to all parties – (UCFA does something other states
don’t – other states wouldn’t reallocate insolvent Ds
share among other parties but only reallocate
among remaining Ds); if insolvent D becomes solvent
then can collect and other Ds can collect from them
o Section 3: Can’t set off unless parties agree; b/c insurance
co.’s pay damages and derive the benefit. The court helps
enforce the judgment, if necessary to have parties collect
o Section 4 (a): Right of contribution whether or not
judgment recovered against all or any; can file a lawsuit for
contribution by other Ds; can recover based on whatever %
of fault allocated by jury
o Section 4 (b); D who paid more than fair share through
settlement than he would have had to pay based on jury’s
percentage of fault (not taking in to account if other parties
are insolvent) contribution available only if liability against
whom contribution sought has been extinguished AND to
extent amount was reasonable (assess the person’s
settlement for reasonableness)
o Section 5 (a): can recover judgment for contribution if
paid more than share; must commence suit w/in 1 year
o Section 6: settle, released from liability, but doesn’t mean
other Ds are too (unless settlement agreement says that);
However, claim against releasing person against other Ds
reduced by amount of released person’s equitable share of
obligation; can get a windfall under UCFA (opposite is pro
tanto approach -- $ for $)
• The UCFA reallocates insolvent D’s % across ALL
o $ insolvent D owes x (party’s % of
(100% - insolvent D’s%)
• Iowa Statute
o Section 668.3: modified comparative fault - P can only
recover if own % of fault doesn’t exceed combined % of
fault of Ds; state aggregates
o Recover economic damages only
• Notes and questions
o In wrongful death suit, majority would impute negligence of
the decedent, while the minority wouldn’t.
o In loss of consortium claim, impute P’s decedent’s
negligence to spouse – considered 1 economic unit and
don’t want P to get a windfall
o In order to invoke res ipsa, vast majority except a few
require the P must not be contributory negligent.
o Dram shop statute: prevents bar from serving minors or
drunks. If drunk served and gets into accident & sues
establishment, P contributorily negligent
 Some jurisdictions say even though P faces criminal
charges, shouldn’t bar civil claim against D who was
engaged in tortuous act; other jurisdictions bar claim
Fritts v. Mckinne

Facts: David Fritts (plaintiff’s deceased husband) and friend, David

Manus, had been drinking prior to an accident in which their pickup
truck hit a tree at approximately seventy miles per hour and
overturned. Five days later in surgery (to repair facial bones), the
defendant (Dr. McKinne) was performing a tracheostomy to allow Fritts
to breathe during surgery; Fritts began gushing blood, lost a major
amount of blood, lost consciousness and died three days later.
Defendant claims that Fritts unusual anatomy as a result of the
accident caused his artery to be located in his neck when it should
have been in his chest.

Issue:Whether the trial court erred in charging the jury on the issue of
plaintiff’s comparative negligence leading to the vehicle accident
[whether plaintiff’s pre-medical treatment conduct can be used to
show comparative negligence.]

Rule:“Under the guise of a claim of contributory negligence, a

physician simply may not avoid liability for negligent treatment by
asserting that the patient’s injuries were originally caused by the
patient’s own negligence.”- This may be the ghost of the “last clear
chance doctrine”

“Thus, aside from limited situations, negligence of a party which

necessitates medical treatment is simply irrelevant to the issue of
possible subsequent medical negligence.”

Holding:“We conclude that the interjection of the issue of Fritts’s

possible negligence in the automobile accident, a matter unrelated to
the medical procedures, was a substantial error that removed the
jury’s consideration from the relevant issues and led to an erroneous
excursion into irrelevant and highly prejudicial matters.”

Reasoning:The automobile accident is unrelated to the medical


The court maintained that the defendant’s defense [that the plaintiff’s
anatomy was anomalous and that the rupture of the artery was
inevitable] was sufficient for negligence.

Avoidable Consequences
• Even if the accident was entirely the (D)’s fault, the (P)’s
recovery might be reduced to the extent he failed to exercise
due care to mitigate the harm done.
• Avoidable consequences different from contributory
negligence – contributory negligence requires fault and
causation (needs to be but-for & proximate cause)
o Comes after P has been injured, many times, through
no fault of his own
o Comes into play after D’s liability established – P has
duty to mitigate damages, ex: P injured by D, P doesn’t
seek medical care, D shouldn’t have to pay additional costs
of injury
 When the jury allocates %s of fault, they only look at
the injury proximately caused by the D's negligent
actions; failure to mitigate is a superseding cause,
and injuries after the failure to mitigate are not
o Anticipatory avoidable consequences: duty to
mitigate, damages before they occur; ex: if you wear
seatbelt, accident will still happen by injury would be
significantly less than if you weren’t
 Contributory negligence requires you actually
contribute to initial accident & needs fault and
causation; here, failure didn’t cause accident but
increased likelihood of high damages
 Can’t take P as you find them: eggshell P rule says
you take P as you find them (if P can’t help it, born
that way, etc.) but doesn’t include if reason why P is
in weakened condition is because he failed to take
precautions that a reasonable person would
 Both treated as a form of fault under the UCFA
• Illustration: Tanberg v. Ackerman Investment
Co.: failed to mitigate back pain by losing
weight, 70% at fault; modified jurisdiction – P >
50% at fault & recovers nothing; the UCFA
would have given P 30% of damages

Class 11/3/10

Assumption of risk

• Parties sometimes agree in advance that the (D) need not

exercise due care for the safety of the (P).
• This is generally done in a more-or-less formal written contract,
usually called an exculpatory or a hold-harmless agreement.
• If the (P) is later hurt by what is claimed to be (D)’s negligence,
the contract is usually at the center of ensuing litigation.
• Such litigation generally raises two types of questions:
o 1) will the courts enforce even the most clearly drafted
contract given the type activity involved and
o 2) if so, is the contract in question sufficiently clear

Dalury v. S-K-I, LTD

Facts: (P) was badly hurt when he collied with a metal pole that
formed part of the control maze for a ski lift line. Before the season
had started (P) had purchased a season pass and signed a form that
provided in relevant part: that the (D) was released from liability and
conditions of use….

Dalury (P) was skiing at S-K-I’s (D) ski resort when he collided with a
metal pole. Daluri had purchased a season pass and signed a form
stating that he understood and freely accepted and voluntarily
assumed the risks of skiing and released D from liability. Daluri also
signed a photo identification that contained the same language.

Issue: Does a skier’s assumption of the inherent risk of skiing

abrogate the ski area’s duty to warn of or correct foreseeable dangers?

Rule: Even well-drafted exculpatory agreements, however, may void

because they violate public policy.
• According to the restatement: an exculpatory agreement should
be upheld if it is:
o 1) freely and fairly made
o 2) between parties who are in equal bargaining position
o 3) there is no social interest with which it interferes

An agreement is invalid if it exhibits some or all of the following


• 1) it concerns a business of a type generally though suitable for

public regulation
• 2) the party seeking exculpation is engaged in performing a
service of great importance to the public, which is often a matter
of practical necessity for some member of the public
• 3) the party holds itself out as willing to perform this service for
any member of the public who seeks it, or at least for any
member coming within certain established standards
• 4) as a result of the esstential nature of the service, in the
economic setting of the transaction, the party invoking
exculpation possess a decisive advantage of bargaining strength
against any member of the public who seeks [the party’s
• 5) In excersing a superior bargaining power the party confronts
the public with a standardized adhesion contract of exculpation,
and makes no provision whereby a purchaser may pay additional
reasonable fees and obtain protection against negligence
• 6) Finally, as a result of the transaction, the person or property of
the purchaser is placed under the control of the seller, subject to
the risk of carelessness by the seller of the [the seller’s] agent

Reasoning: When w substantial number of such sales take place as a

result of the seller’s general invitation to the public to utlize the
facilities and services in question, a legitimate public interest arises.
A ski area owes its customers the same duty as any other business—to
keep its premises reasonably safe.

