Tort Outline

Monday, December 01, 2008 2:02 PM

There are two main types of torts: ○ Negligence  Failure to observe the standard of care required by law under the circumstances ○ Intentional torts 1. What is tort law designed to do? a. To maximize social wealth for everyone in society - the allocation of scarce resources to the people that value a particular resource the most b. Economic Purpose of Tort Law, to minimize the social costs of accidents a. Min. L(x,y)=p(x,y)D(x,y)+A(x)+B(y)+C 1) L(x,y) = Social cost of accidents, given x and y units of precaution by A and B 2) p=probability of accident a) Depends on many factors b) It is a function of the amount of care taken by the victim and injurer 3) D=Victim's damages if accident occurs 4) A(x)=Potential victim's precaution cost 5) B(y)=Potential injurer's precaution cost 6) C=cost of administering legal system b. So economic goal is to minimize this function (the goal of tort law is not to eliminate all accidents because this brings an extraordinary cost)

• Hammontree v. Jenner ○ Defendant had a seizure while driving and drove into plaintiff's bike shop. Plaintiff was injured and property was damaged. ○ The defendant had a history of these seizures but had complied with all of the rules of the DMV ○ The court ruled that the defendant should not be held strictly liable but that he could only be liable through a theory of ne gligence. • The traditional goal of tort law has been to restore a victim to their equivalent condition prior to the harm. (Often money damages) • The death of a defendant rarely causes the abatement of otherwise valid lawsuits ○ Beneficiaries will argue on behalf of the defendant • If a victim dies, there are two separate interests: ○ The victim's interest in her own bodily security ○ Victim's dependents' interest in continued economic su • Survival Action: ○ The estate of the deceased brings suit for any harm for which the deceased could have sued had she survived. ○ This would include medical expenses, lost wages, and pain and suffering • Wrongful Death ○ Action may be brought by and on behalf of legally designated beneficiaries, usually close family members or next of kin, to r ecover for the pecuniary loss that the death has caused.

Vicarious Liability • Respondeat superior: ○ An employer is vicariously liable for torts committed by employees if the employee was acting in the scope of their employmen t. This is a doctrine of strict liability. ○ An employee is acting in the scope of their employment if all of the following are true:  The employee must be about the employer's business and the duties assigned by the employer, as opposed to being wholly involved in a personal endeavor.  The employee's conduct must occur within the hours and ordinary spatial boundaries of employment  The employee's conduct must be motivated, at least in part, by the purpose of serving the employer's interest Generally this causes the most controversy. For example if an employee even thinks that he is serving the employer…employer can be liable ○ Holding employers strictly liable for torts committed by employees shifts the loss from the victim ○ Vicarious liability provides the following incentives for employers:  To select employees cautiously  To effectively supervise employees  To discipline employees who have committed negligence and thereby exposed the employer to liability  To consider alternatives to employee efforts such as the mechanization of particular tasks or a reduction in the overall scale of the employee's activities. ○ Christensen v. Swenson  Swenson takes a 15 minute break from work and goes to café.  Swenson is involved in an accident on the way back  Plaintiff sues Swenson and her employer, Burns, for Swenson's negligent driving  Summary judgment for defendant is denied because: □ On the first test, reasonable minds could differ because Swenson claimed Burns told her that it was good for a security guard to be seen on and around the plant.

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guard to be seen on and around the plant. □ Burns did not specifically prohibit guards from going to the nearby café □ Swenson could have had the employer's interest in mind in that she was going to get something to eat to be more productive. • Independent contractors: ○ An entity that hires an independent contractor is called a principal. ○ A principal may be held liable for the acts of its agent that are within the course and scope of the agency. ○ A principal may be liable to a third party for acts of its agent which are within the agent's apparent authority.  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.  Apparent authority will exist only where the principal creates the appearance of an agency relationship  An apparent agency exists when all of the following are present: □ The independent contractor is representing the principal □ A third party relies upon that representation  Third party has reasonable belief that contractor is in fact an agent of the principal □ A change in position by the third party in reliance on the representation  Third party would have acted differently had they known the independent contractor was not in fact an agent as they believed. 1. Under Tort Law: a. If the patient has reasonable belief that the independent contractor provides services by the employer then the employer is vicariously liable. 2. If there are certain conducts the independent contractor was hired to perform then the principal becomes an employer and will be held vicariously liable. a. To be more precise, if the principal understands there are peculiar dangers in what the independent contractor is doing, then the principal will be held liable for incidents that occur. b. If there is a probability of harm in what the contractor is doing, this can be considered to be a peculiar danger in which the principal can be held liable. ○ Roessler v. Novak  Roessler alleged that a doctor was negligent in reading medical scans  He alleged that the doctor was an agent of the hospital  The hospital said he was an independent contractor  The court ruled there were questions for a jury and that a defendant should not be granted summary judgment: □ Independent contractor worked exclusively in hospital □ The hospital assigned a doctor of the independent contractor to Roessler who originally came in seeking services from the hospital □ It is unclear whether or not the independent contractor was working with the apparent authority of the hospital. ○ Restatement (Second) of Torts states:  The employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his servants.  Exception: One who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer or by his servants, is subject to liability for physical harm caused by the negligence of the contractor in supplying such services, to the same extent as though the employer were supplying them himself or by his servants.

Negligence
The Standard of Care:
• • • • Adams v. Bullock 12 year old boy came across a railroad bridge swinging a long wire. The wire struck a trolley wire and the boy was shocked and burned Plaintiff filed negligence claim against trolley co. The court ruled that the trolley company only had a duty to adopt all reasonable precautions to minimize the resulting perils. The court held that the trolley co. took reasonable precautions and that only an extraordinary event could have caused peril.

• Defendants standard of care must be that of "ordinary caution" or what a reasonable person would do under the circumstances • "Negligence is the doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do, under circumstances similar to those shown by the evidence." • "Ordinary or reasonable care is that care which persons of ordinary prudence would use in order to avoid injury to themselves or others under circumstances similar to those shown by the evidence."
United States v. Carroll Towing Co. • The Hand Formula: ○ B<PL  If the burden of precaution is less than the expected accident cost (probability of an accident times the expected loss) than the defendant was negligent. (defendant should have taken more precaution)  If the product of the probability of the accident occurring and the magnitude of the loss that occurred exceeds the burden of precautions, then the failure to take those precautions was negligence. • The court found that the bargee was negligent by not being on the barge at the time of the accident. ○ The accident occurred in the middle of the day and during a time of war. Therefore the probability of an accident was rather high and

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the bargee's burden of precaution was less than the expected accident cost.

The Reasonable Person • Bethel v. New York city Transit Authority ○ Plaintiff was injured when a wheelchair accessible seat collapsed ○ Should common carriers be held to standard of extraordinary care? ○ The court ruled that a common carrier is held to a standard of reasonable care  The hand formula takes into account all of the circumstances of the situation. If the loss is large, the burden of precaution must be higher. If there is a very high probability of loss, the burden of precaution must be higher.  A reasonable person would take precautions up to the point where the burden equals the cost of the accident (PL). Once the burden exceeds the cost of the accident, the person is losing money.  The hand formula takes into account why sometimes a heightened amount of care is needed for example when the loss is very great, L increases and thus B must increase in order to satisfy the hand formula. • Objective standards are then applied to groups of people  "What would a reasonable blind person do in this situation?"  What would a reasonable 13 year old do?  That will determine what a specific person should have done in a situation. • Children engaged in adult activities are still held to a reasonable person standard • In the case of an emergency, a "person confronted with a sudden and unforeseeable occurrence, because of the shortness of time in which to react, should not be held to the same standard of care as someone confronted with a foreseeable occurrence."
The Roles of Judge and Jury Baltimore & Ohio Railroad Co. v. Goodman • The judge decided that no reasonable jury could have found that the plaintiff had not been negligent because he did not properly check for a train before driving across the tracks. Pokora v. Wabash Railway Co. • Cardozo decided "in default of the guide of customary conduct, what is suitable for the traveler caught in a mesh where the ordinary safeguards fail him is for the judgment of a jury." • So in this case, another person was struck by a train, and now a jury will decide what conduct is "suitable" in the situation. • "What constitutes reasonable care under the circumstances ordinarily is a question for the jury."  Not every case is for the jury, however, because defendants sometimes fulfill their duty of reasonable care as a matter of la w and, therefore, no question of negligence remains for the jury's consideration. Andrews v. United Airlines, Inc. • Passenger was injured on an airplane when luggage fell out of the above compartments • The airline has a duty of extraordinary care as a common carrier because this was before the change to a standard of reasonable care • There was a conflict between the district court who granted summary judgment for defendant and circuit court who said the case should be decided by a jury • Although most of the evidence pointed to the defendant as not negligent, there was still a small chance a jury could find the defendant did not take necessary precautions. • Basically, even a small risk of serious injury to passengers may form the basis of liability if that risk could be eliminated "consistent with the character and mode of travel and the practical operation of the business" General principle: Most of the time, a judge, even though he has his own opinion, will send the decision to the jury. (The scenario just isn't quite clear enough to grant summary judgment) Role of Custom Custom is not conclusive of due care it is just relevant. It only persuades for due care or for lack of due care. It can be used offensively to show that the defendant did not take proper due care because his conduct was below the custom standard It can be used defensively to show that the defendant's conduct was higher than the accepted standard When certain dangers have been removed by a customary practice, this custom may be proved to show that a person has fallen below the required standard. To conclude negligence, it must be shown that the customary practice is reasonable conduct for a person to follow under all the circumstances. • The basis for proof of custom and usage is if the practice reflects the judgment and experience and conduct of many. • Its relevancy and reliability is based upon how practical the precaution is in actual operation as well as the readiness with which it can be employed. • Customary practice and usage need not be universal. It suffices that a practice be fairly well defined in the same calling or business so that "the actor may be charged with knowledge of it or negligent ignorance." • • • • Trimarco v. Klein Plaintiff was badly cut when he fell through his shower's glass door Plaintiff sued landlord and plaintiff showed that the customary practice was to replace the faulty glass with stronger glass. Plaintiff presented strong evidence that this had been a practice for many years The court held that a person can be held liable for not following an accepted custom or usage if it is found that the custom or usage is reasonable. • It was for the jury to decide whether the custom practice was a reasonable undertaking for the defendant. • • • •

Role of Statutes • General rule: Violating a statute by itself is negligence. Called negligence per se

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• General rule: Violating a statute by itself is negligence. Called negligence per se a. Prove that a statute exists b. Prove that the statute was violated • Do we treat statutes the same way we treat customs? No a. A custom whether used offensively or defensively is relevant but not conclusive. b. A statute used offensively is conclusive. It does not matter whether the statute seems reasonable. A judge is there to enfor ce the law not to create it. i. Constitutional system gives the Legislature the ability to make law ii. It is held that the Legislature has the best opportunity to "get the law right" c. A statute used defensively is not always conclusive. (someone could follow a statute but still be negligent). These will fal l in the category of a custom…relevant but not conclusive. • Can a customary violation of a statute be used as grounds for violating the statute? No Martin v. Herzog Plaintiff's husband was killed when their buggy was stuck by a car traveling the opposite direction The buggy was traveling without lights The car was traveling in the middle of the road The defendants were negligent because they were violating a highway statute (traveling in middle of road) However, the plaintiff could not win because they also violated a statute (contributory negligence) by traveling without lights at night. To omit, willfully or heedlessly, the safeguards prescribed by law for the benefit of another, is to fall short of the standard of diligence to which those who live in organized society are under a duty to conform.

• • • • • •

• Violating a statute that defines a standard of care and safeguards that could never add to the danger if adhered to is negligence as a matter of law. • When a statutory rule fixes no definite standard of care which would under all circumstances tend to protect life, limb or property, then the rule is subject to limitations such that it not be observed when observance would subject one to more imminent danger. • A sudden event rendering a person incapable of following a statute or making the burden of following the statute extremely high, a person would not be required to follow the statute. • In order for application of the negligence per se doctrine the statute violated must be intended by the legislature to prevent the kind of harm that the plaintiff suffered. • Ordinances (local laws) are treated like statutes. Tedla v. Ellman • Plaintiffs were pedestrians walking on a busy highway in violation of a statute. • However, under the conditions, the violation of the statute was necessary because had the pedestrians followed that statute, they would have been in even more danger. • The court agreed that it was ok for the pedestrian to violate the statute in this instance

Proof of Negligence
Notice • Actual ○ Direct and explicit notice • Constructive ○ A reasonable manager/store should have known about the spill or dangerous condition ○ Most cases rely on the concept of constructive notice • Sometimes a plaintiff can recover on the "business practice" rule if the plaintiff can prove that a merchants method of selling a product presents a foreseeable risk that the merchant failed to protect against. • Negri v. Stop and Shop, Inc. ○ Plaintiff slipped and fell on broken jars of baby food in defendant's store ○ Plaintiff had testimony that the jars had been there for quiet some time ○ The longer the jars are on the floor, the burden of precaution on the defendant decreases (defendant had more time to clean i t up) ○ As a result, the defendant was found to have had constructive notice of the spill and was negligent in failing to clean it up . • Gordon v. American Musuem ○ Plaintiff slipped on a piece of paper on the stairs of defendant's building ○ Plaintiff could not prove that the defendant had constructive notice of the paper because he could not prove the paper had be en on the stairs for a reasonable amount of time. ○ Therefore, the burden of precaution on the defendant would have been high if the paper were only their a few minutes. ○ The defendant was not negligent.

Res ipsa loquitur • The accident speaks for itself because of the overwhelming probability that negligence took place on part of the defendant. • Justification for res ipsa ○ The defendant is best equipped to present evidence in the case; evidence that he was not negligent. ○ This argument does not hold up as well today as modern discovery practices allow of the exchange of evidence. • Bryne v. Boadle ○ Plaintiff was struck and injured by a barrel of flour that fell out of a window of the defendant's shop ○ It is the duty of the defendant to ensure that barrels of flour do not fall out of the window and therefore when an accident of this nature occurs, it is presumed that it happened through negligence. (In other words, a barrel of flour could not have fallen o ut of a window without some sort of negligence.) Plaintiff won on a theory of res ipsa loquitur

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window without some sort of negligence.) ○ Plaintiff won on a theory of res ipsa loquitur

• If there was a 75% chance defendant was negligent and a 0% chance plaintiff was negligent, the res ipsa doctrine would allow the plaintiff to recover because there is a strong probability that the defendant was negligent. • It is less clear if the defendant was say, 51% negligent. • Res ipsa loquitur provides an injured plaintiff with a common-sense inference of negligence where direct proof of negligence Is absent if: ○ The plaintiff establishes that the instrumentality causing the injury was under the exclusive control of the defendant and, ○ That the accident is one that would not, under ordinary circumstances, have occurred without negligence on the part of the on e in control. (This means that the court does not have to be 100% sure but that it probably wouldn't have happened without the defendant's negligence) ○ The plaintiff cannot contribute to the accident • Most states say that res ipsa permits an inference of negligence that if a defendant does not offer evidence the jury may return a verdict for the plaintiff. • McDougald v. Perry ○ Plaintiff was injured when the spare tire of a tractor trailer came out of its cradle and crashed through plaintiff's windshi eld ○ The court held that the tire was in the exclusive control of the defendant and that the tire could not have escaped under ord inary circumstances without negligence. ○ The court also held that the plaintiff is not required to rule out all other causes but rather all that is required is that r easonable persons can say it is more likely that there was negligence associated with the cause of the event that there was not. • Ybarra v. Spangard ○ Plaintiff was injured while unconscious during surgery. The plaintiff had been under the care of many doctors and nurses. ○ The plaintiff was unable to identify the instrumentality causing injury nor which defendants had exclusive control of it. (be cause plaintiff was unconscious) Plaintiff also obviously did not contribute to the injury. ○ The court held that a doctrine of res ipsa still applied to the defendants because there is a very high probability that as a group, they were negligent. ○ Therefore the burden of proof switched to the defendant to prove that he or she was not negligent • The court still rules that res ipsa applies to a group of defendants. (When res ipsa applies we never say that defendant automatically loses…what we're saying is that defendant will lose unless he comes forward with evidence to show he was not negligent -- the burden of proof switches to the defendant) • A defendant can be dismissed if it satisfies its burden of showing that it was not culpable

Medical Malpractice
• The focus in any medical malpractice case should be on 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. • A witness, usually a doctor, is needed to establish the proper standard of care that should have been used. ○ Although a witness is not always needed. For example, if a surgeon leaves an instrument in someone, it is pretty obvious he was negligent. • Any doctor with knowledge of or familiarity with the procedure, acquired through experience, observation, association, or education, is competent to testify concerning the requisite standard. ○ The doctor does not have to be in the same field as defendant but rather the witness (doctor) must be educated or have experi ence in the area of interest. • Custom is conclusive and defines the standard of due care because the jury or others unrelated to the medical field are not equipped to say that a widely held custom by doctors is "not good enough". Only doctors can identify the standard of care…. ○ Without a showing of custom in medical malpractice cases, the plaintiff will normally lose. • What is the relevant universe for determining custom? ○ It initially was the same or similar locality to prevent "country" doctors from being held to the same standard as a "city" d octor ○ However, in modern times, medical practices are well known nationwide. ○ Therefore, courts adopt a national locality for determining custom  The court rationalizes the national locality rule by holding that a doctor will be held to a standard of care under the particular circumstances presented to the doctor. Therefore the court is sympathetic to the differing resources of different localities but a national locality is still the "relevant universe." • Two schools of thought doctrine: ○ If there are two schools of thought as to a medical procedure, as a matter of law, if a physician uses one of the schools of thought, he cannot be held liable for using one over the other. (even if say 70% use A and 30% use B, if defendant uses B he is ok) ○ If it is customary but only used by a minority group, the defendant is still protected under the two schools of thought doctr ine. ○ At some point a school of thought may be used so infrequently that the doctrine would not apply. The group must be a "respect able group"…implying enough people to establish a standard of care. • Sheeley v. Memorial Hospital ○ The trial judge ruled that an expert witness could not testify because he wasn't in the same exact field as defendant. ○ That decision was reversed because as long as the expert witness has been educated or trained or has experience in the area o f interest, he can testify. • Expert testimony CAN be used to support a res ipsa claim ○ The opposing argument is if an expert is telling you that someone is negligent, why does the jury need to make an inference o f negligence which is the basis of a res ipsa claim • States v. Lourdes Hospital ○ Plaintiff was injured after undergoing a medical procedure ○ The issue here was whether the plaintiff could use expert testimony to show that the plaintiff probably would not have been i njured if the defendant had not been negligent The court allowed the expert to testify saying:

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innkeepers.Restatement (Second) of Torts section 314A (also jailer and prisoner. including the risks and likely outcomes of those alternat ives. • Why would we have such a doctrine? ○ Administrative difficulty. B can let its guard down because he is relying on A. Mastromonaco ○ 81 year old plaintiff fell and broke her hip. the patient is unconscious or otherwise incapable of giving consent. • In a case where a patient would still have chosen A even if had known about B and C…the patient cannot prove that the failure to provide info about B and C caused the injury because there is no causation in this scenario…(the plaintiff would have chosen A anyways. the physician should explain medically reasonable invasive and noninvasive alternatives. your not) • An affirmative duty to act only arises when a special relationship exists between the parties. negligently. Only in cases of exception do defendants sometime owe no duty to plaintiff. even if there was negligence on the part of the defendant. • Georgia law requires disclosure only of alternatives that are "generally recognized and accepted by reasonably prudent physicians. it is not al all surprising that matters entirely foreign to the general population are commonplace within a particular profession or specially trained segment of society. it wouldn't have changed the outcome if the doctor has presented B and C) • Are there ever special circumstances where the doctor is not required to inform the patient? ○ On therapeutic grounds where full disclosure would be detrimental to treatment (patient is better off not knowing) ○ When the patient is incapable of giving consent ○ When the patient says (do what you want to do. Outline Page 6 . in some scenarios the burden of precaution may be close to the expected accident cost…and if there is duty to act affirmatively…this gets difficult to sort out. This is true whether you created the peril innocently. may the physician presume that the patient. I don't want to know) ○ In an emergency situation ○ Risk is so obvious as to present a presumption of knowledge (getting ready to receive a shot) ○ Risks are inherent in common procedures and risks are low ○ When the physician does not know and has no reason to know of the risks of the treatment. ○ If you know you can be held liable for not exerting yourself to help someone else…you may not put yourself in situations wher e this may happen. ○ The doctor prescribed her bed rest and did not disclose her other options such as surgery ○ The court found that that the doctor was negligent by not informing the plaintiff of her options even though what he prescrib ed was a noninvasive. even when the chosen course is noninvasive. • "Generally. Affirmative Obligation to Act • In general there is no duty to act affirmatively to prevent harm to another. possessors of land who hold it open to the public. For example…people start going to the beach less because they fear that they might be liable for not helping som eone in danger. • Generally courts have not held that physicians must disclose experience." Informed Consent Doctrine • A doctor is required to inform patients of medical alternatives to the standard of what a reasonable patient would want to know. would consent t o lifesaving-medical treatment. and either time or circumstances do not permit the physician to obtain the consent of a family member. In most cases duty is assumed.the defendant had not been negligent ○ The court allowed the expert to testify saying:  "In an increasingly sophisticated and specialized society such as ours. or intentionally. ○ Even when the burden of precaution is small to prevent the accident (merely giving a warning) (if you drop a banana peel you r liable…if you don't drop it but see it." . • DO NOT THINK WE NEED A SPECIAL SET OF CIRCUMSTANCES TO TRIGGER DUTY. • Matthies v. and persons who have custody of another person under circumstances in which that other person is deprived of normal opportunities to protect himself."  "expert testimony to the effect that those in a specialized field of knowledge or experience consider a certain occurrence as indicative of the probable existence of negligence is at least as probative of the existence of such a probability as the common knowledge of lay persons. RATHER LOOK FOR SPECIAL CIRCUMSTANCES THAT WOULD SHOW DEFENDANT OWED NO DUTY. teacher and pupil) • What is common in all of these special relationships? ○ Think about the expectations of the parties and the expectation is that A will look after B (A will take care of B)…. ○ The nature of the relationship creates an expectation that one party does not have to be as vigilant because the other party is in charge to protect • Three instances identified by 7th circuit for affirmative duty ○ A contractual relationship between the parties to provide affirmative duty ○ When the victim is in the "custody" of the defendant there is an implicit contractual duty on defendant ○ The victim's peril was caused by the defendant (throwing the banana peel on the floor which caused the injury). if competent. ○ The court held that to obtain a patient's informed consent to one of several alternative courses of treatment. ○ "if and only if.so if A will act affirmatively to protect B." • Courts have held that a competent adult may refuse life-saving treatment." • Some courts have refused to compensate for prolongation -of-life against the patient's wishes Duty • There is no actionable tort if the defendant owed no duty to the plaintiff. • In most tort cases there is a duty. a special relationship giving rise to a duty to warn is only found on the part of common carriers.

• Often the problematic question is…where do recommendations become half truths? • The defendants feared that if they included the honest info in the letter then the plaintiff wont' get his job and he will sue the former employers for defamation. Muroc Joint Unified School District ○ Robert Gadams was hired as vice principal in the Livingston school district where he sexually assaulted the plaintiff. enjoying each other's friendship during the night out) ○ "Implicit in such a common undertaking is the understanding that one will render assistance to the other when he is in peril if he can do so without endangering himself. Moore. you have deterred anyone else from going to save the victim  It is a tort to make it less likely for a third party to render aid.  Plaintiff was not especially vulnerable and did not expect Herman to protect him • Exceptions to the general rule that there is no affirmative duty to act: ○ "If the defendant does attempt to aid [a person]. the actor is under a duty to exercise reasonabl e care to prevent such further harm. Negligent Misrepresentation (Duty to a third party) • Randi W. then a defendant owes a duty to that third party not to misrepresent facts. he has caused such bodily harm to another as to make him helpless and in danger of further harm. Also. he started to render aid and therefore will be liable for a failure to use reasonable car e. ○ To answer this the court says that the former employers would be protected from a defamation suit under a statutory privilege for non-malicious communications regarding a job applicant's qualifications. gave the doctor reason to believe that he would injure Tatiana ○ The patient killed Tatiana and plaintiff brought suit that the doctor had duty to warn. ○ The boys were chased out by some other guys and ended up badly beating one of the teenage boys ○ The court held that there was a special relationship between the two boys because they were companions in a common undertakin g (pursuing the girls. Dr. ○ Non-negligent injury: "if the actor knows or has reason to know that by his conduct. Outline Page 7 . v." • If the risk of physical injury against a third party is substantial and foreseeable. If I could do this out of the goodness of my heart then I would do it. □ The basis of this exception is that by trying to help someone you may make them worse off □ Sometimes it is difficult to determine when rendering aid actually takes place. and takes charge and control of the situation. ○ Plaintiff alleged that Gadams' former employers put in affirmative references for him despite their knowledge that Gadams had a history of sexual misconduct." ○ Non-negligent creation of risk: "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. Such a defendant will then be liable for a failure to use reasonable care for the protection of the plaintiff's interests. ○ If its not voluntary to help then forget it…I'll take the risk of no one finding out. in such a case. Herman ○ 20 year plaintiff was a guest on Herman's boat ○ Herman stopped the boat at a popular shallow area for the guests to swim ○ Plaintiff dove out of the boat and severed his spinal cord ○ Plaintiff charged that defendant had an affirmative duty to warn him of the inherent danger of the shallow water ○ The court held that Herman did not have an affirmative duty to warn plaintiff because there was no special relationship betwe en them."  What is the logic of this exception? □ If by helping someone they would be worse off than the situation they were initially in □ Another possibility is that by going out to save someone. A Psychotherapists Duty to Warn Tarasoff v. of CA ○ A patient of psychotherapist. if defendant knew or should have known of the other person's peril. ○ The defendant does not want to defend a suit using the statute. he is regarded as entering v oluntarily into a relation which is attended with responsibility. ○ We won't hold you liable for not trying to save a drowning person but we'll give you a $1000 incentive if you do." ○ So the court found that defendant had an affirmative duty to come to the aid of this friend especially because he knew or sho uld have known of his friend's peril." • Farwell v. then a 13 year old student. In other words there is a duty not to make it less likely for a third party to render aid. he is required to render reasonable care under all the circumstances. • Harper v.' is under a duty to exercise due care to prevent the risk from occurri ng even though at the time the actor had no reason to believe that his act would create such a risk. Keaton ○ Two teenage boys followed some girls into a restaurant.in danger. And if the defendants decided not to write a letter…they cou ld still be subject to defamation because this implies something negative about employee. Plaintiff charged negligent misrepresentation and fraud ○ The court found that the former employers had a duty not to misrepresent the facts because there was a foreseeable risk to a third party (the plaintiff) ○ "The writer of a letter of recommendation owes to third persons a duty not to misrepresent the facts in describing the qualif ications and character of a former employee. whether tortious or innocent."  Duty to render aid to a person in peril has been predicated upon the existence of a special relationship between the parties. Regents of the Univ. if making these misrepresentations would present a substantial. ○ To some extent the court trivializes the defendant's concern. foreseeable risk of physi cal injury to the third persons.

Would recognition of a private right of action promote the legislative purpose?  What was the Legislature's purpose when it enacted the statute?  Would a private right of action promote that purpose? 3. he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger." ○ The doctor-patient privilege is outweighed by the danger to the victim. once a therapist does in fact determine.'" After Tarasoff Cal. In an instance where a patient tells a doctor he is going to kill a random person…there can be no duty imposed on the doctor because the burden of precaution is unbearably high…there is no victim he can Identify. Thus first prong is satisfied.  A private right of action would not be consistent with the statutory scheme because the statute already had an official enforcement mechanism when it equipped the Commissioner of Education with authority to adopt rules and regulations to enforce the statute." When a statute can be enforced under a private right of action • There is a three part test in determining the availability of a private right of action: 1.' and to protect against crushing exposure to liability. the more persons injured through a tort-feasor's gross negligence. Education Law section 905(1) be enforced by a private right of action? ○ The court held that "A private right of action to enforce Education Law section 905(1) is inconsistent with the statute's leg islative scheme and therefore cannot be fairly implied. Policy Bases for Invoking no Duty: Defendant played role in creating risk but no duty exists Strauss v.92 was enacted: ○ Therapists are immune from liability for failure to warn "except when the patient has communicated to the psychotherapist a s erious threat of physical violence against a reasonably identifiable victim or victims. ○ Consolidated Edison's power system failed leaving most of New York City in darkness for 25 hours ○ Plaintiff.• • • • • The patient killed Tatiana and plaintiff brought suit that the doctor had duty to warn. the court does not recognize a duty for Outline Page 8 . Is the plaintiff one of the class for whose particular benefit the statute was enacted? 2. that a patient poses a serious danger of violence to others."  The central idea when assigning duty in these cases is to balance the defendant's duty to cover specifically foreseeable parties with containing liability to manageable levels.  Previous cases provided persuasive evidence of the Legislature's desire to immunize school districts. Civil Code s 43. or under applicable professional standards reasonably should have determined.  A private right of action would promote the legislative purpose (the risk of liability for failure to screen will encourage compliance with the statute) ○ Part 3 of the test is more difficult because public and private avenues of enforcement do not always harmonize with one anoth er. The courts expressed concerning liability to future generations (pregnant mother) ○ "if liability ran to future generations 'society as a whole would bear the cost of our placing physicians in a direct conflic t between their moral duty to patients and the proposed legal duty to those hypothetical future generations outside the immediate zone of dan ger. it is still the responsibility of courts. there was "no doubt that the infant plaintiff was a member of the class for whose particular benef it" the statute was enacted. ○ The question became. Belle Realty Co.  If Con Edison is held liable in this case. in fixing the orbit of duty. could a private right of action be an addition to administrative enforcement while being consistent with the legislative scheme?  It would not because Education Law section 905(2) gave compelling evidence of the Legislature's intent to immunize the school districts from any liability that might arise out of the scoliosis screening program. an old man. East Greenbush Central School District ○ The plaintiffs parents sued the plaintiff's school district alleging that the district was negligent in failing to examine th e minor plaintiff for scoliosis based on a statute that requires testing for the disease. the less the responsibility for injuries incurred. ○ The plaintiff's scoliosis went undetected which necessitated a costly surgery for the plaintiff. Would the creation of such a right be consistent with the legislative scheme? • Uhr v.  The Legislatures clearly contemplated administrative enforcement of the statute by giving the Commissioner power to withhold public funding from noncompliant school districts. fell on the darkened stairs of his apartments "common area" ○ Con Edison was contracted to Belle Realty to provide lighting in the common areas ○ The court held that Con Edison did not owe a duty to the plaintiff because liability for injuries in a buildings common areas should be limited by contractual relationship  "But while the absence of privity does not foreclose recognition of a duty. ○ The court agreed saying:  "in our view. however." ○ As to part 1 of the test."  Separate Opinion: Preventing liability on Con Edison in the name of public policy seems backwards because essentially. 'to limit the legal consequences of wrongs to a controllable degree. • The court is not requiring privity to establish duty they say there must be something close to privity • Although there is something close to privity between Strauss can Con Edison in the common areas. this would "violate the court's responsibility to define an orbit of duty that places controllable limits on liability. The idea here is that foreseeability is the important factor when looking at duty but that there are instances where no duty is found even when there is foreseeability." "The protective privilege ends where the public peril begins. ○ Could the statute. ○ Part 2 has two factors: □ What was the Legislature's purpose when it enacted the statute? □ Would a private right of action promote that purpose?  The Legislature was seeking to promote public health and avoid costly hospitalization.

If you finance. The person must specifically buy the instrumentality that caused the harm.  If liability was imposed on social hosts. as where the other belongs to a class which is notoriously incompetent to use the chattel safely. States have been reluctant to impose liability on social hosts. even if you never owned it." Other view: "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 that the other is likely to use it dangerously.  Because Wilson knew the operator for whom she provided funding to purchase the vehicle had no driver's license. this evidence was sufficient to make out a prima facie case of negligent entrustment to the jury. Liability of financing/cosigning: Courts generally do not impose liability on a defendant who finances or co-signs for someone who then ends up causing an accident even if the defendant knew of problems. a minor. the court tends to look at the implications and scope of imposing a duty on that defendant. (Length of time after co-signing that the accident occurs may have bearing on court's decision) Liability where instrumentality was not a car: Gun cases. had failed the driver's test many times. • • • • • • Negligent Entrustment Vince v. • Arguments: Plaintiff believes that imposing civil liability on the social host will deter minors from driving drunk." The Duties of Landowners and Occupiers Traditional View • There are three broad classes of plaintiffs: ○ Trespassers  All entrants to land are trespassers until the possessor of the land gives them permission to enter. and the salesman. who was drinking and driving. ○ Evidence indicated that Wilson knew that the operator for whom she provided funding to purchase the vehicle had no driver's l icense. just providing the funds for something. defendant will argue that criminal action is enough to deter and that over-deterrence is inefficient. a passenger in the car driven by defendant. one view: "one cannot be expected to owe a duty to the world at large to protect it against the actions of third parties. or just give money to "a loser". more money). is enough for negligent entrustment. or lacks the raining and experience necessary for such use. protects minors from their own injuries as a result of their intoxication. that is not enough for negligent entrustment. that the driver had no license and fa iled the driver's test several times.  Social hosts are ill-equipped to handle the responsibilities of their guests' alcohol consumption. • Although defendants sometimes create the risks of the plaintiff.• The court is not requiring privity to establish duty they say there must be something close to privity • Although there is something close to privity between Strauss can Con Edison in the common areas. "The key factor is that 'the negligence entrustment theory requires showing that the entrustor know or should have known some reason why entrusting the item to another was foolish or negligent.'" Now.  The Washington statute does not protect third persons injured by an intoxicated minor but. (the minor could bring a cause of action) ○ This seems counterintuitive because it allows the minor. The court does draw a line. prior to the sale of the vehicle. Where do you cross the line and enter crushing liability? Reynolds v. Possessor owes no duty of care Outline Page 9 . the court does not recognize a duty for fear of crushing liability on Con Edison. unlike commercial vendors who are in the business of serving and selling alcohol (better organization. ○ The court held that there was sufficient evidence of negligent entrustment for the question to go to a jury in the case again st Wilson. had failed the driver's test several times. was seriously injured when defendant. Ace. If the implications are that of crushing liability. ○ Evidence also showed that Wilson communicated to Ace. ○ The third party that Steven crashed into sued the aunt and uncle for negligently serving alcohol to a minor. the scope of their duties would be ill defined: ○ Is the host required to card persons at social and family gatherings? ○ Must the host hire a bartender to control and monitor the alcohol in the home so that a minor cannot obtain alcohol at a party? ○ See top of page 185 for more  The implications of social host liability would be wide sweeping and unpredictable because it would touch most of the adults in the state on a frequent basis. • The court establishes that a social host is not liable to third parties but that they are liable to 1st parties. Wilson's grandnephew crashed car ○ The plaintiff (remember who is a third party) brought a negligent entrustment suit against Wilson who had provided the fundin g for her grandnephew to purchase the vehicle. unpredictability or if the defendant's duty would be ill-defined (meaning ok now the defendant has a duty but the behavior they are supposed to take to meet this duty is puzzling) then court's tend not to impose a duty. States have pretty uniformly imposed liability on commercial hosts. Wilson ○ Plaintiff. ○ The plaintiff also added defendants Ace Auto Sales which sold the vehicle to the driver and its president Gary Gardner who wa s the salesman of the vehicle. (what if there were a million customers who wanted to sue for the negligence on the part of Con Edison for the power failure. rather. Hicks ○ Steven. consumed alcohol at his aunt's wedding and later got in a car accident. and also abused drugs and alcohol. Note: ○ An employer can be found independently negligent for hiring someone who has committed a tort. • Most courts have struggled with type of host. ○ The court held that social hosts who furnish alcohol to a minor do not owe a duty of care to third persons injured by the int oxicated minor. and also abused drugs and alcohol. to recover and not an innocent third p arty.

and sued the Kinney's ○ The court held that Mr. ○ Landlord could be liable if landlord knew of a dangerous situation that the tenant did not know of." Duty Business Owners Have to Protect Customers from Third Party Attacks • "The foreseeability of the crime risk on the defendant's property and the gravity of the risk determine the existence and the extent of the defendant's duty. on the foreseeability of the injury. Kinney shoveled the driveway. rather than on allowing the duty in a particular case to be determined by the status of the person who enters upon the property. Mr. slipped on the ice. • Another issue.  The court does keep the trespasser status so basically you have two categories: trespassers. more ice formed overnight ○ Carter came early the next morning. • What about child trespassers? ○ The landowner can be liable for the injury to a child trespasser if the landowner had an "attractive nuisance". Kinney ○ The Kinney's hosted a bible study at their home ○ It had snowed and Mr. the entrant is an invitee  The possessor owes invitees the duty to exercise reasonable care to protect them against both known dangers and those that would be revealed by inspection Status Trespasser Duty None. courts also should look at the burden on the defendant. 4. No willful. • Courts have determined foreseeability in many ways: a. Webster County ○ The court abandons the traditional licensee-invitee status and instead implements a standard of reasonable care for all lawful visitors. Kinney only had to make safe dangers actually known. except 1. A baseball flying off of your property and injuring someone.a landowner does not owe a duty to protect customers from the violent acts of third parties unless he is aware of Outline Page 10 . children must not know the dangers of it or appreciate the dangers inv olved with it. Carter was a licensee because the Kinney's did not open their house to the public generally and becau se Mr. • There was a heightened sense of duty with artificial conditions."  The possessor owes a licensee the duty to make safe dangers of which the possessor is aware ○ Invitees  Once the possessor gives the visitor reason to believe that the premises have been made safe for him. ○ An attractive nuisance must be attractive to children. or ○ The person brings some tangible benefit for the landowner Carter v. No "traps" Above plus Warn of or make safe dangers ACTUALLY known Above plus Reasonable inspection of property Exceptions 1. Carter was not bringing some sort of tangible benefit that would make him an invitee. Heins v. ○ Negligent repairs by the landlord brings about liability ○ The modern trend is that you can sue in contract and tort when a contract guarantees some sort of safety • What about natural causes where something on your land triggers an injury off your land ○ First. However. and circumstances under which the entrant entered the premises ○ The use to which the premises are put or are expected to be put ○ The reasonableness of the inspection. the landowner owed no duty ○ Now courts are changing their mind and saying that landowners can be liable for injuries occuring off their property do to a natural cause on their land. 3. and everyone else. or warning ○ The opportunity and ease of repair or correction or giving of the warning and ○ The burden on the land occupier and/or community in terms of inconvenience or cost in providing adequate protection • Adopting the new rule places the focus where it should be. He slipped and fell on snow when exiting the hospital's ma in entrance ○ He sued the hospital and the court thought it was ridiculous to classify Heins as a licensee just because he came to visit hi s daughter and not a patient and because he didn't bring a tangible benefit ○ Among the factors to be considered in evaluating whether a landowner or occupier has exercised reasonable care for the protec tion of lawful visitors will be: ○ The foreseeability or possibility of harm ○ The purpose for which the entrant entered the premises ○ The time. ○ Therefore. wanton or intentional injuries 2. liability of a landlord to tenant. • Courts have found that landlord's have a duty to protect tenants from criminal activity: ○ "his duty is to take those measures of protection which are within his power and capacity to take. Known Frequent Tolerated Trapped • Licensee Invitee • A person becomes an invitee if the landowner: ○ Extends an invitation to the public generally. and the ice that formed was an unknown danger. manner. Specific Harm Rule. ○ Heins went to visit is daughter who is an employee at a hospital." : this is basically PL…is an attack probable (P)…what is the magnitude of the loss (L)? However. 2. repair. Possessor owes no duty of care ○ Licensees  All persons who enter a 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. and which can reasonably b e expected to mitigate the risk of intruders assaulting and robbing tenants.