The policy rationale is to place responsibility for maintenance of the

land on those who own it, with the ultimate goal of keeping accidents
to the minimum level possible.

Reliance on the private nature of (D)’s property would be inconsistent

with societal expectations about privately owned facilities that are
open to the general public. Indeed, when a facility becomes a place of
public accommodation, it “renders a service which has become public
interest in the manner of the innkeepers and common carriers of old.”

Holding: (agreement unforceable….court turned to a

discussion of public policy to support its holding) No. D argued
that the agreement should be upheld because ski resorts do not
provide an essential public service. The court rejected that argument
on the grounds that D’s area was open to the pubic, D advertised and
invited both skiers and nonskiers, and thousands of people bought
tickets every day through the ski season. D, not recreational skiers,
had the expertise and opportunity to foresee and control hazards and
to guard against the negligence of their agents and employees.

Notes: Courts will often not enforce exculpatory clauses as a matter of

public policy.

Notes and questions:

• Note 7:
o Hamelin v. Simpson Paper
 (P) security guard was employed by T. Company was
hurt when a wooden stair gave way under him while
hw was t work in D’s factory. After settling (p)’s
claim, D sought indemnity from T. Co via a contract
that was in place.
 The court, upheld the K despite T’s claim that the
contract violated public policy by discourgining D’s
due care.
• The majority distinguished Dalury: the
considerations there, such as unequal
bargaining power, fairness, and the benefits of
risk-spreading, are not present here.
• Note 9
o No matter what the situation, courts generally agree that
gross negligence or recklessness may never be disclaimed
by agreement no matter what words are used.
• Note 10
o Even if the realize itself is valid whether adults singing
releases can bind members of their family with increasing
• Note 12
o Bailments in parking lots – where a car might be stolen
 General rule that unilateral disclaimers are not
effective unless brought to the attention of (P) and
citing courts adopting rule
• Note 13
o Post injury releases
 Settlements can be complicated

Implied assumption of risk

• In this section, no express language or agreement indicates the

intentions or understanding of the parties.

Murphy v. Steeplechase Amusement Co.

Facts: The (D), Steeple Mausement Co., maintains an amusement

park at Coney Island. (P), a vigorous young man, visited the park with

Steeplechase Amusement (D) operated an amusement park. A ride

known as “The Flopper” featured a moving belt which, when stepped
upon, would cause a customer either to fall or to be pushed up an
incline. Murphy (P) tried the ride after watching other customers enjoy
it. Murphy knew that falling was a potential risk. Murphy claimed that
the belt jerked when he got on, causing him to fall and resulting in a
fractured knee.

(P) states in his complaint that the belt was dangerous to life and limb
in that it stopped and started violently and suddenly and was not
properly equipped to prevent injuries to persons who were using it
without knowledge of its dangers, ….

P sued, claiming that the belt was dangerous and was not properly
equipped to prevent injuries.

Issue: Is an amusement park liable for damages to a person who

sustains injuries on the ride when it is reasonably foreseeable that
some danger is involved?

Rule: One who takes part in such a sport accepts the dangers that
inhere in it so far as they are obvious and necessary, just as a fencer
accepts the risk of a thrust by his antagonist or a spectator at a ball
game the chance of contact with the ball.

Reasoning: Vistors were tumbling about the belt to the merriment of

onlookers when he made his choice to join them. He took the chance of
a like fate, with whatever damages to his body might ensue from such
a fall.

A different case would be here if the dangers inherent in the sport

were obscure or unobserved

Nothing happened to the (P) except what common experience tells us

may happen at any time as the consequences of a sudden fall.

Holding: The amusement park is not liable for any damages if a

customer sees and understands the dangers of a ride because the
customer has assumed the risk.

Davenport v Cotton Hope Plantation Horizontal Property


Facts: ∏ was injured while going down a flight of stairs in his

apartment complex. There were 3 stairwells that offered access, but ∏
used the middle stairs because they were closest to his apartment. For
2 months before his fall he had been reporting to ∆ that the floodlights
in the stairwell were not working, but he still used the stairs. One night,
as (P) descended the middle stairway to go to work, he tripped and
was hurt in the resulting fall. The night he fell, he thought he was
stepping on a stair but it was actually a shadow caused by the broken

Issue: Does assumption of risk act as a complete bar to recovery

where a state has adopted a modified comparative negligence system?

Rule: Assumption of risk applies to any case…where the facts proved

show that the person against whom the doctrine of assumption of risk
is pleaded knew of the danger, appreciated it, and acquiesced therein.

there are four requirements to establishing the defense of assumption

of risk: (1) the (P) must have knowledge of the facts constituting a
dangerous condition; (2) the (P) must know the condition is dangerous;
(3) the (P) must appreciate the nature and extend of the danger; and
(4) the (P) must voluntarily expose himself to the danger.

Pg. 486
(1)although the absolute defense of assumption of risk has
historically been treated as a separate defense from contributory
negligence, it is incompatible with our comparative fault system
(2)a (p)’s conduct in assuming a risk can be compared with the
(D)’s negligence
(3)a (P)’s conduct in assuming the risk can be made a part of our
compartive fault system
(5) even if Davenport (P) assumed the risk of injury, he
will not be barred from recovery unless his negligence
exceeds the (D)’s negligence.

Notes and questions:


Strict liability

Indiana Harbor Belt Railroad v. American Cyanamid Co.

Facts: Defendant (a chemical company) loaded 20,000

gallons of liquid acrylonitrile, a toxic substance, into a
railroad car in order to ship it to New Jersey. The car was
sitting in Plaintiff’s rail yard when a leak was discovered. The
leak was eventually brought under control, but 5,000 gallons
of the toxic substance was spilled, and it caused the
evacuation of the surrounding area. The clean-up bill was

Plaintiff sued Defendant to recover this cost. Plaintiff claimed

that Defendant was negligent, that the transportation of
toxic chemicals was an abnormally dangerous activity, and
Defendant should be strictly liable.

Indiana Harbor maintained that the transportation of toxic chemicals is

an ultrahazardous activity and therefore strict liability should apply.
The trial court granted Indiana Harbor’s motion for summary judgment
on the strict liability count and dismissed the negligence count with
prejudice. American Cyanamid appealed and Indiana Harbor cross
appealed the dismissal of the negligence count.

Issue: 1) What standard applies regarding the shipper’s liability for the
consequences of a spill of a hazardous chemical during shipment? 2)
Under what circumstances is strict liability appropriate?


An activity is deemed ultra hazardous when: the risk of harm is great;

and the harm that would ensue if the risk materialized could be great;
such could be prevented by the exercise of due care; the activity is not
a matter in common usage(highly valuable vs unavoidable risk); the
activity was inappropriate to the place in which it took place; the value
to the community of the activity is not great enough to offset its
unavoidable risks.