This is active resistance. Totality of Circumstances-Anything that could affect foreseeability will be taken into account here. These cases usually are not brought if no insurance coverage is available. ○ The court held that Sam's did not owe a duty to the plaintiff because the burden on the defendant outweighed the foreseeabili ty of an attack  Given the large number of customer's that use Sam's parking lot. the trier of fact may find that the mother did not act as a reasonable and prudent parent would have in the si tuation. i. ○ The boy was revived but suffered severe brain damage and lost his motor skills. ○ The danger of fraud is present in all lawsuits. The gun goes off in the struggle and injures a third party. of circ. the clerk has a duty. and other care ○ California & Broadbent:  Impose liability when defendant fails a test of the reasonable prudent parent in similar circumstances ○ New York: Refuse to recognize theory of negligent parental supervision. the robber threatened the clerk with the gun and the clerk leaped over the counter and engaged in a struggle with the ro bber. Parent-child injuries from negligently inflicted harm is more troublesome. The problem is what is a similar incident? ii. d.• Courts have determined foreseeability in many ways: a. ○ the court abolished parent immunity and implemented the "reasonable parent test" in which a parent can be held liable if the parent's conduct does not comport with that of a reasonable and prudent parent in a similar situation. the court uses this test which takes into account PL like tot. Specific Harm Rule.  Although this seems cruel. i. clothing. spouses can sue each other • Claims by children against parents for intentional harm are almost universally permitted. Broadbent ○ Defendant mother was watching her 2 and a half year old son swimming at the family residence when the phone rang.a duty exists if there were prior incidents similar to the incident at hand. and control. discipline. Secondly. Broadbent v. the previous robbery of only one customer in all those years indicates a very low crime risk. Is the clerk liable for the customer's injuries if they do not comply with the robber's demands? ○ The CA Supreme Court said there is a right to engage in passive resistance. Prior Similar Incidents . housing. ○ She went inside to answer the phone and when she looked outside and could not see her son. The court is essentially saying that this test takes into account PL in the hand formula. not tort law." • If a robber holds a customer and gunpoint and tells the clerk to give him money or the customer dies. the court realized that if they allowed the clerk to be liable to the customer that was injured. "a landlord is not entitled to one free assault before the failure to take appropriate security measures subjects him or her to the risk of civil liability. The opposite is actually true…a successful lawsuit when a child is severely injured could ease the financial burden on the family. and ○ Suing one's parents would interfere with parental care.  The court rejects the justifications for parent immunity: ○ The injury to the child disrupts the family tranquility more than the lawsuit. The court doesn't like this. this would just encourage robbers to take "hostages" and make demands knowing with more certainty that the clerk will obey. Some courts have held that if the cl erk engaged in active resistance. Broadbent would not be a case. Intrafamily Duties • Spouses were originally immune from actions against one another • Now. or  The act involves an exercise of ordinary parental discretion with respect to the provision of food. • Approaches to Parental Immunity ○ Goller: Retain parental immunity only where:  The negligent act involves an exercise of parental authority over the child. ○ "In this case. medical and dental services.) Outline Page 11 . ○ The justification for allowing children to sue their parents would undercut parental authority and discretion has more appeal than the other rationales. The shopowner has no duty to comply with the dem ands of a criminal even when someone else is at risk. Posecai v . ○ The father filed a negligence suit against the mother on behalf of their son. We should not deny recovery to an entire class of litigants because some litigants might try to deceive the judicial system. ○ The possibility that the parent might inherit the money recovered by the child is remote. This is a concern for the probate courts and the laws of intestate succession.  Primary justifications for parent immunity: ○ Suing one's parents would disturb domestic tranquility ○ Suing one's parents would create a danger of fraud and collusion ○ Awarding damages to the child would deplete family resources ○ Awarding damages to the child could benefit the parent if the child predeceases the parent and the parent inherits the child's damages. Balancing Test . she ran out and found him at the bottom of the pool. But also considers the burden on the defendant. if similar incidents are established how many do there have to be to be enough to trigger duty? c. • However. though recognize parental liability in other contexts (In New York. ○ Say.Wal-Mart Stores ○ Plaintiff after shopping at Sam's club was robbed at gunpoint in the parking lot ○ The court adopted the balancing test because it takes into account the foreseeability of an attack by a third party (P and L) but also considers the burden on the defendant.Instead.a landowner does not owe a duty to protect customers from the violent acts of third parties unless he is aware of specific imminent harm about to befall them b. ○ A damage award for the child will not deplete the family's financial resources.

4. Broadbent would not be a case. conduct involving the exercise of reasoned judgment. Courts have differed on harm to a fetus: some courts allow a child. the public would target the municipality for lack of protection for every crime committed. AND That party's justifiable reliance on the municipality's undertaking The solicitation of public help to find a wanted criminal creates a different situation than Riss. The court held sustained the plaintiff's claim in the case where a person helped law enforcement catch a criminal and then was killed three weeks after his life was threatened. to sue a third-party or the mother for harm sustained before birth. City of NY ○ After the death of 3-year-old Andrew.  A municipality is immune to an act of discretion.) ○ Restatement 2d: No family immunity based solely on that relationship. Municipal and State Liability Riss v. blind in one eye. When you allow a sui t against the government it presents a judicial incentive for the government to do something different to avoid liability which interferes with legislature. thus failing the "direct contact" requirement of the test  Dissenter: "To immunize the kind of alleged misconduct described by the pleading of this case would reward the government agents who hide the truth and seep wrongdoings under a rug of tort impunity. ○ Plaintiff filed suit claiming that the municipality was liable for her injuries in its failure to provide special protection to a member of the public who was repeatedly threatened with personal harm and eventually suffered dire personal injuries. balancing costs and benefits for public or political gain. there will be massive liability against the city Why in general would government have immunity? ○ Courts often grant immunity because they believe it is not their place to impose duties on governments. like New York. since their official information is usually their secret. • • • • • Outline Page 12 ." If you find duty here. but is NOT immune to ministerial negligence (that is why this case proceeded to a question of duty). Some form of direct contact between the municipality's agents and the injured party. ○ A lot of states have retained immunity for the officers of those charities. • 1. Knowledge on the part of the municipality's agents that inaction could lead to harm. In some states. In these instances.  Additionally there is no special relationship between the Medical Examiner and the plaintiff. City of NY ○ Plaintiff was twice refused police protection from a previous boyfriend who had threatened her. 2. ○ The medical examiner's conduct was an act of ministerial negligence meaning he was negligent in adhering to a governing rule. a child could not sue parent for negligent supervision and the parent is also immune from a third-party." To sustain liability against a municipality. but no liability unless conduct is "palpably unreasonab le" or is "otherwise privileged" The reasonable parent standard which sounds good in theory actually contains a lot of gray area. Government Entity • "Sovereign" immunity requires that the defendant be a "sovereign" ○ The state itself and the federal government are sovereigns • "Governmental" immunity applies when the defendant is a sovereign or any other government body ○ A city has governmental immunity but not sovereign immunity. Lauer v. parents are still immune from negligent supervision actions. and ○ Much of governmental activity is in the affirmative duty sphere: protecting the public from risk create by others.  The amount of protection that can be provided to the public is limited by the resources of the community and it is the legislatures duty to decide how those resources are deployed. ○ He made no promises or assurances to plaintiff ○ Never undertook to act on plaintiff's behalf ○ Assumed no affirmative duty upon which plaintiff might have justifiably relied ○ Plaintiff alleges no personal contact with Medical Examiner. ○ A thug hired by the boyfriend threw lye in plaintiff's face. (some states parents are immune unless parent was reckless or willful in their negligent supervision). the duty breached must be more than owed the public generally. There would be a slippery slope in that affirming duty in this case. ○ The court held that the municipality owed no duty to the plaintiff to protect her from her injuries  If the court ruled in favor of the plaintiff this would be going against the fundamental principle of no affirmative duty to act. In such instances."  The plaintiff cannot point to a duty owed to him by the Office of the Chief Medical Examiner so his negligence claim must fail. • Why does tort liability effect public entities differently? ○ Governmental officials make many policy choices. The state has sovereign immunity and governmental immunity. and with litt le vision in the other. 3. This is not so today. ○ Plaintiff sued city for negligent infliction of emotional distress ○ The court held that the medical examiner (the city) owed no duty to the plaintiff  "we have consistently refused to impose liability for a municipality in performing a public function absent "a duty to use due care for the benefit of particular persons or classes of persons. Cuffy Factors: No Immunity When "Special Relationship" Assumption by the municipality through promises or action of an affirmative duty to act on behalf of the party who was injured. leaving her permanently scarred. "Violation of a statute resulting in injury gives rise to a tort action only if the intent of the statute is to protect an individual against an invasion of property or personal interest. You cannot enforce personal liability on individ uals of charity but you can on the charity itself. a NY City Medical examiner performed an autopsy and concluded the death was a homicide ○ They began to investigate father. The medical examiner performed another autopsy and realized it was not a homicide but fail ed to notify law enforcement. after birth. truly responsible public employees have little to no incentive to own up to wrongdoings.• • • • York. Some court's have rejected this: (defendant drove negligent and hurt fetus…baby could not sue because mother owed no duty) Just a note: at one time charities were immune.

the duty breached must be more than owed to the public generally meaningthere must be a special relationship between plaintiff and municipality that would indicate a duty. Whether any "federal statute. if a private person. or economic judgment.fall within the protection of the statute. or political goals" . ○ He sued Scott and the Park Service alleging that the Service was negligent "in failing to appropriately and adequately mainta in the roadway…and in failing to place and maintain appropriate and adequate warning signs along the road. Moreover. Friedman v. It is true that the placement of signs involves judgments of engineering and aesthetic concerns but these judgments do not involve difficult policy decisions such as balancing the preservation of the environment against the blight of excessive signs. ○ An opposing vehicle. Non-Physical Harm Emotional Harm Sources of Emotional Distress: • Fear of sustaining physical injury ○ Injury imminent ○ Injury distant (in time) • Embarrassment over one's own physical injury • Distress over physical injury to another Outline Page 13 . Governed by the Cuffy Factors above. "Such decisions require the agency to establish priorities for the accomplishment of its policy objectives by balancing the objectives sought to be obtained against such practical considerations as staffing and funding. the government's determination as to the appropriate course of action would require balancing factors such as the road's overall purpose. what will not support: ○ If the city does an adequate study.. However there are exceptions:  governmental body may be held liable when it does not perform a study or if its study of a traffic condition is plainly inadequate or there is no reasonable basis for its traffic plan  Once the State is made aware of a dangerous traffic condition it must undertake reasonable study thereof with an eye toward alleviating the danger. Scott ○ On a rainy evening in 1987." b. As along as a reasonable study is performed and action is taken. • In 1946. the discretionary function exception is not applicable. after the State implements a traffic plan it is under a continuing duty to review its plan in the light of its actual operation. ○ 1346(b): The district courts have exclusive jurisdiction of civil actions on claims against the U.  It is not enough for liability that a state or municipal entity would be liable for the negligence of a state or local inspector.with legislature. you do not owe a duty to any specific individual."  The Manual on Uniform Traffic control Devices offers guidance for the installation of signs and therefore the reliance of the Park Service on the Manual involves the exercise of discretion. • In sum.  On the second test however. The second test is whether the decisions that require choice are "susceptible to policy judgment" and involve an exercise of "political. economic. driven by Scott. the safety of drivers and other park visitors.  "once a decision has been reached to go forward with a plan intended to remedy a dangerous condition. the city is not liable…. and the inconvenience of repairs as compared to the risk of safety hazards. liability may result from a failure to effectuate the plan within a reasonable period of time. the discretion regarding where and what type of signs to post is not the kind of discretion protected by the discretionary function exception. then the employee had no "choice" and the only issue is whether the employee followed the directive. and political factors as they carry out their official duties • The Supreme Court has established a two step test to determine whether an action is exempt from suit under the discretionary function exemption: a. These balances are apparent because the 1988 study placed maintenance on the section of the road in question in the middle of a priority list of work. (the defendant is not of a "private person" entity)  The U."  Applying the second test." "Only discretionary actions of greater significance . "Becau se no choice is involved where a "specific prescription" exists. Cope was driving on a two -lane road through Rock Creek Park. regulation." • Legal Constraints that eliminate choice: ○ Constitution ○ Statute ○ Administrative rule or order ○ Administrative practice or policy Cope v. rounded a curve. could be liable if a private employer could be held liable in "like circumstances" • The exception to 1346(b) is the "discretionary function" exception. a plaintiff cannot challenge the study with their own expert. (basically the government is immune if acting with "discretion" ○ this exception was designed to prevent the courts from "second guessing" the way that government officials choose to balance economic. ○ Cope alleged he suffered neck and back injuries. the allocation of funds among significant project demands." ○ Above are theories that support liability.S.S.S.those grounded in "social. slid into Cope's lane and hit Cope's car. or policy specifically prescribes a course of action for an employee to follow. State of New York ○ In general if you owe a duty to everyone. for money damages for in jury caused by the negligent or wrongful act or omission of any federal government employee acting within the scope of his employment und er circumstances where the U. would be held liable in accordance with the law of the place where the act or omission occurred. to sustain liability against a municipality. social. social. the United States waived its general tort immunity." I f a specific directive exists..

The court said that a lack of physical impact does not take away emotional distress but this case differs from others because there is no threat of immediate traumatic injury. however exposure to a substance that may lead to disease in the future without any symptoms does not count as a physical impact. In this case. ○ However. ○ There is a legitimate reason to limit recovery in cases where physical injury occurred because if no physical injury occurred . the plainti ff began having nightmares. The problem here is what qualifies as physical manifestation? (heart attack is a physical manifestation. not eating for 20 days is a physical manifestation but a large gray area still exists) Distress over mishandling a loved one's corpse (Negligent Infliction of Emotional Distress) Gammon v. they make be fake. Bush ○ Falzone claims that the defendant's negligently driven automobile came so close to her as to put her in fear for her safety a nd as a direct result. ○ After finding an amputated limb in a bag that was supposed to contain the personal effects of plaintiff's father. physical manifestations may allow for recovery. recovery for emotional distress requires immediate traumatic harm from a threatened physical contact  Second. common law precedent has denied recovery to plaintiffs that are disease and symptom free. or other economic harm • Distress over injury to one's reputation (distinct from defamation) • Originally courts would only recognize emotional harms due to physical injury from a physical impact. Injury imminent Falzone v.this is hard to prove…she may be faking. it would be easier to "fake" the injury. unable to do certain things ou t of fear…. he would often cover himself with insulation dust exposing him to asbe stos. Reasons: ○ Whether someone actually suffers emotional distress is sometimes hard to prove ○ The courts feared trivial suits claiming emotional distress. 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. or emotional harm is foreseeable • Suppose the plaintiff said she was scared to death from the incident but did not suffer any physical injury from it. Osteopathic Hospital ○ Plaintiff's father died in defendant hospital and the plaintiff asked defendant funeral home to make the arrangements. allowing recovery here would threaten "unlimited and unpredictable liability. ○ Buckley sued Metro-North under the FELA statute that permits a railroad worker to recover for an injury resulting from his employer's negligence. • The court relies on a "zone of physical danger" • Most jurisdiction fall under the recovery when physical impact. the plaintiff had no signs or symptoms of disease. ○ The court found that she could recover:  The court held that "where negligence causes fright from a reasonable fear of immediate personal injury." • So the court said that she could recover even if there was no physical impact but the stipulation is that the emotional distress must have caused some sort of physical injury.  Third. The emotional harms may not be serious and secondly. is it fair to those who have legitimate emotional distress? • • • • Injury Distant (in time) Metro-North Commuter RR v. The court may allow recovery if plaintiff immediately contracted a disease that may lead to a worse disease in the future. she became ill and required medical attention. ○ While removing insulation from pipes on a daily basis. For example a plaintiff that wants to recover for lost sleep. his personality was affected and his relationship with his wife and children deteriorated. ○ Buckley attended an "asbestos awareness" class and feared that he would develop cancer. You could make an argument either way. in danger zone. job loss.  The court held that he could not recover for emotional distress until he manifested symptoms of a disease ○ The court relied on Gottshall:  First. "Physical impact" does not encompass every form of "physical contact. Judges and juries would have difficulty separating valid claims from invalid claims. and there would be a potential "flood" of trivial claims.• Embarrassment over one's own physical injury • Distress over physical injury to another ○ Past injury complete ○ Injury imminent or contemporaneous ○ Injury in distant future ○ Misperceived injury (erroneous notification of death) • Distress over mishandling loved one's corpse • Distress over property damage.  Fourth are policy issues. which fright is adequately demonstrated to have resulted in substantial bodily injury or sickness. ○ He sought damages for emotional distress and to cover the cost of future medical checkups. Plaintiff may also recover from a physical impact. In this case she became ill and required medical attention. ○ Periodic medical check-ups revealed no evidence of cancer or any other asbestos -related disease. Buckley ○ Buckley was a pipefitter for the Metro-North Railroad Co. physical injury occurred from emotional distress. Could she recover? ○ The court does not answer this question." It does not include a contact that amounts to no more than an exposure to a substance that poses some future risk of disease and which contact causes emotional distress only because the worker learns that he may become ill after a substantial period of time. ○ Plaintiff brought suit for negligent infliction of severe emotional distress Outline Page 14 . So plaintiff may recover if physical injury results from emotional distress. In Falzone.