The Restatement (Second) of Torts Section: 520, lists six

factors to determine whether or not an activity is subject to
strict liability:
(1) the risk of harm is great; (to person, land or chattels)
(2) the harm that would ensue is great;
(3) inability to eliminate the risk with reasonable care;
(4) extent to which activity is not a matter of common usage;
(5) the activity is inappropriate for the location where it took place; and
(6) the social value of the activity is not sufficient to offset the risks.
Reasoning: The parties agree placing acrylonitrile in a rail shipment
subjects the shipper to strict liability and that the S.Ct would treat
R(2d) as the authority in determining whether the activity is
abnormally dangerous and the actor strictly liable. But negligence is
the baseline common law regime in tort liability. Precedent
determines that the storer of dangerous chemicals has more control
than the shipper, so that is little help. There is no reason given why
negligence is not adequate to remedy and deter, at reasonable cost,
the accidental spillage of acrylonitrile. It is not corrosive, or
destructive. It won’t otherwise weaken or damage a tank car’s valves.
The leak was caused by carelessness, whether American Car,
Cyanamid, Ind Harbor, Missouri, or a combination of failures to
maintain the car and prevent spillage. The relevant activity here is
transportation not manufacturing and shipping. Under products
liability law the manufacturer is not considered to be engaged in an
abnormally dangerous activity b/c the product becomes dangerous
when it is handled or used after it leaves his premises, even if the
danger is foreseeable

Holding: (Acrylonitrile is not a sufficiently abnormally dangerous

substance to impose strict liability upon the Defendant.) If Defendant is
liable for the clean-up cost, it will be under a negligence theory.
* The largest class of cases is which strict liability has been imposed
under Section 520 involves the use of dynamite and other explosives
for demolition in residential or urban areas. Acrylonitrile is both
flammable and toxic, even at low temperatures.
* No one suggests that the leak in this case was caused by the
inherent properties of acrylonitrile. It was caused by carelessness. If a
tank car is carefully maintained, the danger of an acrylonitrile spill is
negligible. Thus, there is no compelling reason to hold Defendant
responsible in strict liability.
* Plaintiff focuses on the fact that the spill occurred in a densely
populated region and could have been disastrous. Plaintiff argues that
strict liability would provide Defendant with an incentive to find
another route, one that does not go through a major town or suburb.
However, Plaintiff fails to realize that the railroad is a hub and spoke
system and the hubs are in densely populated areas.

Notes and questions:

 Note 4:
o The use and storage of dynamite warranted the imposition
of strict liability no matter how valuable the activity might
be to the community and even if there were no safer place
to store it.
Maintaining custody of animals

 Owner of livestock which intrude upon land of another is liable

for intrusion and for any harm done while upon land although
possessor exercised utmost care to prevent them from intruding.
Rest 2d Tort §504:
 Owner of wild animals are strictly liable for harm, but only for
harm caused by dangerous propensities associated w/ wild
animal of particular class OR by dangerous characteristics
that possessor knows or has reason to know
o Wild animals – unless an animal…is shown to be either
harmless by its very nature, or to belong to a class that has
become so by what may be called cultivation—it falls
within the class of animals as to which the rile is that man
who keeps one must take the responsibility of keeping it
safe. (SL APPLIED)…elephants and shit
 Owner of domestic animal will be liable to injured persons if, but
only if, the owner knows of vicious tendencies of animal. Rest 2d
Torts §509 – “every dog deserves one bite”
o P must show ownership in order to recover (Leber v. Hyatt:
hotel case -wild mongoose attack!)
 Exception: public zookeepers generally liable only
for negligence in keeping wild animals
• When zoo is privately owned/operated for
profit, strict liability may be imposed - Isaacs v.
Powell: chimp attack; reluctant to encourage
risk when contributed by those who, for profit,
harbor wild animals and increase exposure to
dangers by advertising

Abnormally dangerous activities:

Fletcher v. Rylands

Facts: ∏ was a tenant mining coal under agreement with the

landowner. ∆ was a tenant operating a cotton mill on nearby land. ∆
hired independent contractors to make a resovoir on the land and the
land rented by the ∆ had been previously mined for coal and the old
mineshafts were filled with soil. The builders of the reservoir knew
about the old mineshafts, but they did not know or suspect that the old
mineshafts were connected to the ∏’s mineshafts. When the reservoir
was filled, the water leaked through the old shafts and into the working
Issue: Is one who brings something onto his land (water) liable for the
damage caused if that thing escapes, even if that escape is not due to
his fault or the fault of any of his employees?

RULE :::: "We think that the true rule of law is, that the person who,
for his own purposes, brings on his land and collects and keeps there
anything likely to do mischief if it escapes, must keep it in at his peril,
and if he does not do so, is prima facie answerable for all the damage
which is the natural consequence of its escape." There are exceptions
if the escape was the fault of the plaintiff or an act of God.
Holding: Yes.

• ∏, who is free from all blame, must bear the loss, unless he can
establish under some theory, that ∆, also free from blame is liable
• The question is: what obligation does the law cast on a person who
lawfully brings something on his land that, though harmless if it
remains there, will naturally do mischief if it escapes
• It is undisputed that he must take care to keep what was brought on
his land from escaping and damaging his neighbors.
• The real question is whether he has absolute liability or whether he
merely has a duty to take all reasonable and prudent precautions to
keep it in
• This court thinks that absolute liability should be imposed
• The only way he can excuse himself is by saying that the escape was
caused by the fault of the complaining neighbor or an act of God
although that is not the case here
• This rule seems just, because in this case, the ∏ is not at fault and
have sustained loss due to something the ∆ brought onto the land that
was not naturally present
• There are cases in which a negligence analysis is more appropriate
• Those cases are distinguishable, because people who travel on the
highway or go near warehouses take upon themselves some known
risk of injury.
• In this case the ∏ did not take upon himself the risk of any injury.
He did not know about the reservoir and he could not have stopped the
∆ from building it anyway

Siegler v. Kuhlman

Facts: The π was 17 year old girl who was killed in the resulting
explosion when the ∆'s gasoline tanker separated from the truck's cab,
and spilled the gasoline all over the road. The ∆ was not negligent in
the hook up of the tank, it separated due to a link which parted under
metal fatigue.
Procedural Posture: The trial court found for ∆, and refused to allow
a res ipsa loquitur doctrine. The court of appeals reversed.

Judge's Rule: The transportation of gasoline in large commercial

quantities is a abnormally dangerous activity which subjects the actor
to strict liability for foreseeable damages arising from the escape of
the gasoline without the intervention of any outside force beyond the
control of the actor.

Reasoning: The court reasoned that the nature of the risk to the
general public, combined with the severity of the foreseeable damages
if the gasoline exploded, made this an abnormally dangerous activity.
They cited to Rylands. Furthermore, they stated that much of the
evidence of negligence would be destroyed in the resulting explosion,
therefore leading to problems of proof. Additionally, the owner was in a
better position to spread the loss by passing it on to customers, as well
as holding the manufacturer of the failed link accountable.

Liability for defective products

 No area of personal injury law has changed as dramatically in the

past century as the law governing liability for defective products.