the child was missing and apparently had been abducted that day. ○ After the mother was discharged."  The court said that the hospital only has a duty to the child. however. ○ The son died while still trapped ○ The mother filed suit against defendants for mental and emotional distress. Guy.  So essentially this case eliminates any legal incentive for hospitals to ensure safety against abduction. ○ The plaintiff "watched as her son moaned. or very elderly. ○ Allowing recovery here would "invite open-ended liability for indirect emotional injury suffered by families in every instance where the very young. ○ Courts have both allowed and rejected loss of consortium claims of parents for the injuries or death of their children Economic Harm Duty of Care: Accountants to Non-Clients • Foreseeability test: If it is foreseeable that a nonclient would rely on the work (reports) of the accountant. courts do not allow emotional distress actions for breaches of contract Problems this causes: ○ So what would be the hospitals incentive to make sure babies are not abducted?  The hospital owes a duty to the child but it is difficult to identify an injury the child suffered. Jamaica Hospital ○ Plaintiffs' daughter. ○ Some courts may allow recovery if house is damaged. ○ When the mother visited a week later." ○ Observation of the death or injury at the scene of the accident and  "as physical proximity between plaintiff and the scene of the accident becomes closer. ○ One afternoon. most courts treat pets as property and therefore would not allow emotional distress recovery for injury or death to pets ○ Several states. The mother did have a contractual relationship with the hospital but generally. the child was kept for further treatment. ○ HI and CA have been more permissive for recovery in these situations In general. cried out and flailed his arms" for 4 and a half hours while police tried to free h im. Guy became trapped in the building's elevator between its outer door and the wall of the elevator shaft. So there is a breach of contract…but courts have generally refused to grant emotional damages in a contract action." • The court throws out the previous standards and creates a new standard of foreseeability • Could it be foreseen that a reasonable person would suffer emotional distress under the circumstances? That is the new limitation which is more broad than the previous requirements. • • • • • • Johnson v. do and have allowed recovery Spouses can recover for negligent interference of consortium (loss of consortium) What about emotional distress from loss of consortium? ○ Courts generally do not allow a child to recover emotional damage for loss of consortium unless parent dies.  The court held that the plaintiff could prove a case of negligent infliction of emotional distress if she proved the following 4 elements: ○ The death or serious physical injury of another caused by defendant's negligence ○ A marital or intimate familial relationship between plaintiff and the injured person  "embodies the judgment that only the most profound emotional interests should receive vindication for their negligent injury. ○ Plaintiff's brought suit for the emotional distress brought about by defendant's negligence. but the foreseeability test isn't enough in this situation because the hospital owes no duty to the parents (who are third party representatives).  The only real incentive here is a market incentive. Kawana.Plaintiff brought suit for negligent infliction of severe emotional distress  The court held that the man had a case for negligently inflicted severe emotional distress ○ "A jury could conclude that the hospital and mortician reasonably should have foreseen that members of Gammon's family would be vulnerable to emotional shock at finding a severed leg in what was supposed to be the decedent's personal effects. What about emotional distress associated with property damage? ○ Most courts do not allow emotional harm from damage to property. the foreseeable likelihood that plaintiff will suffer emotional distress from apprehending the physical harm of another increases" ○ Resulting severe emotional distress  "a cause of action for emotional distress would require the perception of death or serious physical injury. The zone of danger rule does not really apply in cases like Gammon. was born in defendant hospital. somewhere there will be plaintiffs arguing emotional distress from an accident. Distress over a physical injury to another Portee v. then the accountant is liable ○ Unpopular • Near-Privity: The accountant was must a near-privity relationship with the nonclient Pretty restrictive but somewhat popular Outline Page 15 .  The court acknowledged that it is foreseeable that the parents would experience severe distress from an incident such as this." • Suppose the child died but the mother was grocery shopping and did not witness the accident: ○ A person would still suffer emotional distress so is this an arbitrary restriction?  Its not an arbitrary restriction because allowing recovery in that situation would be too much…any time someone is seriously injured or killed there will be a rippled effect. • The foreseeability rule does make sense in situations without risk of imminent physical injury. Jaffee ○ Plaintiff and her 7 year old son.  The hospital is contractually obligated to parents when the mother goes to give birth. lived in an apartment owned by defendant Jaffee. or incapacitated persons experience negligent care or treatment.

parents or child. v. Healthy Baby: Limited -recovery rule ○ Medical expenses of ineffective sterilization procedure. which is designed to enforce expectations created by agreement. That the plaintiff must have suffered some property damage or personal injury to recover in tort • What is the purpose of the rule? □ It is difficult to determine how much economic loss would be suffered and therefore is difficult to know how much precaution to take. reason parents sought to avoid pregnancy ." • All you need however. (also filed public nuisance claim not as important in t he opinion)  The court held that a plaintiff cannot recover for purely economic loss. and the law of torts. □ Plaintiff then purchased about 35% of Gulf's outstanding shares and the corporation ended up filing for bankruptcy about two years later. Reasons to Avoid Pregnancy • Economic burden • Fear that child would be deformed ("eugenic") • Concern for mother's health ("therapeutic") • • • • • There are three general remedies as compensation for negligent procedures resulting in unwanted pregnancies: □ Wrongful Conception. as well as actual knowledge of the particular financ ial transaction that such information is designed to influence. □ "the economic los rule marks the fundamental boundary between the law of contracts.economic or other. which is designed to protect citizens and their property by imposing a duty of re asonable care on others. Kind of negligence alleged . Condition of the child . is a personal injury or property damage to accompany economic damage and then you can recover for both. 532 Madison Ave. □ I would imagine the administrative costs of figuring out what the loss should be would support this rule as well. Gourmet Foods v. 2 blocks away. or any limited group of which the plaintiff was a member. or □ The accountant had no knowledge of the transaction his report would influence. and □ Through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction. □ New York City officials closed blocks from 42nd to 57th Street as wells as side streets between Fifth and Park. would rely on the audit report in connection with an investment in Gulf. Outline Page 16 . alleged on behalf of businesses be tween 42nd and 57 street that defendants' negligence led to loss of income. ○ Medical and hospital costs of pregnancy Expense of a subsequent sterilization procedure. and If applicable. mortar and other material s fells onto Madison Avenue at 55th Street which is a prime commercial location. ○ The defendant did not intend to influence the transaction entered into by the plaintiff and Gulf nor knew that gulf intended to influence the transaction by use of the audit report. or a limited potential group of nonclients. partially collapsed during a construction project and bricks. □ Unless you have some idea of what the magnitude of loss is you can't be expected to take the optimal amount of precaution. would rely on the accountants w ork. KPMG Peat Marwich LLP □ The defendant prepared an auditors' report of the 1990 financial statements of Gulf Resources & Chemical Corporation and the report was included in Gulf's annual report. Wrongful Birth & Wrongful Life Wrongful Life Wrongful Birth Child Disabled Parent(s) Disabled Wrongful Conception/Pregnancy Parent(s) Usually Healthy Relevant Variables Identity of the plaintiff . Specifically that the report materially misrepresented the financial condition of Gulf. Finlandia Center □ A section of wall of 540 Madison Ave. □ The plaintiff filed a complaint against defendant seeking damages and costs incurred as a result of its alleged reliance on t he auditors' report.  The court held that the accountant breached no duty owed to the non-client ○ The facts failed to show that the defendant knew or intended that the plaintiff.impaired or healthy. ○ The defendant did not prepare the report for the plaintiff' s benefit. □ Gourmet Foods that was a half block south of 540 and 5th Ave.• Near-Privity: The accountant was must a near-privity relationship with the nonclient ○ Pretty restrictive but somewhat popular • Second Restatement: One who supplies false information for the guidance of others in their business transactions is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information if he fails to exercise reasonable care or competence in obtaining or communicating the information.  More Popular Nycal Corp. an accountant cannot be liable to a nonclient when: □ The accountant had no knowledge that a nonclient.failure to prevent pregnancy or failure to diagnose abnormality. □ Plaintiff entered into discussions with Gulf about buying a large block of Gulf shares and Gulf provided the plaintiff with a copy of the 1990 annual report. This liability is limited to loss suffered: □ By the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or kno ws that the recipient intends to supply it. • In sum. □ The court interprets this as liability to third parties who can demonstrate "actual knowledge on the part of accountants of t he limited group of potential third parties that will rely upon the report. The economic loss rule was designed to prevent disproportionate liability and allow the parties to allocate risk by contract. Chocolatiere.

the parents may recover for emotional distress Courts have generally not recognized a wrongful life action brought by a disabled child. ○ The court adopted the limited recovery rule for the plaintiffs ○ "Their decision to forgo the option of releasing the child for adoption constitutes most persuasive evidence that the parents consider the benefit of retaining the child to outweigh the economic costs of child rearing. In order to be a proximate cause. offset b y economic benefits from the government or other sources. But not all actual causes are proximate. but not the costs of raising a normal child. "the question is whether. and postnatal care. ○ Lost wages. If the child is mentally or physically handicapped. is it better to be non-existent than be alive with a handicap or disability? ○ Courts do not want to make that distinction. Diane suffered severe physical pain and required additio nal invasive medical treatment. the systems became intermingled near the Brown Street Bridge causing contamination of the Hemlock water. ○ The idea here is. A plaintiff does not have to disprove all other theories of causation in order to be sufficient. the in jury occurred under circumstances that allow the defendant to argue plausibly against being required to compensate the plaintiff f or that harm." Actual Causation (Cause in Fact) Stubbs v. If so can proceed to question of proximate cause. that they have suffered mental anguish and distress. ○ They would not be liable because absent negligence. the same harm would have occurred. cause must be an actual cause. that they have lost wages and earning capaci ty. The court held that the plaintiff provided sufficient evidence to reasonably infer the cause of the plaintiff's illness was due to the defendant's negligence. ○ Due to the city's negligence in May 1910. • A plaintiff only has to prove causation to a reasonable certainty. ○ The Emersons also allege that as a result of defendant's negligence. Emerson v. delivery. Here. the Emersons decided for financial reasons to limit their family to one child ○ Diane Emerson underwent a surgical tubal ligation performed by defendant but became pregnant despite the operation. Actual (factual) a. There is no offset from benefit. Magendantz ○ After the birth of their first child. Did the defendant's conduct ACTUALLY cause the plaintiff's injury? b. i. either economic or emotional. ○ The husband and wife sued alleging that the birth was caused by defendant's negligent performance of the tubal ligation proce dure. ○ Sometimes for loss of consortium to spouse arising out of unwanted pregnancy. CAUSATION 5. then the paren ts can recover all costs. b. ○ He drank the water daily ○ The consumption of contaminated water is a very frequent cause of typhoid fever. Unhealthy child: No Notice ○ If the defendant had neither actual nor constructive notice of the parent's reasonable expectation of a disabled child. Unhealthy child: Notice ○ If the defendant had actual or constructive notice of the parent's reasonable expectation of a disabled child. ○ Sometimes emotional distress arising our of unwanted pregnancy. • Two components of Actual Causation: ○ But For component ○ Causal link component  It must be the case that before anything takes place. □ Full recovery with benefit offset rule ○ Plaintiff can recover all of the damages available under the limited recovery rule plus the cost of child rearing. Outline Page 17 . • Suppose a reservoir kept their levies in a negligent fashion but then a rainstorm of epic proportion came through and floodedthe reservoir and would have caused flooding regardless of negligence. then the parents can recover the extraordinary medical and educational expenses. □ Full recovery without benefit offset rule ○ The plaintiff can recover all of the damages available under the limited recovery rule plus the cost of child rearing. 6. City of Rochester ○ The City of Rochester supplied Hemlock system water for drinking and Holly system water for firefighting. that they have incurred an obligation to expend monetary resources for the medical care and maintenance of child.• • • • ○ Expense of a subsequent sterilization procedure. ○ The plaintiff contracted typhoid fever and attributed the illness to the negligence of the city. ○ He did not leave the area during the summer of the water incident." ○ No recovery would be allowable for emotional distress arising out of the birth of a healthy child. and ○ medical expenses for prenatal care. granting that defendant's negligence has been an actual cause of the plaintiff's harm. but the court must offset the benefits. engaging in negligence increases the probability that an action takes place. ○ Medical testimonies were presented indicating his illness was caused by drinking contaminated water. derived by the parents from having a healthy child. ○ The plaintiff was employed in the immediate locality where the water was contaminated. Proximate a. ○ Near 60 individuals who drank the water and had suffered from typhoid fever in that neighborhood appeared as witnesses on behalf of plaintiff.

• Causation and the Hand Formula: ○ B<PL ---> Negligence ○ P = Pn-Pc Pn is probability with negligence." • Side note: ○ Four guiding factors presented by the Supreme Court in order to make a preliminary assessment of expert testimony: ○ Whether the theory can be (and has been) tested according to the scientific method. However. it may be a number of years later where evidence has disappeared and it is more difficult for both parties to prove their sides. ○ Whether the theory or technique has been subjected to peer review and publication.5). ○ Dr.50>Pc Defendant Liable For: Zero L .5>Pc.80 ○ Recovery: (Pn-Pc)L=0.2L Lost Opportunity: Alternative approaches ○ Traditional: Allow full recovery if and only if there is more than a 50% probability that plaintiff would have avoided harm a bsent defendant's negligence (if Pn>.50>Pn>Pc (normally enhanced risk) (Pn-Pc)L or This is called proportionate recovery Pn>Pc> (or equal to) . and ○ Whether the theory is generally accepted. Dr. ○ Permit full recovery before onset of condition. • "if a negligent act was deemed wrongful because that act increased the chances that a particular type of accident would occur. the known or potential rate of error. ○ In the case of a particular scientific technique. but the probability of loss given due care is greater tha n 50% (Pc>. the extent of the lost opportunity." Alberts v. • • • • Lost Opportunity Lost Opportunity: Proportionate Recovery Suppose ○ Pn=1 ○ Pc=. • If one is missing. He also ruled out all previously known drug-related causes of PPH. the plaintiff must suffer death or debilitating injury. Before a plaintiff can get a "lost chance" award. Tackett testified that hormonal changes due to the overdose of PPH likely caused a dysfunction of the endothelium leading to PPH. 1992. this was enough to support a finding by the trier of fact that the negligent behavior caused the harm.5)  Courts would do this because if they wait until injury actually occurs. Schultz with a condition known as "rest pain" in which his right leg hurt in the ab sence of any activity. if negligent exposure increases the risk of th e actual harm. United States ○ Plaintiff was prescribed double the maximum dosage of a drug ○ Plaintiff was later diagnosed with PPH. Pc is probability with due care ○ B<(Pn-Pc)L ----> Liable (1) ○ B<PnL-PcL -----> Liable (2) Where: Pn=Pc Pn>. ○ Deny all recovery for the loss itself unless and until it materializes. you don't have actual cause. Before the overdose could be shown to be a substantial factor. but-for causation is required. We need to prove that the happening of A increases the probability that B happened. Schultz did not order an arteriogram and he did not conduct any other tests. a substantial factor test has been employed and but-for abandoned because but-for runs into problems with multiple causes. allow recovery in proportion to the increased probability of the harm. • The Zuchowicz court used the "substantial factor" test. Zuchowicz v. and a mishap of that very sort did happen. but only if the condition is likely to occur (Pn>.50 (normally lost opportunity)  The example where the negligent speeding driver's car hit by a falling tree: □ The probability of the tree falling is the same whether there was negligent or not so that would fall under Pn=Pc • Enhanced Risk: Alternative Approaches (Probabilistic recovery for harm in the future) ○ Permit proportionate recovery at the time of exposure. Dee Alberts went to Dr. or in other words. with multiple causes. "Evidence of the physical progression of the patient's disease during a negligent delay in diagnosis or treatment may be sufficient to establish that the plaintiff was "injured" by the delay. a fatal disease ○ Plaintiff ultimately died ○ Husband sued and alleged that doctors had negligently instructed his wife to take the overdoses which led to PPH and her deat h ○ Doctors admitted negligence but challenged causation ○ Plaintiff offered two expert testimonies: ○ Dr. but before actual harm. Richard Matthay testified that the progression and timing of plaintiff's disease in relation to her overdose supported a finding of drug-induced PPH. plaintiff may recover L) ○ Relaxed Causation: Allow full recovery for physical harms suffered if the defendant's negligence increased the risk of such h arm ○ Proportional: if defendant's negligence increased the risk of loss. ○ The court concluded that the expert testimony satisfied a but for cause and the causal link necessary to show actual causati on. So they would allow recovery before injury materializes. Outline Page 18 . Schultz ○ On July 14.

99. bypass surgery was attempted but failed and the leg w as then amputated. Summers v. Hutton testified that bypass surgery would have had a strong chance of being successful. b. ○ Several procedures were then unsuccessfully performed and on July 28th. Tice ○ Plaintiff and defendants Tice and Simonson were hunting quail when both defendants fired in plaintiff's direction. ○ Both defendants were using the same gauge shotgun and same size pellets. Reddy did not occur until July 27th where upon seeing Mr. Loss suffered must be severe Multiple Defendants Multiple Defendants: Common-Law Doctrines • Joint and several liability: Two (or more) defendants may be sued together or separately. ○ All tortfeasors are jointly and severally liable • Successive: One tortfeasor aggravates an injury inflicted by the other. The defendant bears the burden of proof of the non-party's liability. The plaintiff cannot prove that but for the negligence he would have kept his leg. Therefore. to a reasonable degree of medical probability that timely and proper medical intervention would have saved Dee's leg. Alberts to the hospital and ordered an arteriogram. Schultz did not order an arteriogram and he did not conduct any other tests. that was under the stipulation that Dee's leg exhibit "a good saphenous vein" but no evidence could be provided as to any suitable veins in Dee's leg because of incomplete medical records. Alberts' requested referral to Dr. Some Limitations on Lost Chance proportionate Recovery Opportunity lost must be "substantial" ○ For example if Pn is 1 and Pc is ."  There was no testimony as to what should have been done  and when Dr. Hutton: a. this is not a large enough increase in risk to allow recovery. ○ The injury may be caused:  By the tortfeasors acting in concert. Recent changes: • Contribution often allowed ○ So if plaintiff decides it is easier to recover everything from defendant 1 even though defendant 2 is just as responsible. • R3.• • • • • ○ Dr. ○ "The Alberts cannot demonstrate that there was a window of time during which measures could have been taken to foreclose the need to amputate Dee's leg. and the defendant seeking to do so provides adequate notice to the other parties. The problem with providing the traditional but-for cause does not work here. ○ Plaintiff sued doctors for lost opportunity to save his leg and offered expert testimony: i. some courts have adopted a proportionate recovery for lost opportunity. Plaintiff may recover the full amount of damages against either one . ○ Mr. respondeat superior) Kinds of Joint Torts • Simultaneous: victim suffers a single or indivisible injury as result of tortious activity of two or more other persons. Albert. ○ If the first tortfeasor had used due care the entire injury to the plaintiff would have been avoided. ○ Rule:  Second tortfeasor is liable only for the aggravation (assuming he can prove what the aggravation was. However this court still does not allow proportionate recovery because the plaintiff could not prove that the probability of loss with defendant's negligence increased the risk of loss. Hutton could not pinpoint a time when earlier intervention would have changed the outcome. if he can't prove that then he is liable for everything)  First tortfeasor is always liable for the initial injury. a defendant from whom plaintiff has obtained payment of a judgment has the right to obtain full reimbursement from some other tortfeasor (e. • Indemnity: In some cases. and he will also be jointly and severally liable for the aggravation if the possibility of negligent aggravation by another was reasonably foreseeable. ○ One shot struck the plaintiff in the eye and another his lip. only the incremental damage would have been avoided. were unable to prove to a reasonable medical probability that the phy sicians' alleged negligence proximately caused the lost chance to avoid the amputation…" ○ The Alberts cannot show. Dr. Outline Page 19 . ○ But total recovery cannot exceed amount of judgment • No contribution: Multiple defendants found liable for an injury to plaintiff have no right to force each other to share judgment. ○ The court held that . • Joint and several liability abolished in some circumstance ○ And replaced by several liability where defendants are only liable for the damage they have caused." • Fault may be assigned to non-parties so long as the non-party is identified. He said that the probability that Mr. whereas if only the sec ond had used due care. "a defendant who is negligent because of a failure to protect the plaintiff from the specific risk of an intentional tort is jointly and severally liable for the intentional tortfeasor's share of fault.g. The Alberts presented expert testimony of Dr. t his would allow defendant 1 to then sue defendant 2 to get half the payment back. Reddy immediate ly sent Mr. Alberts' leg could have been saved decreased significantly because of the inaction of both physicians."The Alberts through their expert. or  If an indivisible ( don't know who causes injury) injury results. by the tortfeasors acting independently.or if sued together in any proportion he chooses. Dr. However. ○ Plaintiff filed suit claiming defendants negligence led to his injuries.

where plaintiff cannot identify the manufacturer who sold the drug that ingested by her mother. etc. which is g enerally required in products liability actions. ○ Because neither defendant could prove the shot came from the others gun. that defendant could go after another defendant for whatever percentage of the market that defendant had.Plaintiff filed suit claiming defendants negligence led to his injuries.  Market Share Liability: ○ Majority  In DES cases.  The court held that the trial judge should have instructed the jury on the eggshell plaintiff rule which holds the defendant liable for all of the injuries sustained to the plaintiff even if the injuries were worse than an ordinary person. even if that means that the defendant must compensate the plaintiff for harm an ordinary person would not have suffered. each defendant has the burden of proof to absolve himself of liability. Hymowitz v. They are both jointly liable because they were acting in concert. defendants are in a far better position to offer evidence to determine which one caused the injury. Third-party Act 3. but □ Allow contribution based on national market share  So if one defendant ended up paying entire recovery. the likelihood that any one of them injured the plaintiff is relatively high. ○ Therefore. ○ The plaintiffs main barrier was that it was impossible to identify the manufacturer of the DES that caused injury. manufacturers who sold the drug for pregnancy use can be held liable for damages based upon: □ Their shares of the national market □ In sales for pregancy use  Liability is several only ○ Dissent  Impose (1) joint and several liability on manufacturers. who had a history of coronary disease. break The chain of legal causation ------------------------------> Defendant's injury 1. condition. ○ Plaintiffs allege that they were injured by the drug DES ingested by their mothers during pregnancy. tice) was not appropriate because there were many more defendant so the probability an individual defendant was liable was much smaller. which the plaintiff has done.  The court noted that alternative liability (like in summers v. Preexisting Condition (the plaintiff's own condition) 2. died of a heart attack six days after suffering a bruised chest and fractured ankle in a car accident caused by defendant's negligence. • The dissents view is more generous to the plaintiff. the rule imposes liability for the full extent of Outline Page 20 . Also the majority's view does not allow a defendant to escape liability because the damage is for the risk to the public at large (unless the defendant can show it never marketed the drug for pregnancy purposes) • Under the majority's view. ("Once the plaintiff established that the defendant caused some injury to the plaintiff.  The court also noted that a concerted action did not apply because the defendants did not have a common plan to commit a tort. which requires the defendant to take the plain tiff as he finds him.  Remember any proximate cause must be an actual cause but an actual Unexpected Harm Benn v.  The court held that the defendants were jointly liable for the plaintiff's injuries. Proximate Cause Plaintiff's tortious act Does event. ○ The DES manufacturers were sued and there were nearly 500 similar actions pending in New York at the time. • Holding the defendants jointly and severally liable in this situation allows the plaintiff to recover for the wrong done to him and requires a defendant to prove his innocence since defendants will probably have more information about the accident. ○ Tice argued that there was evidence to show that the shot which struck plaintiff came from Simonson's gun because of admissio ns allegedly made by him to third persons and no evidence that they came form his gun. • It also rests on the notion that because there are typically a small number of defendants. Thomas ○ Plaintiff's decedent. • Suppose the hunters had shot at a quail and one shot hit the plaintiff and it can be identified whose gun it came from. Plaintiff's act 4. many years elapsed between ingestion and injury so the defendants did not have more information than the plaintiffs. but (2) allow each to exculpate himself by disproving causation  For those who could not exculpate themselves: □ Impose joint and several liability. ○ When two or more defendants are negligent and it cannot be determined who actually caused the injury. • The essential difference between the majority and the dissent is that the plaintiff can recover full amount in the dissents view. (take the plaintiff as they come) • The eggshell plaintiff rule is applicable once the plaintiff shows that the defendant caused some injury to the plaintiff. the plaintiff cannot recover for that 30%. Act of God  The key question is do these causes break the chain of legal cause so that the defendant is not liable. if a defendant who had 30% of the market no longer exists. ○ The trial judge refused to instruct the jury on the "eggshell plaintiff" rule. ○ Moreover. Also. it would be unfair to the plaintiff to exonerate all defendants of liability. ○ Benn's executor sued defendant for Benn's injuries and his death. Benn. both defendants were held jointly liable. ○ Plaintiff provided a medical expert who testified in his view that the accident was the cause of Benn's death. Eli Lilly & Co.

courts deal with this.000 Fire Polemis Wagon Mound Allow Allow Disallow Disallow $50. in a nearby wharf." the plaintiff may recover for all such harm." • The question to ask when considering proximate cause is: ○ "whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's negligence .• done. except where the harm is intentionally caused by the third person and is not within the scope of the risk created by the defendant's conduct.  The court held that the harm the plaintiff suffered cannot reasonably be understood as within the scope of the risk created by the defendant's conduct.  Court held that it does not matter if the defendant can foresee damages that are caused that the defendant is still liable for all damages as long as the damages were a direct consequence of defendant's actions. then the harm suffered would be of the same type that allegedly made the defendant negligent. due to the dangerous neighborhood. the rule imposes liability for the full extent of those injuries.  the court said that it is unreasonable for a defendant to be held liable for extensive unforeseen damages when the negligence only resulted in trivial foreseeable damage  Basically that defendant only liable for foreseeable damages. • Doesn't seem to be…Wagon Mound seems to go against eggshell plaintiff.000 (plank hits someone on head) Allow Categories of Unforeseeable Loss Unexpected extent of harm Unexpected kind of harm Unexpected manner of harm Unexpected victim ? • • • • The question is if there is a uniform way U. • Plaintiff argues that absent the overgrowth either the rape would not have occurred at all or it would not have lasted as long. a ship chartered by defendants was taking on bunkering oil. ○ The board came in contact with a substance which created a spark and eventually led to the destruction of the ship by fire.g. Doe.  The court did not feel the landowner should reasonably foresee that a condition on his property such as overgrown vegetation might provide a substantial incentive for the commission of a violent criminal assault between strangers.. is not relieved from liability by the intervention of another person.000 Fire $5. Third-Party Criminal conduct • Criminal conduct within the "scope of risk" defining the defendant's duty of due care: Defendant can be liable. was it foreseeable that the man would die of a heart attack 6 days after the car accident….") Possible justifications of "Egg Shell skull" Rule a. ○ Overgrown sumac bushes and tall grass on the defendant's property shielded the area where the crime occurred.  The harm suffered by the plaintiff was not of the same general type that allegedly made the defendant negligent. ○ Plaintiff sued for damages. For instance. ○ Plaintiff brought an action against the property owner for personal injuries claiming that the defendant failed to remove the overgrown vegetation when he knew or should have known. If the overgrown vegetation would have caused physical injury.S. Suppose negligence would cause foreseeable damage of $10.g." Outline Page 21 . Wagon Mound ○ Plaintiffs were refitting a ship in their wharf. Phan Son Van) • Restatement (Second) of Torts:  "a negligent defendant. • The court rules that the defendant's conduct was not the proximate cause of the attack. Polemis ○ The defendant's negligent conduct on a ship caused a wooden board to fall into a hold. ○ The oil ended up catching fire causing extensive damage to the plaintiffs' wharf and equipment. Yet the defendant can be liable for ALL of the plaintiffs injuries if it is found to be connected. High administrative costs of permitting recovery for no more than normal injury • Emotional distress: when plaintiffs suffer greater damages than those that were foreseeable because of preexisting "physical or mental conditions. ○ A large quantity of oil spilled into the bay and some of it concentrated near plaintiffs' property. Insufficient incentive for tortfeasors to take care b. Excessive incentive for tort victims to take care c. Hines) • Criminal conduct not within the "scope of risk": Defendant cannot be liable (no proximate cause. that third persons might use the area for crimes against pedestrians. not merely those that were foreseeable to the defendant. ("Once the plaintiff established that the defendant caused some injury to the plaintiff.probably not. ○ Meanwhile. ○ The owners of the ship sought to recover damages from the defendants who chartered the ship based on a contract of charter wh ich would hold the charterers responsible for damage caused by fire. ○ Plaintiff's expert stated that the shielded area served as an inducement for crime. (E.. Superseding Causes Doe v. whose conduct creates or increases the risk of a particular harm and is a substantial factor in causi ng that harm. Manheimer ○ The plaintiff was raped by an unidentified assailant on property owned by the defendant. or no breach of duty) (E.000 from plank injury (Polemis) or cloggage (Wagon Mound): Actual Damage $50.

the man dropped his package containing fireworks. and risk imports relation. should be relieved of responsibilit y for the latter simply because the chance of its occurrence." Unexpected Harm Palsgraf v. Not ALL of these damages are foreseeable for the defendant owners of the ships. of the same general sort. would the child's negligence be imputed to the mother in her emotional distress case? ○ The courts were reluctant to impute negligence from one party to another claim. ○ The second man. and finally city was negligent by not raising bridge and the river was damned at the bridge and property damage was sustained due to flooding. if a child was negligent and was killed. however: ○ "we see no reason why an actor engaging in conduct which entails a large risk of small damage and a small risk of other and g reater damage."whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's negligence . DEFENSES The Plaintiff's Fault Contributory Negligence ("only a handful of states adhere to traditional contributory negligence") • Simple negligence ○ x<x * ---> injurer liable ○ x> or equal to x * ---> injurer not liable • Negligence with contributory negligence ○ x<x * and y> AND equal to y * --> injurer liable ○ x> or equal to x * OR y<y* ---> injurer not liable Where : x * is legal standard of precaution for injurer y* is legal standard of precaution for victim x is actual level of precaution taken by injurer y is actual level of precaution taken by victim Contributory Negligence and Assorted Issues • Negligent rescuers ○ Courts have said that they would relax the standard of negligence when applied to rescuers • Statutes for protection of victim ○ Courts have said this was an exception to contributory negligence as well • Reckless injurer. ○ Plaintiff was standing on a platform of defendant's railroad after buying a ticket. seemed unsteady when jumping aboard the car so a security guard tried to help by pushing him from behind.  "The risk reasonably to be perceived defined the duty to be obeyed. Kinsman • Two large chunks of ice floating down river collected a ship whose crew acted inadequately to the situation. if viewed alone. Long Island Railroad Co. who was carrying a package. ○ A train stopped at the station and two men ran forward to catch it. a second ship was collected because it was improperly moored to a dock.  It would not be foreseeable that plaintiff would be injured by the guards negligence. Even if victim was negligen t • Last clear chance ○ The plaintiffs negligence would not be a defense if the defendant had the last clear chance to avoid the plaintiff's injury. negligent victim ○ Contributory negligence was not a defense when the defendant was more than negligent (reckless). ○ In the process. ○ A dissenter said this case was all about causation and that the defendant's negligence was a proximate cause of the plaintiff's injury. Comparative Negligence (Some states use "Pure" but most use "Greater Fault Bar") • x<x * and y≥y* ---> injurer 100% liable • x≥x * ---> victim 100% liable Otherwise… Forms of Comparative Negligence Outline Page 22 . from the same forces. the courts state that although the defendant may not have foreseen the extent of the damage. • Reluctance to impute negligence to plaintiff ○ For example. and a subsequent explosion injured the plaintiff many feet away. • Jury "nullification" ○ Juries would sometime nullify contributory negligence even though they were instructed by the judge to prevent recovery if pl aintiff was at all negligent. may not have been large enough to require the exercise o f due care. ○ The plaintiff sued the railroad company for negligence. it is risk to another or to others within the range of apprehension.  The court held that the railroad company owed no duty to the plaintiff but only had a duty to the passenger whose property was destroyed. and to the same class of persons. the damage was of a kind that could be expected." • In the Kinsman cases.

right of contribution based on relative fault • Several liability only (Ds only liable for their share) ○ A problem arises here: what if a D is insoluble? P will just not be able to recover damages from that D. there is large impact between the usage of equal fault bar.7% responsible and would bear $2 in damages for every $1 borne by P.or if sued together in any proportion he chooses. damages reduced in proportion to plaintiff's negligence ○ Plaintiff 45% negligent cannot recover ○ Plaintiff 10% negligent can recover 90% of damages • Equal fault bar ("Wisconsin" rule): Plaintiff can recover if and only if his negligence was not as great as defendant's negligence. • Does the Act adopt comparative negligence? Yes • The Act adopts a pure form of comparative negligence. D 40 mph..Forms of Comparative Negligence • Pure: Plaintiff's damages reduced by percentage responsibility ○ Plaintiff 90% negligent can recover 10% of damages • Slight-gross: Plaintiff can recover if defendant's negligence is gross and plaintiff's negligence is relatively slight. P may recover the full amount of damages against either one . P's car is damaged. contribution on equal share basis ○ Suppose 3 defendants D: 40%. who was 33. ○ But total recovery cannot exceed amount of judgment • No contribution: multiple defendants found liable for an injury to plaintiff have no right to force each other to share judgment. See pages 447-459 for examples. and greater fault bar..3 % responsible. Statutory Revisions • Uniform Act: Joint and several liability. D:10%. several liability only below threshold Aggregation Insolvency (D3) Set-Off Settlement Outline Page 23 .under this approach. Plaintiff's damages reduced proportionately ○ Plaintiff 49% negligent can recover 51% of damages ○ Plaintiff 50% negligent cannot recover • Greater fault bar: plaintiff can recover if and only if his negligence was no greater than defendant's negligence ○ Plaintiff 49% negligent can recover 51% damages ○ Plaintiff 50% negligent can recover 50% of damages ○ Plaintiff 51% negligent cannot recover • How often will a finder of fact attribute equal negligence to both plaintiff and defendant? ○ Allocating fault equally is a fairly easy thing for a jury to do ○ Therefore. ○ (x*-x)/(y*-y) ○ (30-40)/(30-35) = 10/5=2/1 • D 66. Uniform Comparative Fault Act: No state has adopted it but statutes that states have adopted take variety of pieces of it.x)/(y*-y) Example • Two cars collide in area with speed limit of 30 mph. D: 20%. each D would be liable for one third of the judgment in contribution. P going 35 mph. Pure P 90% D 10% Slight/Gross Equal Fault Bar Greater Fault Bar No Recovery Recovery No Recovery No Recovery P 51% D 49% P 50% D 50% P 49% D 51% P 10% D 90% Recovery No Recovery No Recovery Recovery No Recovery No Recovery Recovery No Recovery Recovery Recovery Recovery Recovery No Recovery Recovery Recovery Recovery Comparing Fault • Comparative negligence can be measured as a ratio: Relative difference between parties' actual levels of precaution and legal standards of precaution • (x * . the book goes over all of these scenarios Multiple Defendants: Common-Law Doctrines • Joint and several liability: Two(or more) Ds may be sued together or separately. • Joint and Several liability. • Joint and several liability above a fault threshold. So plaintiff will recover proportionately regardless of how great of fault plaintiff contributed.

If this was allowed.000 from D2. the exception should not apply. Fritts v.Aggregation Insolvency (D3) Set-Off I II P 30% 40% 40% Settlement 40% ($40K) 0% ($50K) D1 D2 D3 40% 10% 20% 30% 30% 10% 10% 20% 20% 30% 10%($25K) 20% 50% 50% For I. The contribution must also be reasonable. the P could try to get 40. plaintiff's drug and alcohol abuse is relevant to damages (life expectancy for loss of future earnings) • "There are limited circumstances under which reasonableness of patient conduct can be an appropriate consideration in medical negligence cases":  Evidence of a patient's failure to reveal medical history  Patient who furnishes false information about his condition  Failure to follow a physician's advice and instructions. P can recover because Ds fault are added together. So if the loss was 50. P can recover 70%.000 and D1 and D2 are both 50% liable. So from the above table. suppose there is a car accident and damage to plaintiff's car and defendant's car are in the table above.  "if the proposed treatment could result in an aggravation of the existing condition or the development of an additional condition of ill health. P cannot recover because P is more at fault than all three defendants separately. ○ What can the plaintiff get from the non-settling D?  The plaintiff can only recover from the non-settling defendants the total amount minus the settling defendant's equitable share. ○ This is a valid doctrine. Assumption of Risk Express Agreements: Outline Page 24 . a complication led to the death of plaintiff's decedent ○ Plaintiff's decedent filed a medical malpractice claim ○ Defendant used a comparative negligence defense arguing that decedent's injuries were due to his negligence from driving drun k  The court held that "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. or delay or failure to seek further recommended medical attention • Avoidable consequences: ○ If the plaintiff had taken some action. If there is contribution. Majority approach keeps joint and several liability. D1 can get contribution from D2 for part of that settlement if that would extinguish D2's liability. This is the minority approach (plaintiff bears all of the loss of that D) The Uniform Act says that amount of the insolvent defendant will get distributed to all of the parties in the proportion of fault. If one party settles. the injury would not have been avoided but it would have been reduced. D1 can seek repayment from D2 and D3. If there is aggregation. ○ The clearest form of avoidable consequences issue involved the plaintiff's failure to obtain medical attention or to follow m edical advice. ○ So the two rules:  Must distinguish liability on the part of the non settling party  Contribution must be reasonable ○ Say the case proceeds. D3 is insolvent and plaintiff would bear half the loss and the other half would get distributed to D1 and D2 according to their fault. F or II. If D1 settles for 10. or if the prospect for improved health is slight. if there is no aggregation. So the amount that would have been borne by D3 in the above table would be distributed proportionally by fault to D1 and D2. can that party seek contribution from another liable party for a share of the settlement? ○ Under the Uniform Act. McKinne ○ Plaintiff's decedent was drinking and driving and suffered serious injuries when his vehicle crashed ○ During a medical procedure to repair his injuries. this would deter settling.000 P can still only get 25. The insolvent defendant's share is spread among the solvent Ds in proportion to their relevant fault. Should one damage set-off the other? The Uniform Act says there are no set-offs unless parties agree." ○ Example: a seat belt. can the parties held liable seek contribution from the settling party?  No. Under the Protanto rule. then there should be no duty to undergo the treatment. but removes contribution. the plaintiff bears the loss associated with the insolvent D. Plaintiff cannot recover from D2 or D3 because P is more negligent P can recover against D1. if there is no aggregation. If the risk is clearly remote."  However. The accident would still have occurred and injury would probably have resulted.000 from D2. and if liability is joint and several. But the risk need not be significant or even probable in order to rigger the exception. The non-settling Ds cannot get any contribution from a settling defendant. If Ds were severally liable. but it would have been less severe so damages should be reduced. joint and several liability with aggregation would allow 60% recovery from any defendant. In the Set-Off.