 The courts….have…constructed a system of system of strict liability

—a process that continues to lend a dynamic, and controversial,
character to products liability law.

MacPherson v. Buick Motor Co.

Facts: Brief Fact Summary. The Plaintiff, MacPherson (Plaintiff),

bought a car from a retail dealer, and was injured when a defective
wheel collapsed. Plaintiff sued the Defendant, Buick Motor Co.
(Defendant), the original manufacturer of the car, on an action for
negligence. Defendant had purchased the faulty wheel from another
manufacturer and Defendant failed to inspect the wheel.

The Plaintiff brought a negligence suit against the Defendant for

injuries sustained after he was thrown from his car when the wheel
collapsed. Defendant had sold the automobile to a retail dealer, who
in turn sold it to Plaintiff. The wheel, which was sold to Defendant by
another manufacturer, was made of defective wood. Evidence
suggested that the defect could have been discovered through
reasonable inspection, but no inspection occurred.

Issue. Does Defendant owe a duty of care to anyone besides the

immediate purchaser in this case the retailer?

Rule of Law. If a product is reasonably expected to be dangerous if

negligently made and the product is known to be used by those
other than the original purchaser in the normal course of business,
a duty of care exists.

Held. Yes. Judgment affirmed.* One line of cases has suggested

that manufacturers owe a duty of care to ultimate purchasers only
when the product is inherently dangerous. Other cases have
suggested a duty of care is owed to foreseeable users if the product
is likely to cause injury if negligently made.

* In order for a duty of care to arise in relation to ultimate

purchasers, two criteria are necessary. First, the nature of the
product must be such that it is likely to place life and limb in danger
if negligently made. This knowledge of danger must be probable,
not merely possible. Second, there must be knowledge that in the
usual course of events, the danger will be shared by people other
than the buyer. This may be inferred from the nature of the
transaction and the proximity or remoteness of the relation.

* In the present case, the manufacturer of a finished product placed

this product on the market to be used without inspection by its
customers. If the manufacturer was negligent and the danger could
be foreseen, a liability will follow.

ANALYSIS: Defendant argued that only those items whose normal

function is to injure or destroy [such as poisons, explosives, etc.] are
considered imminently dangerous and therefore no duty was owed to
plaintiff. However, the court found that if a manufacturer is supplying
goods in which a danger may be foreseen if its construction is
defective, there is a cause for negligence. In this case, it was apparent
that an automobile is a good which fits this description. It could be
foreseen that if the wheels are defective, and an automobile is
traveling at fifty miles an hour, an injury would almost be certain.

The remoteness of the relationship between defendant and plaintiff

was also a factor considered by the court. Defendant claimed to owe a
duty of care only to the retailer. It should have been apparent to
defendant, however, that an automobile retailer, by nature of its
business, would not use the vehicle and would resell it to the general
public. Therefore, the court felt that it could be reasonably foreseen
by defendant that plaintiff would be injured by a defect in the wheels
and therefore a duty of care was owed.

Notes and questions:

 Note 4:

• Judge cardozo states that so long as danger is foreseeable if

the (D) is negligent, privity will not bar an action.

Escola v. Coca Cola Bottling Co. of Fresno

Facts: Plaintiff was a waitress, and one of her duties was to stock the
refrigerator with bottles of Coca-Cola. On one occasion, a bottle
exploded in Plaintiff’s hand as she was putting it into the refrigerator,
causing serious injury. Plaintiff sued Defendant, claiming that
Defendant was negligent in selling “bottles containing said beverage
which on account of excessive pressure of gas or by reason of some
defect in the bottle was dangerous.and likely to explode.”

An engineer from the bottle manufacturer (which was not sued)

testified at the trial about how bottles are tested and called these tests
“pretty near” infallible. The majority affirmed a (P)’s judgment and held
that the (P) had properly benefited from res ipsa loquitur in her
negligence action.

Used bottoles were not subject to the same test as new bottles…

The jury returned a verdict for Plaintiff. Defendant appealed.

Rule of Law. A manufacturer incurs absolute liability when an article

that he has placed on the market, knowing that it is to be used without
inspection, proves to have a defect that causes injury to humans.
Issue. Is Defendant absolutely liable for its failure to inspect a bottle of
Coca-Cola that proves to have a defect that causes injury to Plaintiff?

* Using the doctrine of res ipsa loquitur, the majority inferred

negligence upon Defendant.Concurrence. (Justice Traynor) A
manufacturer incurs absolute liability when an article that he has
placed on the market, knowing that it is to be used without inspection,
proves to have a defect that causes injury to humans.

* Irrespective of privity of contract, the manufacturer is responsible for

an injury caused by an article, to any person who comes in lawful
contact with it. Even if there is no negligence, public policy demands
that responsibility be placed where it will most effectively reduce the
hazards of life and health inherent in defective products that reach the

* Those who suffer injury from defective products are unprepared to

meet its consequences. The cost of an injury and the loss of time or
health may be an overwhelming misfortune to the person injured, and
a needless one, for the risk of injury can be insured by the manufactu

rer and distributed among the public as the cost of doing business.

* If public policy demands that a manufacturer of goods be responsible

for its quality regardless of negligence, there is no reason not to fix
that responsibility openly.

* The liability of the manufacturer to an immediate buyer injured by a

defective product follows without proof of negligence from the implied
warranty of safety attending the sale.

* Consumers will no longer need to be wary of products. The

manufacturer’s obligation to the consumer must keep pace with the
changing relationship between them.

Class 11/10/10

Manufacturing and design defects

 The most common and straightforward cases of defective products

involve the aberrational mass-produced item that has come off the
assembly line different from (and more dangerous than) the
intended product.

 The defect is generally apparent in the flawed unit by the time of

trial, and courts have concluded that SL should follow.

Design defects

Soule v. General Motors corporation

Facts: ∏’s ankles were badly injured when her GM car collided with
another vehicle. She sued asserting a defectively designed product.
GM denied a design defect and said that the force of the collision was
the sole cause of the injuries. At trial the court instructed the jury on
the consumer expectation test and the jury found for the plaintiff and
awarded her $1.65 million. Court of appeals affirmed. GM petitioned
supreme court of CA for review.

Issue: Is the use of the consumer expectation test appropriate where

the evidence does not permit an inference that the product’s
performance did not meet the minimum safety expectations of its
ordinary users?

Holding: No.

• The jury should have been instructed to use the risk-utility test.
• Consumer expectation test should be used when certain products are
commonly understood—in theses cases, ordinary knowledge may
permit an inference that the product did not perform as safely as it
• No expert evidence can be introduced in these cases
• The risk utility test is used when there is a complex product that
ordinary customers will have no real clue about the performance
• In these cases, the jury has to weigh several factors
• The jury must consider manufacturer’s evidence about competing
design considerations
• Note that unless the facts actually permit an inference that the
product’s performance did not meet the minimum safety expectations
of its ordinary users, the jury must engage in balancing of risks and
benefits required by the second prong of Barker
• Don’t have to engage in both prongs only if as a matter of law it could
be determined that the evidence would support a verdict on the
consumer expectations prong
• When it can’t be decided as a matter of law that the evidence supports
a verdict based on the consumer expectations prong, the jury must be
instructed solely on the risk utility test
• GM has many objections to the consumer expectation test: see case
page 563.
• CA does not think that consumer expectation test should be abolished
• This case involved complex questions about technical and mechanical
detail—the risk utility test is appropriate
Because of all the evidence introduced about the strengths,
shortcomings, risks, and benefits of the challenged design it is not fair
to say that the jury solely reached their decision by way of an
independent assessment of what an ordinary customer would expect—
so this error in jury instruction did not really have a bearing on the
case and is harmless

Camacho v. Honda Motor Co., LTD

Facts: A man bought a Honda motorcycle in March 1978 and got in an

accident with a car and suffered severe leg injury. He sued claiming
that the absence of crash bars to protect the legs made the product
defective under a strict liability analysis. Two mechanical engineers
said that effective leg protection devices were available in March 1978
and that the crash bars that were available from manufacturers other
than Honda would have reduced or completely avoided the injuries
that the man suffered.

Procedural History: Trial court granted summary judgment for

Honda, and court of appeals affirmed saying that the danger would
have been fully anticipated by or within the contemplation of the
ordinary user or consumer.

Issue: Did the trial court and the court of appeals apply the right test
in determining whether a product has a design defect that causes it to
be in a defective condition that is unreasonably dangerous?

Holding: No.

• This court adopts the crashworthiness doctrine that says—a motor
vehicle manufacturer may be liable in negligence or strict liability for
injuries sustained in a motor vehicle accident where a manufacturing
or design defect though not the cause of the accident, caused or
enhanced the injuries.
• Honda’s argument that motorcycle manufacturers should be exempt
from liability under the crashworthiness doctrine because serious injury
to users of that product is foreseeable must be rejected.
• The court, in determining the extent of the liability of a product
manufacturer for a defective product adopted the doctrine of strict
products liability set forth in 402A.
• Honda says that comment i shows that they are not strictly lilable,
because that comment says that the rule that the court uses only
applies when the defective condition of the product makes it
unreasonably dangerous to the user or consumer—the trial and court
of appeals applied this consumer contemplation test in dismissing the
∏’s claims.
• This court says that in Pust the court recognized that requiring a party
who seeks recovery on the basis of an alleged defective product to
establish that the product is unreasonably dangerous appropriately
places reasonable limits on the potential liability of manufacturers
• However, the court also notes that in Pust, it was held that the fact
that the dangers of a product are open and obvious does not constitute
a defense to a claim alleging that the product is unreasonably
dangerous—the approach that the trial and appeals court used is
similar to the open and obvious test that was rejected in Pust
• The court says that a test the balances the risks and benefits of a
product to determine whether the product design is unreasonably
dangerous should be used.
• Danger-Utility Test: balance the following factors:
0 the usefulness and desirability of the product—its utility to the
user and the public as a whole
1 the safety aspects of the product—the likelihood that it will
cause injury and the probable seriousness of the injury
2 the availability of a substitute product what would meet the
same need and not be as unsafe
3 the manufacturer’s ability to eliminate the unsafe character of
the product without impairing its usefulness or making it
too expensive to maintain its utility
4 the user’s ability to avoid danger by the exercise of care in the
use of the product
5 the user’s anticipated awareness of the dangers inherent in the
product and their avoidability because of general public
knowledge of the obvious condition of the product, or the
existence of suitable warnings or instructions
6 the feasibility on the part of the manufacturer of spreading the
loss by setting the price of the product or carrying liability
7 The court determined that there was not enough info to make
a determination and said that there was competing
information about certain things—the court remanded to
the trial court for a determination consistent with this
DISSENT: This justice thought that the court of appeals correctly
affirmed the trial court’s order.
This justice thinks that the test applied by the trial and court of appeals
should be used (the consumer contemplation test)
Consumer Contemplation Test:
Is the article sold dangerous to an extent beyond that which would be
contemplated by the ordinary consumer who purchases it, with the
ordinary knowledge common to the community as to its
If YES, then it is unreasonably dangerous.
This justice thinks that the test employed by the majority is more
useful in drug cases.


Safety Instructions and warnings

 A threshold issue: Common knowledge and the duty to

o The first issue in these cases is whether any words at all
are needed to address the risk question.
 Brown Forman Corp. v. Brune
• The court held that no notice was required on a
bottle of tequila to warn against the dangers of
drinking a large quantity in a short period of
• (P) was already drunk
• The were apparent even to an 18-year old
 No duty to warn about the dangers of riding
unrestrained the cargo bed of a pickup truck.
 Emery v. Federated foods
• A jury should decide whether it was common
knowledge that young children were at risk in
eating marshmallows because marshmallows
expand “when they are soaked with liquired
secretions that are present in the breathing
tubes of the lungs.

Hood. v. Ryobi America Corp.

Facts: A man bought a power saw and there were a lot of warnings in
the manual and on the saw that said to always keep the blade guards
in place. The ∏ was cutting a piece of wood and saw that the blade
guards prevented the saw blade from passing completely through the
wood, so he removed the blade guards from the saw. After he was
done cutting that wood, he continued working on other things without
butting the guards back on. In the middle of another cut, the blade flew
off the saw and toward the ∏ and partially amputated his left thumb
and lacerated his right leg. ∏ admits that he read the warnings but
says that he thought that the blade guards were only intended to
prevent the user’s clothing or fingers form contacting the blade. He
says he did not know that removing the guards could make the blades
detach from the saw. He says that the manufacturer was aware of this
though because it happened to another customer years before.

Procedural History: The trial court entered judgment for the

defendants on all claims, because they say that in the face of adequate
warnings, Hood altered the saw and caused his own injury. Hood
Issue: Did the trial court err in its determination?

Holding: No.

Rule: A manufacturer may be liable for placing a product on the

market that bears inadequate instructions and warnings or that is
defective in design.
 However, an encyclopedic warning is not required.
 A warning need only be one that is reasonable under the
 A clear and specific warning will normally be sufficient—“the
manufacturer need not warn of every mishap or source of injury
that the mind can imagine flowing from the product.
o Question…the question to answer is…whether the benefits
of a more detailed warning outweigh the costs of requiring
the change.
• A manufacturer may be liable for placing a product on the market that
bears inadequate instructions and warnings or that is defective in
• Hood says that he warnings in place were insufficiently specific—he
said that the consequences of taking the guards off should have been
• The court said that a warning need only be one that is reasonable
under the circumstances—in deciding whether a warning is adequate,
MD law asks whether the benefits of a more detailed warning outweigh
the costs
• Don’t just have to look at the monetary costs—also look a the costs it
poses to the actual warning—commentators say that the proliferation
of label detail threatens to undermine the effectiveness of warnings
• Court says that the warnings provided were sufficient—about 7
warnings in the manual and on the saw combined
• Hood says that the accident happened before, so Ryobi should have
changed warning
• The court says that this was only one incident that happened over a
decade before, and Ryobi sold thousand of these saws—so basically ∏
cannot prove that a different warning would bring any net social
The court held that the warnings provided were adequate as a matter
of law.

Notes and questions:

 Note 9:
o A product intended for adults need not be designed to be
safe for children solely because it is possible for the
product to come into a child’s hands…
o The risk that adults, for whose use the products, will allow
children to access to them, resulting in harm, must be
balanced against the product’s utility to their intended
 Note 11
o If the product is not being used for its intended purpose
then the accident must be foreseeable..