and to guard against the negligence of their agents and employees and therefore the exculpatory agreement violates the public policy underlying business invitee law. other than for marketing purposes If. this would do little to add to the plaintiff's case because the risk at greatest was a fall. • • Express Agreements: ○ Express Agreements (a waiver of liability)  An agreement that plaintiff will assume any loss that occurs.practical necessity. a. Party invoking exculpation possesses decisive advantage of bargaining strength. As a result. an important incentive for ski areas to manage risk would be removed. ○ Plaintiff alleges that the ski resorts negligence led to the accident and that the release from liability agreement was "ambi guous as to whose liability was waived and that it is unenforceable as a matter of because it violates public policy. on the flip side. in these circumstances. S-K-I. Party holds himself out as willing to perform the service for anyone satisfying established criteria." Although the skier assumes the risks that comes with skiing.• • • • 1. ○ Dangers were so serious as to justify belief that precautions must have been taken to avert them. Ltd ○ While skiing at defendants' resort. ○ The attraction featured a moving belt running upward on an inclined plane where people are often unable to keep their footin g and are thrown backward and aside.  The court held that because the plaintiff observed visitors tumbling about the belt to the merriment of onlookers when he decided to join them. " • Implied Assumption of Risk ○ Primary (defendant not negligent): A defendant cannot be held liable because (1) he is under no duty to plaintiff or (2) there has be en Outline Page 25 . plaintiff purchased a season pass and signed an exculpatory agreement to release the ski resort from any lia bility in the event of an accident. Why might a firm disclaim liability for injuries resulting from its negligence? ○ To avoid a mistaken finding of negligence ○ Informational asymmetry about expected risk  Maybe the skier really wouldn't appreciate the risks involved Tunkl Factors: Disregard Disclaimer If: (Do not need to satisfy all 6) Agreement concerns type of business thought suitable for public regulation. the resort would be held liable for ALL injuries: ○ The price to consumers would increase dramatically in order for resort to cover their risks. "this was the very hazard that was invited and foreseen. subject to risk of seller's carelessness. this does not mean that the ski resort should be immune from liability of its own negligence The disclaimer does not give the ski resort any incentive to take due care. Party confronts public with standardized adhesion contract of exculpation. ○ Why should an express agreement be enforced?  If parties agree. Something like a common carrier Party seeking exculpation engaged in performing a service of great public importance . 3. 4. Express Assumption of Risk ○ Nature of the activity  Courts more likely to enforce releases pertaining to recreational or entertainment activities than "necessary" activities ○ Clarity of the release  Must be "unambiguous" ○ Nature and extent of risk ○ Voluntary acceptance ○ There is no argument about the clarity of the release.  The court held that public policy demands that the disclaimer be voided  The court held that the ski resort had the expertise and opportunity to foresee and control hazards.  "If defendants were permitted to obtain broad waivers of their liability. ○ The plaintiff alleges that the jerk from 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. why should it not be enforced…. or ○ So many accidents had occurred as to show that "game in its inherent nature was too dangerous to be continued without change. the purchaser's person or property is placed under control of seller. the hazard was invited and foreseen and by taking the chance of a like fate. Steeplechase Amusement Co. and makes no provision for paying additional. 6. plaintiff was badly hurt when he collided with a metal pole that was part of the ski lift line.  Even if an irregular jerk was established. ○ Prior to skiing. Courts generally agree that gross negligence or recklessness may never be disclaimed by agreement no matter what words are used. ○ Here the court did not enforce the release even though the nature of the activity was recreational. to undermine the public policy underlying business invitee law and allow skiers to bear risks they have no ability or right to control. ○ But the idea of escaping liability for one's own negligence is not always favorable Dalury v. reasonable fees and for protection against negligence. 2. ○ Plaintiff was injured on a "moving belt" attraction at defendant's amusement park. Implied Assumption of Risk Murphy v. It is illogical. the amusement park is not liable. 5. with the public bearing the cost of the resulting injuries."  (It helped that no similar injury had occurred on the ride in the past) • Take Away Rule: ○ Plaintiff who voluntarily takes part in activity that involves apparent risks cannot recover if one of those risks materializ es and causes injury • Different case if: ○ Dangers were obscure or unobserved.

both the plaintiff and defendant have been negligent and the defendant wants to use an assumption of risk affirmative defense.and it is important to note that this is greater fault bar doctrine because if jury finds equal negligence. but he continued to use the stairway.  The court said the limited-duty rule applies to injuries only occurring in the seats. and ○ the plaintiff must voluntarily expose himself to the danger Firefighter's Rule (Assumption of Risk) The common-law firefighter's rule provides that a firefighter or police officer who enters a private property in the exercise of his duties occupies the status of a licensee and.  In accordance with Judge Sanders logic. the plaintiff saw the defendant hide sandwich size plastic baggies in his pants which the pla intiff believed to be marijuana. The court will allow the plaintiff to recover proportionally as long as the plaintiff's fault is not greater than defendant's. a police officer. therefore. the defendant's actions increased the probability of the plaintiff's injury. The plaintiff cannot recover if their negligence exceeded that of defendant's. a merely negligent motorist. ○ Upon arriving at the residence. ○ The duty a stadium owner has is simply to provide enough screened seating for most fans that want protected seating as well as having screened seating for the most dangerous areas. This may become complicated for jury…. Sports Cases ○ Participants  Assume risks except for intentional or reckless conduct ○ Spectators  Limited-duty rule ○ This comes from a string of baseball cases. and did not merely furnish the occasion for the injury.assumption of risk is used as an affirmative defense. severely injuring him. spectator gets hit by foul ball. Licensee." ○ This is a lot like causal link in negligence cases. negligence) because plaintiff's conduct has limited the duty owed him by defendant. ○ The plaintiff must know the condition is dangerous ○ The plaintiff must appreciate the nature and extent of the danger. there are four requirements to establish the defense of assumption of risk ○ The plaintiff must have knowledge of the facts constituting a dangerous condition.• • • • • • • • • • • • no breach of duty (i.  The court held that the firefighter's rule did not apply in this case because there would not be reasonable expectations on the defendant. Cone ○ Plaintiff. thus the fireman takes the property as he finds it (an argument could be posed that the fireman would be an invitee because he is bringing about a tangible benefit to someone. and another officer received a complaint about a noisy party. there would not be double taxation because the defendant does not pay taxes on the property "Double taxation": Public policy against awarding damages to professional safety officers for hazards that create a need for their services and for which they are compensated. Outline Page 26 . The firefighter's rule doesn't apply to this case because the defendant is not the landowner so the licensee analysis necessary to enforce the firefighter's rule doesn't apply.e. collided with a tree and was seriously injured. The court here says that the most important justification for the firefighter's rule is the licensee analysis. and the officer is then hurt by D2. as the defendant was not the property owner  Also. ran into the woods nearby and just as the plaintiff was about to apprehend the defendant. he fell off of a ledge onto some rocks. ○ Secondary (plaintiff contributorily negligent): A defendant cannot be held liable for its established breach of duty because of the plaintiff's behavior . ○ Plaintiff then sued defendant for injuries negligently caused by the defendant while the plaintiff was pursuing the defendant on private property. Some states allow officer to sue D2 only if D2 is more than merely negligent ( engaged in willful or intentional misconduct). Zanghi (New York) ○ "Firefighter rule precludes a police officer or firefighter from recovering in tort when the performance of his or her duties increased the risk of the injury happening. plaintiff can still recover. Plaintiff must show a causal link." Express assumption of risk and primary implied assumption of risk continue to exist and can bar recovery altogether.  The court merged "Secondary" assumption of risk with comparative negligence.  "In our comparative fault system. it would be incongruous to absolve the defendant of all liability based only on whether the plaintiff assumed the risk of injury. The firefighter's rule emerged before this idea of tangible benefit. saving their house. Cotton Hope Plantation ○ Davenport was injured while descending a stairway near his apartment ○ For two months before his fall plaintiff had been reporting to management that the middle stairway's floodlights were not wor king. American Honda Motor Company ○ Plaintiff driving a 1987 Honda Accord. The court says that it is a jury question whether the plaintiff's negligence exceeds negligence of the defendant. "the defendant's fault in causing an accident is not diminished solely because the plaintiff knowingly assumes a risk. In SC. So courts found that since he didn't have an invitation but he had permission to be at the residence. The car was equipped with manual shoulder and lap belts but was absent airbags or other passive restraint devices. the officer may sue D2 but not D1. Pre-Emption Geier v. to avoid arrest. is owed a duty of care by the property owner that is less than that owed to an ordinary invitee. Here. that would make him a licensee not an invitee ) Levandoski v. ○ The plaintiff approached the defendant and requested that he remove the baggies from his pants. if D1's negligence brings a safety officer to the scene of an accident. In most states. ○ The plaintiff alleges that his fall was due to the defendant's negligence in improperly maintaining lighting in the stairway. ○ The defendant. Davenport v.

(he brought something unnatural to his land. or ○ State law stands as obstacle to accomplishment and execution of full purposes and objectives of Congress. The court held the defendant was liable anyways under strict liability. and. is prima facie answerable for all the damage which is the natural consequence of its escape. Hay  But see. overcome technical safety problems…etc. and is therefore [implicitly] pre-empted by the Act under the operation of ordinary pre-emption principles. burst into the shafts of a mine damagin g plaintiff's property • The court held that a "person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes.g. Freightliner: Federal Preemption ○ Express Preemption  Depends upon the precise terms of federal statute ○ Implied Preemption  Scope of a statute indicates that Congress intended federal law to occupy a field exclusively."  The objectives being that the DOT deliberately made the standard in order to provide the manufacturer with a range of choices among different passive restraint devices so as to win widespread consumer acceptance. The blast hurled a fragment of wood 412 feet onto a highway where it struck plaintiff's decedent and killed her.  FMVSS 208 requires auto manufacturers to equip some but not all of their 1987 vehicles with passive restraints. any safety standard applicable to the same aspect of performance of such vehicle or item of equipment which is not identical to the Federal standard. ○ Plaintiff claimed that American Honda had designed its car negligently and defectively because it lacked a driver's side airb ag. the plaintiff's mine would have incurred no damages therefore the defendant should be strictly liable for the natural and anticipated consequences. Rylands  But see. • • • • Outline Page 27 . or to continue in effect. So in this case. with respect to any motor vehicle or item of motor vehicle equipment.. e. Sullivan. or  State law is in actual conflict with federal law: ○ Impossible for private party to comply with both state and federal requirements. e.. why apply strict liability when negligence liability works well? Some Categories of Strict Liability: ○ Escaping water  See. ○ The car was equipped with manual shoulder and lap belts but was absent airbags or other passive restraint devices.g. • However. a standard authorized by the Act. e. if he does not do so.  "No airbag" tort suit not expressly preempted because of saving clause.  "No airbag" tort suit conflicts with the objectives of FMVSS 208. Turner ○ Explosion  See. but still liable So the only thing strict liability adds to negligence is making a defendant liable in cases where burden of precaution was greater than the expected accident cost.Plaintiff driving a 1987 Honda Accord." • (The defendant was held strictly liable for the damages to plaintiff's mine) ○ The court uses a but for reasoning saying that but for the defendant constructing a reservoir on his land.g. (This is Geier if manufacturer were forced to have airbags..  The court says this question does not need to be answered because the saving clause does not exempt any person from liability under common law even when complying with a federal safety standard.g.  The Motor Vehicle Safety Act has an express pre-emption provision: ○ "Whenever a Federal motor vehicle safety standard established under this subchapter is in effect. Losee ○ Wild animals kept by defendant ○ Falling airplanes Sullivan v. collided with a tree and was seriously injured.. it escaped and caused damage to neighbor's property) It is not self evident why the cattle and unruly horse cases were decided how they were. an argument can be made that legislature would not intend to pre-empt all claims because that would essentially provide complete immunity for an industry. e. The court would not have held defendant liable under ordinary negligence. it is important to look at the objectives of the legislature • The legislature intends for suits to be preempted when they do not want judicial decisions to establish their own regulations. Fletcher v. Rylands ○ The defendants had a reservoir constructed on their land that when filled with water. ○ The defendant argues that the Motor Vehicle Safety Act pre -empts the tort claim because there is already a federal standard under FMVSS 208 and the tort claim would establish a new standard. no State or political subdivision of a State shall have any authority either to establish. The question is. we can assume that B>PL. lower costs. that would still comply with both state and federal requirements but it would stand as an obstacle to objectives) STRICT LIABILITY (Liability in the absence of negligence) • B<PL ---> Negligent B>PL ---> Not negligent. • So when analyzing whether a suit is pre-empted."  The provision also had a "saving" clause which states: ○ "compliance with a federal safety standard does not exempt any person from liability under common law"  So would liability under a common law tort action of defective design be a standard as in the above statute? Arguments could be made either way. must keep it in at his peril. Dunham ○ Defendant land owner employed two men to dynamite a 60-foot tree on the land.

the court said that this was a case of negligence and not a case of strict liability  "It is easy to see how the accident in this case might have been prevented at reasonable cost by greater care on the part of those who handled the tank care of acrylonitirle. Strict liability eliminates the systematic decision to go above and beyond the precaution that is necessary to ensure the jur y will not make a mistake and hold me negligent. This is therefore not an apt case for strict liability.000. which although accidental. ○ The court is trying to reduce the number of these kinds of accidents by inducing the parties to take more care. THEN STRICT LIABILITY IS PROBABLY APPROPRIATE If an activity is extremely common. Outline Page 28 .the person who engaged in the dangerous activity or the innocent neighbor injured thereby? Strict liability is usually imposed for unintended explosions of stored dynamite Standards: ○ Restatement 2d: one who "carries on an abnormally dangerous activity is subject to liability for harm…resulting from the acti vity. It is difficult to see how it might have been prevented at reasonable cost by a change in the activity of transporting the chemical. 3. So essentially the court explained how acrylonitrile is a valuable chemical and it isn't clear that any activity levels should be reduced. The retail dealer resold the vehicle to the plaintiff." The court basically says that a strict liability standard should not be used when a negligence standard will work. 5. or chattels of others. Inappropriateness of the activity to the place where it is carried on. some of the acrylonitrile leaked out and the plaintiff was forced to take decontamination measures that cost the line $981. Strict liability is not the proper standard here especially when negligence will work. • Why an enterprise should be strictly liable: ○ An enterprise has superior risk-bearing capacity compared to victims who would otherwise bear the costs of accidents. Minimize costs of evidentiary uncertainty a. although he has exercised the utmost care to prevent the harm. or reducing the activity givingrise to the accident.000 and PL is 50. more cases would be filed under strict liability.  Although their was a high degree of risk to others and the potential harm was great. Existence of a high degree of risk of some harm to the person. However strict liability will encourage technological development to lower B (find a cheaper precaution). Countering this. ○ The next day.022. the court noted that strict liability in these cases:  Protect person and property from direct physical violence. 4. and ○ An enterprise is generally better placed to respond to the safety incentives created by liability rules than is the party suf fering harm PRODUCTS LIABILITY MacPherson v. So the costs minimized may be counterbalanced by an incre ase in the number of strict liability cases. CHANGING. When evaluating strict liability: look at the justifications of strict liability in comparison to the categories of strict liability. 4. Buick Motor Co. If B is 100.• • 1. ○ Defendant loaded 20. is a major manufacturer of acrylonitrile. Never have to determine what the burden of precaution was or should have been b. 2. OR REDUCING THE ACTIVITY GIVING RISE TO THE ACCIDENT IS FEASIBLE. Extent to which the activity is not a matter of common usage. Inability to eliminate the risk by the exercise of reasonable care. ○ After arriving at the Blue island railroad yard. D will not take precaution under strict liability because the D is liable anyway. ○ The blast hurled a fragment of wood 412 feet onto a highway where it struck plaintiff's decedent and killed her." ○ In determining whether an activity is "abnormally dangerous" there are six factors for consideration: 1. Likelihood that the harm that results form it will be great 3. which plaintiff sought to recover. but instead relocating. the more valuable that activity and therefore the argument for strict liability is weakened because we do not want to reduce the occurrence of activities that are really valuable. Minimize administration costs a. IF A GREATER EXERTION OF CARE WOULD NOT HAVE HELP PREVENT THE ACCIDENT AND RELOCATING. Indiana Harbor Belt RR v.000 gallons of liquid acrylonitrile into a railroad tank car that it leased from the North American Car C orporation. a train of the Missouri Pacific Railroad picked up the tank car and carried it to the Blue Island railroad yard of Indiana Harbor Belt Railroad. ○ The plaintiff is a small witching line located in the Chicago metropolitan area. b. and 6. • • • • • Defendant land owner employed two men to dynamite a 60-foot tree on the land. "to experiment with methods of preventing accidents that involve not greater exertions of care assumed to be futile. 2. American Cyanamid Company. changing. American Cyanamid ○ Defendant. ○ Defendant automobile manufacturer sold an automobile to a retail dealer." SO. land.75. ○ Decedent's representative sued for damages  The court held that the defendant was strictly liable for the plaintiff's decedent's death  To support its ruling. Encourage long-run technological development a. ○ So why ever impose strict liability because wouldn't we always want to induce more care? ○ Strict liability gives an incentive missing in a negligence regime. which is the plaintiff. Extent to which its value to the community is outweighed by its dangerous attributes Economic Arguments supporting Strict Liability Reduce activity level a. So essentially strict liability may lead to less precaution…but this is ok because it eliminated the unnecessary "extra" prec aution. has the same effect as if it were intentional  Lessens the hardship by placing absolute liability upon the one who causes the injury "The question was not whether it was lawful or proper to engage in blasting but who should bear the cost of any resulting damage -. (negligence liability does not do this) This argument is based on the concept that one party is more capable of reducing acti vity level than another.