Edwards v. Basel Pharmaceuticals


(nicotine patches + smoking = cardiac arrest)
No duty to warn if Doc has to give prescription.
Mass Immunization – no doc-patient interaction.
When FDA says “warn the patient.”
Commercial advertising – when advertising directly to
consumers, all warnings must be present.

Facts: (P) brought a wrongful death action for the death of her
husband. He died of a nicotine-induced heart attack as a result of
smoking cigarettes while wearing two Habirtrol nicotine patches.

(P) theory of liability was that the warnings given in conjunction with
the Habirtrol patches were inadequate to warn her husband of the fatal
risk associated with smoking and overuse of the product.

A relatively thorough warning was given to phyiscans providing the

Habitrol patch, but the insert provided for the user did not mention the
possibility of a fatal or cardiac related reaction to a nicotine overdose,
cautioning that an “overdose might cause you to faint.”

(D) contends that the “learned intermediary doctrine” bars liability,

because the prescribing physicians were given complete warnings
regarding the use of the patches.

Rule: Our products liability law generally requires a manufacturer to

warn consumers of danger associated with the use of its product to the
extent the manufacturer knew or should have known of the danger.

• Certain products, prescription drugs among them, are

incapble of being made safe, but are of benefit to the public
despite the risk. Their benefical dissemination depnds on
adequate warnings…..the user must be adequately warned.
• Exception
o Learned intermediary doctrine
 Applicable in prescription drugs cases
• The doctrine operates as an exception
to the manufacturer’s duty to warn the
ultimate consumer, and shields
manufacturers of prescription drugs
from liability if the manufacturer
adequately warns the prescribing
physicians of the dangers of the drug.
• Reasoning: the doctor acts as a
learned intermediary between the
patient and the prescription drug
manufacturer by assessing the medical
risks in light of the patient’s needs.
• Where a product is available only on
prescription or through the services of a
physician, the physician acts as a
'learned intermediary' between the
manufacturer or seller and the patient.
It is his duty to inform himself of the
qualities and characteristics of those
products which he prescribes for or
administers to or uses on his patients,
and to exercise independent judgment,
taking into account his knowledge of
the patient as well as the product. The
patient is expected to and, it can be
presumed, does place primary reliance
upon that judgment. The physician
decides what facts should be told to the
patient. Thus, if the product is properly
labeled and carries the necessary
instructions and warnings to fully
apprize the physician of the proper
procedures for use and the dangers
involved, the manufacturer may
reasonably assume that the physician
will exercise the informed judgment
thereby gained in conjunction with his
own [933 P.2d 301] independent
learning, in the best interest of the
• Exceptions to the learned intermediary doctrine
o Two exceptions have been recognized which
operate to remove the manufacturer from behind
the shield of the learned intermediary doctrine.
 1) The first involves mass immunizations.
Mass immunizations fall outside the
contemplated realm of the learned
intermediary doctrine because there may be
no physician-patient relationship, and the
drug is not administered as a prescription
• Under these conditions individualized
attention may not be given by medical
personnel in assessing the needs of the
patient. The only warnings the patient
may receive are those from the
 2) When the Food and Drug Administration
mandates that a warning be given directly to
the consumer. By this exception several
states have held that the learned
intermediary doctrine itself does not protect
the manufacturer.
• Second exception applies to
nicotine patches…

Holding: We hold that when the FDA requires warnings be given

directly to the patient with a prescribed drug, an exception to the
“learned intermediary doctrine has occurred, and the manufacturer is
not automatically shielded from liability by properly warning the
prescribing physician.

Wyeth v. Levine
Quick court analysis and ruling….
The Supreme Court has ruled today in the Wyeth v. Levine case, which
directly addresses this issue. And pre-emption now appears to be a
dead issue, at least in my first reading:
". . .State tort suits uncover unknown drug hazards and pro-vide
incentives for drug manufacturers to disclose safety risks promptly.
They also serve a distinct compensatory function that may motivate
injured persons to come for-ward with information. . .

. . .Wyeth has not persuaded us that failure-to-warn claims like

Levine’s obstruct the federal regulation of drug labeling. Congress has
repeatedly declined to pre-empt state law, and the FDA’s recently
adopted position that state tort suits interfere with its statutory
mandate is entitled to no weight. Although we recognize that some
state-law claims might well frustrate the achievement of congressional
objectives, this is not such a case.

We conclude that it is not impossible for Wyeth to comply with its state
and federal law obligations and that Levine’s common-law claims do
not stand as an obstacle to the accomplishment of Congress’ purposes
in the FDCA. Accordingly, the judgment of the Vermont Supreme Court
is affirmed."

Facts: The plaintiff lost her hand to gangrene when she was injected
with Phenergan, an anti-nausea drug made by Wyeth Pharmaceuticals.
She won a jury verdict in Vermont, under the theory (inter alia) that
Wyeth had inadequately labeled the drug.

Phenergan’s regulatory background

The trial record shows that the FDA first approved injectable
Phenergan in 1955. In 1973 and 1976, Wyeth submitted supplemental
new drug applications, which the agency approved after proposing
labeling changes. Wyeth submitted a third supplemental application in
1981 in response to a new FDA rule governing drug labels. Over the
next 17 years, Wyeth and the FDA intermittently corresponded about
Phenergan’s label. The most notable activity occurred in 1987, when
the FDA suggested different warnings about the risk of arterial
exposure, and in 1988, when Wyeth submitted revised labeling
incorporating the proposed changes. The FDA did not respond. Instead,
in 1996, it requested from Wyeth the labeling then in use and, without
addressing Wyeth’s 1988 submission, instructed it to “[r]etain verbiage
in current label” regarding intra-arterial injection. Id., at 359. After a
few further changes to the labeling not related to intra-arterial
injection, the FDA approved Wyeth’s 1981 application in 1998,
instructing that Phenergan’s final printed label “must be identical” to
the approved package insert.

Wyeth's motion for judgment as a matter of law

Wyeth argued that this Vermont law was federally preempted because
it was in "actual conflict [with] a specific FDA order" regarding drug
labeling. The trial court rejected this argument, as did the Supreme
Court of Vermont, holding that the FDA requirements merely provide a
floor, not a ceiling, for state regulation. The Supreme Court granted

If a drug meets the labeling requirements of the FDA, does that give
rise to federal preemption of state law regarding inadequate labeling?
Wyeth presented two arguments in favor of FDA Preemption:
• 1) It is impossible for Wyeth to comply with both the state-law duties
and federal labeling regulations, since the latter forbid it from changing
its label without FDA approval.
• 2) Permitting states to require stronger warnings creates an
unacceptable “obstacle to the accomplishment and execution of the
full purposes and objectives of Congress,” because it substitutes a lay
jury’s decision about drug labeling for the expert judgment that
Congress sought to entrust with drug labeling decisions when it
created the FDA.