Limitation:  "The manufacturer's liability should. ○ There was evidence that its defects could have been discovered by reasonable inspection. there are three types of defects."  The consumer no longer has means enough to investigate for himself the soundness of a product and therefore rely on the reputation of the manufacturer to produce a sound product. because the nature of the defendant's work is to produce cars and it is foreseen that a defect in its construction would endanger persons other than the buyer (retail dealer) Standard imposed: ○ Manufacturer liable to user despite absence of privity: ○ When manufacturer has knowledge that product is reasonably certain to place user in danger if negligently made. "The most common and straightforward cases of defective products involve the aberrational mass-produced item that has Outline Page 29 . Courts generally do not imposed strict liability on sellers of used goods nor occasional sellers Extension From Sellers to Others Restatement 3d Section 1:"one engaged in the business of selling or otherwise distributing products who sells or distributes a defective product is subject to liability for harm to persons or property caused by the defect. in a commercial context. and should not extend to injuries that cannot be traced to the product as it reached the market. ○ Plaintiff. if a product injures a person. and that an inspection was not perf ormed. as the public cannot."  "Against such risk [of defective products] there should be general and constant protection and the manufacturer is best situated to afford such protection. ○ The defendant bottler used pressure to bottle carbonated beverages. This case does not impose strict liability…the manufacturer still had to be negligent. ○ If manufacturer is negligent. and ○ Its negligence proximately causes harm Justification: Privity is a bad standard because a lot of the time. in a commercial transaction other than sale. Coca Cola Bottling Co. Eventually. who the manufacturer did not directly sell to. be defined in terms of the safety of the product in normal and proper use. This causes future problems because what is a defective product? How do we determine if a product is defective? Traynor does not induce actors to take more care by enacting strict liability rather he induces actors to reduce activity level or look for alternative activities they may be safer. A product: ○ Contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product. manufacturers who incorporated component parts in the final product were held liable for the negligence of the subcontractors. "Other developments included treating a retailer who sold a product under its own brand name as though it were the manufacturer and thus holding it liable for negligent manufacture. ○ The court held that the car manufacturer owed a duty to the plaintiff. Justifications:  "It is evident that the manufacturer can anticipate some hazards and guard against the recurrence of others. the manufacturer will not be held strictly liable unless the product was actually defective when leaving the manufacturer. Now manufacturers are held to a strict liability ONLY when they sell a defective product. Also. one transfers ownership thereto either for use or consumption or for resale leading to ultimate use or consumption… (b) One otherwise distributes a product when. ○ An engineer from the bottle manufacturer testified that the tests performed on the bottles to check for defects were "pretty near" infallible. Then they allowed res ipsa doctrine to allow plaintiff to recovery. ○ While the plaintiff was in the car. ○ The court held that a manufacturer should be held strictly liable when a product he has placed on the market proves to have a defect that causes injury to human beings. courts began holding architects and builders liable for negligence in construction that hurt patrons or tenants. one provides the product to another either for use or consumption or as a preliminary step leading to ultimate use or consumption… • • • • • • • • • • • • Manufacturing and Design Defects • Section 2 provides that for purposes of determining whether a product is defective. a waitress. was injured when a soda bottle broke in her hand as she moved it from the case to the refrigerator. not personal injuries Warranty law extended to personal injuries caused by food products Extended to other products causing personal injury in Henningsen Privity requirement now virtually eliminated in consumer cases Escola v. of course. So essentially. and ○ Manufacturer has knowledge that the product will be used by persons other than immediate purchaser without new tests. This case just eliminated the privity standard." So first courts eliminated privity as a requirement. the person or party in privity is not the one who is actually using the product." Early Requirements of Tort and Warranty Recovery Privity Tort Negligence Required Required Warranty Required Not Required Development of Warranty Law Originally applied to failure of products to perform." ○ "Strict liability has been limited to sellers who were in the business of selling the product involved" R3 Section 20: Definition of "one Who Sells or Otherwise Distributes" (a) One sells a product when. a defective wheel crumbled injuring the plaintiff in the accident."  "…the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business.• • • • ○ The retail dealer resold the vehicle to the plaintiff.

" "a private contractor who followed government specifications in making a product could not be held liable for inadequacies in the design as long as certain requirements were met. the manufacturer is liable. and the omission of the alternative design renders the product not reasonably safe." Successor Liability ○ A successor corporation or other business entity that acquires assets of a predecessor corporation or other business entity i s subject to liability for harm caused by the predecessor's products if the acquisition: ○ Is accompanied by an agreement for the successor to assume such liability. the consumer expected it to fail. or a predecess or in the commercial chain of distribution. or ○ Results in the successor becoming a continuation of the predecessor (only a few jurisdictions recognize this) Generally a successor corporation is not liable for harm caused by predecessor's products Liability of Commercial Seller or Distributor of Product Components for harm Caused by Products Into Which Components are Integrated Can be liable if: ○ The component is defective ○ The seller or distributor of the component substantially participates in the integration for the component into the design of the product. a two month old battery that exploded) • There are two tests to determine whether a product has a design defect: ○ Cost-benefit test ○ Consumer Expectation Test • Cost-Benefit Test Design Defect: Cost-Benefit (or Risk-Benefit) Analysis B = IC + RV + PL2 Where: IC = Incremental direct cost of best alternative design (D2). the product seller is subject to liability for the increased harm. or a predecessor in the commercial chain of distributi on. relative to the actual design (D1) RV = Reduction in net value derived from the product by consumers of it ○ (an example would be the reduction in gas mileage of a safer steel car compared to the better gas mileage of a less safe aluminum car) PL2 = Summation of marginal expected accident costs associated with alternative design (D2) ○ (alternative design might reduce the expected accident cost of one type of accident buy may increase the expected accident cost of another) B<PL1 ----> product defective IC+RV+PL2<PL1 ---->product defective (so if the extra cost of alterative design plus cost of reduction in net value plus costs associated with new risks of altern ative design is less than expected accident cost. then product is defective. A manufacturer who produces a defective product is liable to consumer and rescuer of the consumer. "The failure to preserve the product is not always fatal to plaintiff's case if there is enough evidence of the malfunction to permit an inference of defect.) Outline Page 30 . It doesn't matter what kind of care manufacturer took. General Rule Governing Causal Connection Between Product Defect and Harm Whether a product defect caused harm to persons or property is determined by the prevailing rules and principles governing causation in tort. • Consumer expectations test: Product failed to perform as safely as a reasonable consumer would expect • So which test should we use? ○ Knife Hypothetical ○ Suppose knife is designed without a handle  Seems to pass consumer expectations test. ○ If proof supports a determination of the harm that would…. (The product did not fail the consumers expectations. ○ The original seller of a product with design defect is liable under a theory similar to negligence." (for example. and the omission of the instructions or warnings renders the product not reasonably safe. or ○ Constitutes a consolidation or merger (stocks not assets)with the predecessor. Everyone down the chain from a defect can be held liable ○ Cannot go up the chain because everyone above where the defect took place didn’t' actually sell or distribute a defective pro duct. The sellers in the chain following the original seller is strict liability ○ Is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could hav e been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor. or ○ Results from a fraudulent conveyance to escape liability for the debts or liabilities of the predecessor. ○ Liability for design defects is a lot like negligence (due care). Increased Harm due to product defect ○ When a product is defective at the time of commercial sale or other distribution and the defect is a substantial factor in in creasing the plaintiff's harm beyond that which would have resulted from other causes.• • • • • • • • • the preparation and marketing of the product.………. ○ "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" ○ Is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adop tion of a reasonable alternative design by the seller or other distributor. if a defective product is sold. This differs from manufacturing defect because manufacturing defect is strict liability.

a manufacturer would bear the cost of liability of harm to others. caused or enhanced the injuries.its utility to the user and to the public as a whole(this would be "RV") ○ The safety aspects of the product . that can reduce the damages received from a defective product liability. may allow defendant to avoid liability for dangerous product that fails cost-benefit test ○ Con: When used offensively. or try both ○ California identifies circumstances in which one or the other test must be used ○ The restatement 3d eliminates consumer expectation and uses cost -benefit as long as defect ipsa loquitur is at the plaintiff's disposal. Question as to whether evidence permits use of consumer expectations test one of law for the judge In this case.used only by select groupand (2) jury is not familiar with reasonable expectations of that group. Swimming pool Case. ○ The court held that the consumer expectations test could not be used in this case because whether the automobile was defective in design was outside the common knowledge of lay jurors. and smash the floorboard into her feet. Then. yet defendant held liable) ○ Pro: When used offensively. ○ Cost-benefit test: ○ Pro: Prevents defendant from avoiding liability for product design with obvious danger that is not cost justified ○ Pro: Insures that cost-justified design is not found defective ○ Pro: Burden on plaintiff can be lessened by recognizing defect ipsa loquitur ○ Conclusion: No independent need for consumer expectations test That is what the Restatement says. ○ Plaintiff suffered severe leg injuries when his motorcycle collided with a car. collaps e rearward. Cost-benefit test will be used as long as plaintiff can rely on defect ipsa loquitur in situations where it is warranted. When weighing risks and benefits of a design. are so dangerous and of such little use that under the risk-utility analysis. Consumer expectations are a factor in the cost-benefit analysis. may allow jury to find defect when design is cost justified (alternative is not reasonable. Prescription Drugs and Design Defects R3 section 6© ○ "A prescription drug or medical device is not reasonably safe due to defective design if the foreseeable risks of harm posed by the drug or medical device are sufficiently great in relation to its foreseeable… Prescription Drug cases in Court ○ Many courts have in fact applied explicit cost-benefit analysis. ○ Plaintiff and his wife sued the various parties in the chain of distribution. the burden was on the defendant to show that the benefit of its actual design outweighed the risks. ○ The issues of defect and causation were addressed through numerous experts produced by both sides.)  Consumer expectations test implies that product with open and obvious dangers does not contain design defect Arguments for Competing Test ○ Consumer expectations test: ○ Con: When used defensively. commonly accepted minimum safety assumptions of its ordinary consumers." If consumer expectations test is used. expert testimony can be introduced to prove expectations of that select group of users. Honda Motor Co. or the search for "excessive preventable danger" ○ Some states let plaintiff choose between the two. ○ The plaintiff sued General Motors claiming that defects in her automobile allowed its left front wheel to break free. though not the cause of the accident. may allow plaintiff to avoid needless burden of establishing defect through expert testimony under cost-benefit test. claiming that the absence of crash bars to prot ect the legs made the product defective under a strict liability analysis. Defendant may not defend by proving that design passes cost-benefit test Expert testimony on the subject of consumer expectations inadmissible except when (1) product is specialized . (manufacturer has a du ty of reasonable care to minimize the injurious effects of a foreseeable collision by employing common -sense safety features) Camacho v.)  Seems to fail cost-benefit test (handle would not be very expensive…. General Motors Corporation ○ Plaintiff's car was struck in the area of the left front wheel (estimated closing speed 30 to 70 mph) ○ The wheel collapsed into the floorboard and injured the plaintiff. Consumer expectations test is no longer used. courts in the future have considered this a large burden on the defendant and have switched the burden onto the plai ntiff to present an alternative design would have been better without being overly expensive ." Crashworthiness Doctrine ○ A motor vehicle manufacturer may be liable in negligence or strict liability for injuries sustained in a motor vehicle accide nt where a manufacturing or design defect. in prescription drug cases.the likelihood that it will cause injury and the probable seriousness of the injury (this is "PL1") ○ The availability of a substitute product which would meet the same need and not be as unsafe (this is like "RV" and "PL2") ○ 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 (this is like "IC" and "RV") Outline Page 31 . ○ Should consumer expectation test or cost-benefit test be used? ○ The court held that the consumer expectation test diverts the appropriate focus because it allows a defendant to escape liability for an open and obvious danger when really the design could be defective because another reasonable and efficient alternative is available Note: If the motorcycle driver was negligent in getting into the crash. including some for which no alternative exists. Various Positions on Defective Design Tests ○ Some states emphasize consumer expectations test ○ Other states emphasize cost-benefit test. one should consider: ○ The usefulness and desirability of the product .• • • • • • • • • • • • • it to fail. ○ The Cost-benefit test must be used ○ "The crucial question in each individual case is whether the circumstances of the product's failure permit an inference that the product's design performed below the legitimate. Page 582: ○ "Still other products. ○ However. Soule v. rather than Restatement 3d's test.

in the particular case. and B<PL. Manufacturer will not be held liable fo r inadequate warning or instruction). ○ E. a certain number of accidents will occur. when relevant. but actual use foreseeable ○ Manufacturer did intend actual use. Obvious Danger ○ Suppose risk from improper use of a product is obvious.. and probability is affected by instructions ○ Still." ○ Instruction will entail cost but produce no benefit (because the danger is obvious). or of the existence of suitable warnings or instructions ○ The feasibility. • Proposed Theoretical Principle ○ Issuing an instruction should render the manufacturer's design non -defective when the cost to user of conforming their conduct to the appropriate use of the product is cheaper precaution than is the net cost of a safer design. • Current Law ○ Some courts recognize that one cannot completely separate analysis of design from analysis of instructions and warnings ○ Cost-benefit analysis of design requires inquiry into probability of accident. ○ Thus. without proof of a specific defect. on the part of the manufacturer.. Legal Implications ○ Open and obvious dangers: ○ Do not preclude design defect claim. product does not contain instruction defect if it fails to instruct against unforeseeable and dangerous misuse ○ Thus. and the omission of the instructions or warnings renders the product not reasonably safe.. but ○ Do preclude warning or instruction defect claim Unforeseeable Misuse ○ Suppose some consumer tacks a bed sheet to the rose trellis and tries to use it as a hang glider ○ In general. that they should incur cost X). risk can be reduced only by not using or consuming the product al all. ○ One could say that given the proclivity of consumers. Rather. "Do not climb on this device. but manufacturer expressly instructed against it ○ E. so that reasonable consumers will know without being specifically inf ormed by seller what precautions they should take (i. remember sellers are strictly liable down the chain of distribution) • Comment I ○ "Instructions inform persons how to use and consume products safely" ○ "Warnings alert users and consumers to the existence of and nature of product risks so that they can prevent harm either by appropriate conduct during use or consumption or by choosing … • Better distinction: ○ Safety Instructions: The words used may reduce risk by inducing consumers to use or consume the product in a certain way. (it is down the chain of distribution. when the incident that harmed the plaintiff: ○ Was of a kind that ordinarily occurs as a result of product defect. suppose knife manufacturer does not instruct users. as formal matter. and actual use unforeseeable ○ Manufacturer did not intend actual use.g. and alteration are not discrete legal issues. a drug.. ○ Warnings: The words simply notify the user that certain dangers exist when the product is properly used. ladder manufacturer instructs. or a predecessor in the commercial chain of distribution. cannot be made safer at reasonable cost or consumed in a way that reduces danger.g. no duty to design against unforeseeable misuse Distinguishable Cases ○ Manufacturer did not intend actual use. e." • A seller is liable to inadequate warnings if manufacturer failed to provide adequate warnings.g. and ○ Was not.○ The user's ability to avoid danger by the exercise of care in the use of the product ○ The user's anticipated awareness of the dangers inherent in the product and their avoidability because of general public know ledge of the obvious condition of the product. they are aspects of the concepts of: ○ Defect. no duty to provide instructions against unforeseeable misuse ○ Also. "Do not grasp blade. ○ Manufacturer cannot be held liable for defective design ○ But manufacturer can be held liable for a defective warning Questions to think about: ○ Is an instruction or warning unnecessary because the danger was obvious? ○ Is a warning unnecessary because the plaintiff's conduct was an unforeseeable misuse of the product? ○ Did the risk arise because a third party altered the product? ○ Is a warning unnecessary because the risk incident to the intended use of the product was unknown and unknowable by the manufacturer when time it parted with the product? Outline Page 32 . ○ Courts generally would then hold the manufacturer liable for a defective design. and ○ Plaintiff's fault" Warnings of Irreducible Risks ○ Suppose a product. solely the result of causes other than product defect existing at the time of sale or distri bution Safety Instructions and Warnings • A product "is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor." Comment p ○ Misuse.e. • • • • • • • If consumers typically ignore the instructions. B>PL and X>PL (remember X is the consumer changing their activity) ○ Nevertheless. some courts conduct analysis of design and warnings separately. modification. X<B. ○ Causation. of spreading the loss by setting the price of the product or carrying liabi lity insurance. • "It may be inferred that the harm sustained by the plaintiff was caused by a product defect existing at the time of sale or distribution. their cost of precaution is not in fact less than the cost of alternati ve design.

warning (or instructions) must be given by the seller to expected user ○ Sometimes: ○ Warning to expected user not feasible  For example it is probably infeasible for a manufacture of a dangerous chemical who produces it in barrels to give a warning to the employees of nursery who uses the pesticide ○ Warning to expected user not effective in reducing risk to others  A cigarette lighter may likely fall into the hands of a child ○ Warning to intermediaries more effective Categories: ○ Dangerous products intended for adult use that are likely to fall into the hands of young children. Did the absence of a required. in some or all circumstances. purchased a miter saw which included a number of warnings in the operator's manual and affixed to the saw it self that stated the user should operate the saw only with the blade guards in place. ○ The physical aspects of the warning must be adequate to alert a reasonably prudent person to the danger.• • • • • • • • • • • manufacturer when time it parted with the product? ○ Is the warning that was issued inherently adequate? ○ Did the defendant convey the warning to the appropriate addressee? If any of these questions are answered in the affirmative then manufacturer will most likely not be held liable for inadequate warning. or seller may be required to notify children themselves. ○ Plaintiff. and shiel ds manufacturers of prescription drugs from liability if the manufacturer adequately warns the prescribing physicians of the dan gers of Outline Page 33 . Puzzle ○ Instructions and warnings are assessed under standard of reasonableness. ○ A simple directive warning may be inadequate when it fails to indicate the consequences that might result from failure to fol low it and. ○ Products that are distributed through learned intermediaries. adequate warning cause the plaintiff's injury--would the plaintiff have acted differently and avoided the injury if an adequate warning had been given? Hood v. which requires balancing cost of additional warning against benefit in reducing expected accident cost. Ryobi America Corp. (shifts burden on defendant to show that plaintiff would not have heeded adequate warning) Addressee ○ Normally. ○ The court held that the warnings given were adequate because a manufacturer need not warn of every consequence of not using the product safely Basically. ○ The warning must reasonably communicate the extent or seriousness of the harm that could result from its misuse. but defendant can rebut by showing that the user would not have heeded an adequate warning. ○ Seller generally required to notify only the intermediary but there are exceptions to the exception ○ Products that the manufacturer who supplies in bulk ○ Generally required to notify only the employer Learned Intermediary Doctrine Edwards v. ○ Manufacturers still place warnings to protect themselves from liability (just in case as a precaution) ○ On the other hand. ○ Plaintiff alleges that the warnings given in conjunction with the Habitrol patches were inadequate to warn her husband of the fatal risk associated with smoking and overuse of the product. ○ The warning must adequately indicate the scope of the danger.g. placing too many warnings may deter consumers to purchase product so it’s a balance. more ink) ○ Trivial ○ Label clutter: Reduce the impact of the most serious warnings ○ Significant ○ But how is this cost measured? Pittman v. a manufacturer only needs to warn that serious injury may result if used in a certain way. ○ Defendant contends that the "learned intermediary doctrine" bars liability because the doctrine only requires that the prescr ibing physicians be given complete warnings regarding the use of the patches (which the defendant complied with) ○ The learned intermediary doctrine operates as an exception to the manufacturers duty to warn the ultimate consumer. some courts have held that adequacy. ○ The means to convey the warning must be adequate Question of Fact ○ Though most courts hold that the adequacy of a warning is a question of fact. Upjohn Co. despite reading the warnings. removed the blade guards when operating the saw and consequently suffered personal injury . is a question of law Causation and the "Heeding Presumption" ○ Some courts invoke a 'heeding presumption": ○ Causation is presumed. but the manufacturer does not need to warn of the consequences of the misuse. ○ Hood contends that defendant failed to adequately warn of the dangers of using the saw without the blade guards (specifically defendant failed to explain the consequences of using the saw without blade guards. ○ Hood. ○ What is the cost of a more detailed warning? Costs of Warning ○ Direct incremental cost (e. ○ Seller may be required to notify the intended user of dangers to children. Basel Pharmacy ○ Alpha Edwards brought a wrongful death action for the death of her husband who died of a nicotine -induced heart attack as a result of smoking cigarettes while wearing two Habitrol nicotine patches. Was it even necessary to warn of this danger…it is pretty obvious that a spinning blade without the guards would be dangerous. Hood.