Questions of federal preemption "must be guided by two
cornerstones of our pre-emption jurisprudence":
• "First, 'the purpose of Congress is the ultimate touchstone in every
pre-emption case.' Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)
(internal quotation marks omitted); see Retail Clerks v. Schermerhorn,
375 U.S. 96, 103 (1963)."
• "Second, '[i]n all pre-emption cases, and particularly in those in which
Congress has " a field which the States have traditionally
occupied," ... we "start with the assumption that the historic police
powers of the States were not to be superseded by the Federal Act
unless that was the clear and manifest purpose of Congress." ' Lohr,
518 U.S., at 485 (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218
230 (1947))"
In its first argument, Wyeth is incorrect that relabeling the
drug to conform to Vermont law would necessarily have
violated federal labeling regulations.
• Although a manufacturer generally needs FDA approval
before changing a drug label, the agency's “changes being
effected” (CBE) regulation permits certain unilateral labeling
changes that improve drug safety. Wyeth’s misreading of this
regulation is based on the misunderstanding that the FDA,
rather than the manufacturer, bears primary responsibility for
drug labeling. It is a central premise of the Food, Drug, and
Cosmetic Act (FDCA) and the FDA’s regulations that the
manufacturer bears responsibility for the content of its label
at all times. Pp. 11–16.
In its second argument, Wyeth is incorrect that permitting
states to require stronger warnings would interfere with
Congress’ purpose of entrusting an expert agency with drug
labeling decisions., because it was not Congress's intent, in
writing the Food, Drug, and Cosmetic Act, to preempt state-law
failure to warn actions.
• Wyeth's argument misconstrues the intent of congress behind
the FDCA. Congress did not intend the FDCA to pre-empt
state-law failure-to-warn actions.
• Wyeth's argument also misconstrues the capacity of agencies
to preempt state law, as Wyeth's argument relies on the
preamble to a 2006 FDA regulation declaring that state-law
failure-to-warn claims threaten the FDA’s statutorily
prescribed role. Although an agency regulation with the force
of law can pre-empt conflicting state requirements, this case
involves no such regulation but merely an agency’s assertion
that state law is an obstacle to achieving its statutory
objectives. Where, as here, Congress has not authorized a
federal agency to pre-empt state law directly, the weight this
Court accords the agency’s explanation of state law’s impact
on the federal scheme depends on its thoroughness,
consistency, and persuasiveness. Cf., e.g., Skidmore v. Swift &
Co., 323 U. S. 134 . Under this standard, the FDA’s 2006
preamble does not merit deference: It is inherently suspect in
light of the FDA’s failure to offer interested parties notice or
opportunity for comment on the pre-emption question; it is at
odds with the available evidence of Congress’ purposes; and it
reverses the FDA’s own longstanding position that state law is
a complementary form of drug regulation without providing a
reasoned explanation. Geier v. American Honda Motor Co.,
529 U. S. 861 , is distinguished.

Reigel v. Medtronics


The Medical Device Amendments of 1976 (MDA) created a

scheme of federal safety oversight for medical devices
while sweeping back state oversight schemes. The statute
provides that a State shall not “establish or continue in
effect with respect to a device intended for human use any
requirement—… (1) which is different from, or in addition
to, any requirement applicable under [federal law] to the
device, and … (2) which relates to the safety or
effectiveness of the device or to any other matter included
in a requirement applicable to the device under” relevant
federal law. 21 U. S. C. §360k(a). The MDA calls for federal
oversight of medical devices that varies with the type of
device at issue. The most extensive oversight is reserved
for Class III devices that undergo the premarket approval
process. These devices may enter the market only if the
FDA reviews their design, labeling, and manufacturing
specifications and determines that those specifications
provide a reasonable assurance of safety and
effectiveness. Manufacturers may not make changes to
such devices that would affect safety or effectiveness
unless they first seek and obtain permission from the FDA.

Charles Riegel and his wife, petitioner Donna Riegel, brought suit
against respondent Medtronic after a Medtronic catheter ruptured in
Charles Riegel’s coronary artery during heart surgery. The catheter is a
Class III device that received FDA premarket approval. The Riegels
alleged that the device was designed, labeled, and manufactured in a
manner that violated New York common law. The District Court held
that the MDA pre-empted the Riegels’ claims of strict liability; breach
of implied warranty; and negligence in the design, testing, inspection,
distribution, labeling, marketing, and sale of the catheter, and their
claim of negligent manufacturing insofar as the claim was not
premised on the theory that Medtronic had violated federal law. The
Second Circuit affirmed.

During Charles Riegel's angioplasty, his surgeon used an Evergreen

Balloon Catheter to dilate his coronary artery. The catheter burst,
causing extreme complications. Riegel sued the manufacturer,
Medtronic, for negligence in the design, manufacture, and labeling of
the device. Medtronic argued that Riegel could not bring these state-
law negligence claims because they were preempted by Section
360k(a) of the Medical Device Amendments (MDA) to the Food, Drug,
and Cosmetic Act. The MDA establishes a federal regulatory process
for ensuring the safety of medical devices, and it provides that no state
may set requirements that differ from or add to the federal ones. The
District Court dismissed Riegel's claims as preempted by the MDA.

The U.S. Court of Appeals for the Second Circuit agreed that the suits
based on medical devices like the Evergreen Balloon Catheter are
preempted by the MDA. The catheter had been through the
exceptionally rigorous "premarket approval" (PMA) process, by which
federal regulators ensured that it met federal requirements.

Issue: Does Section 360k(a) of the Medical Device Amendments to the

Food, Drug, and Cosmetic Act preempt state-law claims seeking
damages for injuries caused by medical devices that received
premarket approval from the Food and Drug Administration.

Analysis: The decision means that FDA approval of a device preempts

the rights of individuals to sue for damages caused by the device and
similarly preempts the rights of states to enact more stringent
standards than required by the FDA.

Held: The MDA’s pre-emption clause bars common-law claims

challenging the safety or effectiveness of a medical device marketed in
a form that received premarket approval from the FDA.

Conclusion: The Court, in an 8-1 decision, affirmed the Second Circuit

and granted summary judgment in favor of Medtronic. The Court's
opinion, written by Justice Antonin Scalia, noted that the MDA pre-
empted state common law claims for defective devices such as this
one. Riegel's negligence and strict liability claims relating to the safety
and effectiveness of the catheter were based on New York's
requirements and were therefore "different from, or in addition to" the
federal requirements. Only Justice Ruth Bader Ginsburg dissented.

Question of liability where the claim is that there was failure to

warn even though the information about the risk that came to
pass was unknown (and not reasonably knowable) at the time
the product was distributed.

Vassallo v. Baxter Healthercare corporation

Facts: (P) claimed that silicone gel breast implants, manufactured by

a company since bought by (D), had been negligently designed,
accompanied by negligent product warnings, and that they breached
the implied of merchantability, with the consequence that she as
injured. Her husband claimed loss of consortium.

Issue: Did the trial court apply the right standard regarding the duty
to warn under the implied warranty of merchantability?

Synopsis of Rule of Law. A manufacturer will not be held liable

under an implied warranty of merchantability for failure to warn or
provide instructions about risks that were not reasonably foreseeable
at the time of sale or could not have been discovered by way of
reasonable testing prior to marketing the product.

Rule: Products liability comment m, we hereby revise our law to

state that a defendant will not be held liable under an implied warranty
of merchantability for failure to warn or provide instructions about risks
that were not reasonably foreseeable at the time of sale or could not
have been discovered by way of reasonable testing prior to marketing
the product. A manufacturer will be held to the standard of knowledge
of an expert in the appropriate field, and will remain subject to a
continuing duty to warn (at least purchasers) of risks discovered
following the sale of the product at issue. In accordance with the usual
rule governing retroactivity in this type of action, the standard just
expressed will apply to all claims on which a final judgment has not
been entered, or as to which an appeal is pending or the appeal period
has not expired, and to all claims on which an action is commenced
after the release of this opinion.

Discussion: Up until this case the duty to warn under the implied
warranty of merchantability, presumes that a manufactrer was fully
informed of all risks associated with the product at issue, regardless of
the state of the art at time of the sale, and amount to strict liability for
failure to warn of those risks. (This amounts to SL)

• Defendant wanted this jury charge:

• A manufacturer need only warn of risks known or reasonably known in
light of the generally accepted scientific knowledge available at the
time of the manufacture and distribution of the device.
• The court says that the judge’s instruction (the current standard) was
correct, but the court notes that they are part of a minority that applies
a hindsight analysis to duty to warn. Judge refused to instruct way that
∆ wanted.
• The court notes that a majority rejects the analysis that this court uses
because it is impossible to warn against unforeseeable risks arising
form foreseeable product use
The court says that a majority of states uses the principle expressed in
the Restatement (2nd) of Torts 402A comment j:

Held: The court ruled that the jury’s sustainable verdict on negligence
in failing to warn of known risks precluded the (D) from taking
advantage of the change in the law.


General Motors Corporation v. Sanchez

Facts: Sanchez’s 1990 chevy pickup had rolled backward with the
driver’s side door open pinning sanchez to the opn corral gate in the
angle between the open door and the cab of the truck. He bled to

The family, his estate, and his wife sued General motors corp and the
dealership that sold the pickup for negligence, products liability, and
gross negligence based on a defect the truck’s transmission and
transmission-control linkage.

Thoery of how accident happened….he mis-shifted into what he

thought was park, and what was actually an internmediate, “perched”
position between Park and Reverse where the transimission was in
nydraulic neutral.
• Comparative Responsibility!
• General Motors Corporation v. Sanchez, p.620
• -a plaintiff’s conduct other than the mere failure to discover or
guard against a product defect is subject to comparative
• (a consumer is not relieved of the responsibility to act
reasonably nor may a consumer fail to take reasonable
precautions regardless of a known/unknown product defect
• -in many cases, plaintiffs do not allege that the product defect
caused the entirety of their injury, but simply that it enhanced
what would otherwise have been a less serious harm
• - some jurisdictions apportion separately for the initial
crash injuries and the enhanced injuries due to the vehicle’s
• -once plaintiff proves that enhanced injuries occurred,
burden of proof on their magnitude is on the defendants
• -should enhanced injuries be reduced based on plaintiff’s
fault? Courts split
• -Daly v. GM: court recognizes comparative fault in
manufacture design cases, dissent outraged cuz juries can’t
compute these types of things

a. Comparative Responsibility as Partial Defense:

i. GM v. Sanchez TX 1999 [605]: P killed in car
accident; pickup rolled back, pinning P to gate, bled
to death; sued D for defective transmission control.
ii. Keen held that P’s negligent failure to discover or
guard against defect would not be a defense;
consumer has no duty to discover or guard against a
product defect.
iii.  reversed, reduce damages by 50%.
1. jury found P 50% liable.
2. Extends Keen: P’s conduct other than the mere
failure to discover or guard against a product
defect is subject to comparative responsibility:
i.e., other negligence by P could reduce
3. Here, P failed to use ordinary care by not
parking car.

Work related injuries

 Although workers’ tort suit against their employers are generally

barred because of the “exclusive remedy” provision of workers’
compensation statutes, workers injured on the job may sue third
parties they believe violated tort obligations toward them—as
though the compensation system did not exist.
 Moreover, the worker may accept compensation benefits and
purse the tort action simultaneously without waiving one or the
other, although as we shall see, the worker ordinarily must
return the duplicative compensation benefits after recovering in

Jones v. Ryobi, Ltd.

Facts: ∏ was employed at a business cards company and she was

injured when she was using the small printing press. She alleged
negligence and strict product liability. The press had a plastic guard
and an electric interlock switch that automatically shut off the press if
the guard was opened. However, the guard was removed, and the
interlock switch was disabled, because it saved time and this was a
common practice in the printing business. ∏ says she knew this was
dangerous but did not want to be fired for using machine correctly.

Procedural History: Trial court granted the defendants judgment as

a matter of law. ∏ appeals.

Issue: Did the trial court err in granting JMAL?

Holding: No.

The court does not affirm on the same ground that the district court
used to grant JMAL. Since the court is reviewing the grant of JMAL de
novo, the court can affirm on another ground (the district court relied
on restatement section 402A that is the consumer expectation test)
∏ must prove that she was injured as a direct result of a defect that
existed when the press was sold.
The press was modified by a third party though
When a third party’s modification makes a safe product unsafe, the
seller is relieved of liability even if the modification is foreseeable

Liriano v. Hobart Corp.

Facts. Plaintiff’s hand was caught in a meat grinder while he was

working. He was severely injured. He sued the manufacturer then
brought a third-party action against plaintiff’s employer. At the time of
sale, the machine came equipped with a safety guard, but the guard
was removed while in possession of Plaintiff’s employer. The apparatus
carried no safety warning indicating that it should be operated only
with the safety guard attached. The issue that went before the jury
was the failure to warn claim. The jury found for Plaintiff, and liability
was apportioned among all three parties.

Synopsis of Rule of Law. The duty to warn is not necessarily

obviated merely because a danger is clear.

Issue. Does a reasonable manufacturer have a duty to warn even

when the danger at issue is an obvious one?

Discussion. The Restatement (Third) of Torts deals directly with

product liability, listing three types of claim available to a putative
plaintiff: (1) manufacturing defect; (2) design defect; or a (3) defect by
reason of inadequate warnings or instructions. Liriano concerns the
third, with the majority opinion addressing the issue of “obviousness as
a matter of law” providing a shield to potential defendants whose
products could cause injury.The majority opinion in Liriano addresses
both issues of responsibility and causation, and, very importantly,
which areas are reserved for the court and which are better suited to a
jury. The court notes that the evolution of the law’s position with
regard to standards of conduct has been shifting from court-imposed
standards towards “enlarging the sphere of the jury.” As the majority
opinion states: “[j]udges should be very wary of taking the issue of
liability away from juries, even in situations where the relevant
dangers might seem obvious, and especially when the cases in
question turn on particularized facts.”In line with a clearly fact-based
approach to determining the standard of care due, and thus what
would constitute negligence, the Liriano court also applied a totality of
circumstances analysis, observing “[t]he Plaintiff was only seventeen
years old at the time of his injury and had only recently immigrated to
the United States. He had been on the job for only one week. He had
never been given instructions about how to use the meat grinder.” The
court reasoned that it would not have been such a stretch for the
defendant to have anticipated such or similar circumstances and
guarded against injury through the nominal precaution of providing a
warning label.Finally, with regard to causation, the court explained:
“[w]hen a defendant’s negligent act is deemed wrongful precisely
because it has a strong propensity to cause the type of injury that
ensued, that very causal tendency is evidence enough to establish a
prima facie case of cause-in-fact.” Thus, the court reasoned, “[e]ven if
[the state court] would consider the danger of meat grinders to be
obvious as a matter of law, that obviousness did not substitute for the
Held. The court affirmed the judgment, concluding that failure-to-warn
liability was valid and applied as a matter of law to the facts of the
present case.