You may have an allegation to notify prior purchasers once a danger is discovered. A manufacturer will be held to the standard of knowledge of an expert in the appropriate field.• • • • • • • the drug. ○ Innocent . • Those who would benefit from the warning can be identified and are likely unaware of the risk. products liability. would defeat the purposes of strict liability." R3 Section 9: Misrepresentation "One engaged in the business of selling or otherwise distributing products who. A manufacturer may have a duty to warn post sale if: • The seller knows or reasonably should know that the product poses a substantial risk of harm to persons or property. Prescription Drug Resellers • Resellers of prescription drugs. This goal is not advanced by imposing liability for failure to warn of risks that were not capable of being known." ○ The court held that there was legally sufficient evidence to support the jury's verdict that decedent breached the duty to use ordinary care and was fifty percent responsible for the accident. and nevertheles.it does not matter if you had no intent and were not negligent Defenses • Contributory negligence…is not a defense when such negligence consists merely in a failure to discover the defect in the product. negligent. is a defense under this Section as in other cases of strict liability. • A warning can effectively be communicated to and acted upon by recipients. makes a fraudulent. and amounts to strict liability for failure to warn of these risks. regardless of the state of the art at the time of the s ale. ○ The court held that a consumer has no duty to discover or guard against a product defect. • The pharmacist will be strictly liable for a manufacturing defect. and to take precautions in constant anticipation that a product might have a defect.. ○ Manufacturer advertises drug to consumers? (grounds for this is when the patient does not rely on the doctor to see if they should use the drug but rather the doctor just acts as a facilitator of the drug to the patient) □ The court saw no reason that the FDA exception should not apply to nicotine patches Unknown Danger Vassallo v. and that the manufacturer breached the implied warranty of merchantability. or innocent misrepresentation of material fact concerning the product is subject to liability for harm to persons or property caused by the misrepresentation. • The current law at the time regarding the duty to warn under the implied warranty of merchantability presumes that a manufact urer was fully informed of all risks associated with the product at issue. accompanied by negligent product warnings. unlike resellers of other products. ○ "We believe that a duty to discover defects. severed an artery and bled to death. ○ Plaintiffs sued General Motors and the dealership that sold the pickup for negligence. • On the other hand the form of contributory negligence which consists in voluntarily and unreasonably proceeding got encounter a known danger.. ○ Public policy was used to justify the law at the time  The court rejects the implied warranty of merchantability. (or) assumption of risk." • Two (Three) exceptions have been recognized: ○ Mass immunizations fall outside the contemplated realm of the learned intermediary doctrine  Individualized attention may not be given by medical personnel in assessing the needs of the patient ○ When the FDA mandates that a warning be given directly to the consumer.fraud ○ There must be a reliance on that misrepresentation ○ Negligent misrepresentation . the gear shift slipped from the perched position of hydraulic neutral into reverse and rolled backwards. ○ The goal of the law is to induce conduct that is capable of being performed. and will remain subject to a continuing duty to warn (at least purchasers) of risks discovered following the sale of the product at issue. A manufacturer will now be held to the standard of knowledge of an expert in the appropriate field. or to guard against the possibility of its existence.you didn't intend to misrepresent product but you were negligent in representing product and someone relied on that misrepresentation. A defendant is not 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. Baxter healthcare Corporation • Plaintiff alleged that silicone gel breast implants had been negligently designed. Sanchez ○ Decedent mis-shifted into park when stopping his truck close to a gate." ○ Intentional misrepresentation . they are liable only if they fail to exercise due care in selling product with design or warning defect. ○ When decedent walked toward the gate. ○ Decedent got caught between the truck and the gate and in struggling to free himself. ○ If the user or consumer discovers the defect and is aware of the danger. in connection with the sale of a product. Outline Page 34 . but a consumer's conduct other than the mere failure to discover or guard against a product defect is subject to comparative responsibility. and gross negligen ce based on the defect in the truck's transmission. and • That the "risk of harm is sufficiently great to justify the burden of providing a warning. • R3 Section 17: Apportionment ○ See angel ○ Comment a ○ Comment d General Motors Corp. A manufacturer will remain subject to a continuing duty to warn (at least purchasers) of risks discovered following the sale of the product at issue. ○ "the reasoning behind this rule is that 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. v. are not strictly liable for harm caused by defective des ign or warning.

Ryobi ○ The printing press where plaintiff was employed had been modified by removing the guard and disabling the interlock switch th at would allow the press to run without the guard in place. Foreseeable. the manufacturer and seller are relieved o f liability EVEN IF THE MODIFICATION IS FORESEEABLE. ○ The court rules this way because slapping a warning on product (warning of foreseeable modifications) is much cheaper than designing a product that alleviates the risks of modification. So this would be an exception to Robinson. ○ Plaintiff seriously injured her hand when she caught it in the moving parts of a press. before the modificati on. if you create a product that is unusable unless the safety feature is removed. whether it is barred in this case is appropriately addressed by Second Circuit in light of the substantive law question we have now resolved. • Express Assumption of Risk ○ Some courts refuse to enforce them in products liability cases ○ Other courts enforce them • Disclaimers generally do not bar a plaintiff from a products liability action Work-Related Injuries • Workers injured on the job can generally sue third parties they believe violated tort obligations toward them. holdings: ○ Manufacturer can be held liable under failure to warn theory for risks posed by foreseeable modifications of a product in cases in which the substantial modification defense might otherwise preclude a design defect claim ○ Because failure to warn liability is intensely fact specific. Uniform Rule: No liability under design or warning defect theory 2. rather than more expensive one-way screws? ○ What if the two kinds of screws cost the same amount? ○ In New York. Liriano v. ○ He lost his right hand and lower forearm when his hand was caught in a meat grinder manufactured and sold by defendant. ○ She sued the manufacturer and distributor of the press alleging negligence and strict product liability for defective design. which can be removed. Majority: Liability possible under design and warning theory (so you have to design a product applying the cost -benefit analysis taking into account the foreseeability of modifications) 3. MO: No liability (at least under design defect) b. not a defect existing when the press was sold. MO: ? b. Hobart ○ Liriano. that is. under theories of negligence and strict products liability for defective product desig n and failure to warn. a 17 year old.. ○ The safety guard had been removed from the grinder while in the possession of the grocery store and there was no warning on t he grinder about the danger of using it without a guard. we do expect the reasonably prudent driver to take safety precautions to prevent a runaway car. ○ "although we do not expect the average driver to have the engineering background to discover defects in their car's transmission. • Modification (3 possibilities) 1. Intended ("Purposeful") (and foreseeable) a. Unforeseeable a. ○ Hobart impleaded Super ○ Product modification took place in the hands of the grocery store but not by the plaintiff himself ○ Plaintiff alleges a design defect theory and a failure to warn theory ○ Robinson: Manufacturer not liable under defective design theory for injures resulting from substantial alterations or modifications of a product by a third party that render the product defective…. plaintiff's recovery can be reduced as subject to comparative responsibility. ○ Plaintiff did not submit sufficient evidence to show that press was unsafe as originally sold. ○ Liriano sued Hobart. ○ Lopez: Plaintiff may recover for injuries suffered as a result of removing a safety feature if the product is purposefully manufactured to permit its use without the feature. you can be held liable ○ Back to Liriano. ○ The court held that the defendants were not strictly liable because plaintiff's evidence showed a third party's modification. The fact that the precautions demanded of a driver generally would have prevented this accident does not make decedent's negligence a mere failure to discover or guard against a mis-shift. but Unintended a.a manufacturer's duty does not extend to designing a product that is impossible to abuse or one whose safety Outline Page 35 ." • So if plaintiff's conduct takes any form other than failing to discover or guard against a defect. when a third party's modification makes a safe product unsafe. was the sole cause of her injury. Decedent had a responsibility to operate his truck in a safe manner.ordinary care and was fifty percent responsible for the accident. the manufacturer. Jones v. ○ "Jones failed to meet her burden because her evidence showed the press had been substantially modified by removing the safety guard and disabling the interlock switch. NY: Liability possible under design (or warning) theory c. ○ So when is a product purposefully manufactured to permit its use without the feature? ○ What if a manufacturer attaches a safety guard with conventional screws. NY: No liability under design theory. liability possible under warning theory c. was employed in the meat department of a grocery store." • Majority: ○ Under Missouri law. Majority: Liability possible under design (or warning) theory Why in New York can a manufacturer not be held liable under a design defect theory for modifications that are not "purposeful" but are foreseeable? • Court's Answer: Robinson . and showed the modification caused her injury.

the employee generally cannot recover more than the full amount of her damages ○ Further. So the employer is liable for a greater spectrum of injuries under WC but for less amount than a tort claim. the hospital has given the patient a tangible material (the prosthetic) and billed the patient for it. • Workers compensation does not include pain and suffering. ○ Plaintiff alleged that CMC "was strictly liable because it had sold a prosthesis with a design defect that was in an unreason ably dangerous condition. ○ This.  Thurs. 3. Suppose: • Employee receives workers' comp benefits • Employee sues third party and recovers damages • Third part seeks indemnification or contribution from the employer ( you the employer allowed the employee to get hurt) 1. and ○ The social utility of requiring. • Here. The court appears to view the Outline Page 36 . the defendant. Third party pays the rest of the tort award 4 is a lot simpler than 3 Beyond Products Royer v.but is not exposed to greater liability than that specified by the workers comp system. Implications of this approach i. employer pays the workers comp. ○ The existence and efficacy of other protections. Eliminate the employer's lien (or right of subrogation) against the employee's tort award. however. and  The employer (or carrier) pays nothing. including the employer. a negligent employer pays no compensation for the injuries ○ In all:  The employee is denied double recovery. The question should you be held liable for not designing a product MOR E resistant to foreseeable modifications not to design a product that is resistant to all modifications. under the majority approach. usually for a fraction of tort damages. part of tort award. ○ The reliability of employers to warn their employees. employee gets tort award. ○ But a negligent employer may have to pay more than the worker compensation scheme deems appropriate. 4. but only up to the amount of the employer's financial exposure to pay workers' compensation benefits. Employer does have to pay an amount up to the workers' comp benefits . the health care provider is not "engaged in the business of selling" prostheses for purposes of strict products liability. Catholic Medical Center ○ Catholic Medical Center. This is why WC provides less benefits than a tort claim. and b.a manufacturer's duty does not extend to designing a product that is impossible to abuse or one whose safety features cannot be circumvented. 2) Complex calculations are necessary to work out the appropriate reductions and setoffs whenever tort claim is settled.foreseeable? • Court's Answer: Robinson . • Bulk Supplier and Warnings ○ Factors in Texas ○ The likelihood of serious injury from a supplier's failure to warn. ○ The prosthetic knee turned out to be defective and P underwent a second operation to remove the old prosthetic and plant a ne w one. where full workers' comp benefits have already been paid. The employee can not recover against the employer in tort. 2. ○ However. thereby requiring the employer to pay its full proportionate share of the tort judgment. ○ But the employer (or insurance carrier) has a lien for its worker compensation payments that it will satisfy from the employe e's tort recovery. some states prohibit suits against co -workers. ○ The feasibility and effectiveness of a supplier's warning.the employer does not escape scot-free . or not requiring. to this extent. Reduce the tort award against the third party by the amount of worker comp benefits. the systems are not mutually exclusive. ○ The burden on the supplier of giving a warning. So basically. Majority Approach: Most states will not allow a third party found liable in a tort action brought by an employee to recover any compensation from the employer. suppliers to warn • Meshing Worker Compensation and Tort ○ Employees can recover against parties other than the employer through the tort system despite recovery though workers' compensation. ○ In a few states suits are barred against any third party who is contributing to the compensation system." ○ The defendant moved to dismiss arguing that it was not a "seller of goods" for purposes of strict products liability. Require employer to contribute a share of the damage award against the third party in proportion to its relative fault. But here are two problems: 1) Introduces an additional and expensive contest over the employer's fault into the dispute between employee and third party about the safety of a product. so that a. provided and implanted a prosthetic knee on Plaintiff. Uniform Product Liability Act: State workers' comp statutes are altered to provide for the following: a. ○ Let third party assert the workers' comp payment as a setoff against the employee's tort claim against it. does not actually answer the question. but  The entire amount of compensation is paid by the third party. Some jurisdictions apply a new tort approach and apportion burdens of compensation among all negligent actors. ○ The court held that where a health care provider in the course of rendering health care services supplies a prosthetic deviceto be implanted into a patient. even if he was negligent in allowing the employee to use the third party's product.

She performs the operation as well as humanly possible. you would have to sue the manufacturer to assert strict liability. • In N. the hospital has given the patient a tangible material (the prosthetic) and billed the patient for it. the hospital is in the business of providing services.. not selling products. defendant m ay argue that the shop was not in the business of selling replacement tires. Transamerica Delaval Inc.H. ○ Whether a cause of action in tort is stated when a defective product purchased in a commercial transaction malfunctions. it provides a service.. Not a product. (3) In a proper case any incidental and consequential damages under the next section may also be recovered. Majority land-based: Tort liability not available if defective product injures merely itself and thereby causes purely monetary harm -. From Royer. In N. Does "strict liability" me an that the surgeon is liable for wrongful death? ○ No strict service liability • Arguments for "Strict" service provider liability ○ Supplier has more info about service quality than consumer ○ Physician is in better position to improve quality ○ Patient's reliance on doctor's skill is even greater than the purchaser's reliance on the manufacturer's skill ○ Plaintiffs have difficult time proving negligence of physicians ○ Hospitals and doctors can spread risk of loss better than can patients • Imposing a standard of strict liability on services would cause an increase in the price of services. that the best medical option is surgery. UCC section 2-715 (2) Consequential damages resulting from the seller's breach include (a) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had r eason to know and which could not reasonably be prevented by cover or otherwise.H. is a bicycle retailer liable for sale of a bicycle that contains a design defect? ○ No.H. and you die. This doesn't seem to mesh with Royer however because the hosp ital is not in the business of selling any products • In N. is a bicycle retailer liable for sale of a replacement tire that contains a manufacturing defect? ○ Yes.relief is confined to warranty and contract 2. Minority land-based (majority in admiralty): Tort liability available when defect injures only product itself. the hospital has given the patient a tangible material (the prosthetic) and billed the patient for it. whether or not defect endangered others.products liability. (when will a product endanger someone…who knows) • Minority land-based position fails to "account for the need to keep products liability and contract law in separate spheres and to maintain a realistic limitation on damages. ○ The charterers' brought tort claims for the cost of repairing the ships and for income lost while the ships were out of servi ce. ○ Defendant Delaval made and sold turbines to plaintiff charterers that turned out to be defective causing damage to the turbin es themselves. and that there is a 90% chance that the surgery will fail. Those providing services would be held to a higher standard than even ordinary negligence. • Here. Intermediate: Tort liability available if and only if defective product endangers users (analogous to zone of danger discussed for emotional distress) 3. the hospital is in the business of providing services. The court appears to view the prosthetic as a product but this is incidental to the services the hospital offers. not in N. • Essentially. • One argument is that the prosthetic was not a product • The other argument is that the prosthetic was a product but the hospital was not in the business of selling prosthetics • Although an architect produces designs. • Here.H. Differences between tort and warranty (contract) actions • Measure of damages? • Privity? • Ability to limit damages? Court's Rationale: • Intermediate positions too indeterminate to allow business planning. v. • Cost of repairing turbines. • Essentially. unless special circumstances show proximate damages of a different amount. ○ The court held that their was no cause of action in tort.." UCC section 2-714 (2) The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted. inju ring only the product itself and causing purely economic loss. and • Profits lost while ships were out of commission Competing Approaches 1. The court appears to view the prosthetic as a product but this is incidental to the services the hospital offers. • Court adopts the majority land-based approach. not selling products. Intersection of Tort and Contract East River Steamship Corp. the bicycle retailer is in the business of selling bikes and is down the chain of distribution. • Why not impose strict liability on the seller of services? Suppose a physician accurately states that you have cancer. and (b) injury to person or property proximately resulting from any breach of warranty Outline Page 37 .

contrary to East River • • • • Saratoga's Response • Majority: the relevant relations among initial users. Construct wage profile based on current conditions ○ Assume P is 55 year old laborer in Chrysler assembly plant with 20 years experience at time of accident and judgment ○ Salary increases with seniority ○ P expected to retire at age 65 ○ P earns 50. (Hedonic) 2. Run…of even kind. then a user might recover against the product manufacturer formajo damage a defective component causes the manufactured product. and labeled. Hypothetical A manufacturers a boat and sells to B B installs a skiff and sells to C Boat sinks because of defect Can C recover against A and/or B for loss of skiff? ○ C can recover against A and B for loss of skiff because skiff is "other property" under East River • Respond to this argument against allowing recovery for loss of the extra equipment: If a subsequent user can recover against the original seller for damage a defective product causes to property added by the initial user. Pecuniary loss i. Past 1) Lost earnings 2) Medical expenses 3) Economic value of household contributions ii. packaged. quality and quantity e. The same cannot be said in tort law. • Tort law tends to interfere with the arrangements between the seller and user. Compensatory a. Such as a car Outline Page 38 . a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind… (2) Goods to be merchantable must be at least such as: a. Future 1) Lost earning capacity 2) Medical expenses 3) Economic value of household contributions b. make adjustments to reflect real utility of present income a. UCC Section 2-315: Implied Warranty of fitness for Particular Purpose ○ Applies to an unusual purpose (as opposed to ordinary in 2-314) of the goods UCC Section 2-316 Section (3)(a): all implied warranties can be excluded with wording such as "as is" UCC Section 2-313: Express Warranty (a) affirmation of fact or promise (b) any description of the goods which is made part of the basis of the bargain c UCC Section 2-316(1) ○ With respect to express warranties. Are fit for the ordinary purposes for which such goods are used d. and (b) injury to person or property proximately resulting from any breach of warranty A seller can put limitations on their liability in a warranty. In the case of fungible goods. Nonpecuniary loss i. but limitation is inoperative to the extent that the construction Is unreasonable. language creating the warranty and that tending to limit it should be construed as consis tent whenever possible. Add fringe benefits i. manufactures. Punitive Lost Earning Capacity: Step One 1.000 per year ○ P earns no other income Step Two 2. Pain and suffering ii. Pass without objection in the trade b. are of fair average quality c.know and which could not reasonably be prevented by cover or otherwise. Are adequately contained. and f. and component suppliers are typically different from those at issue here UCC Section 2-314: Implied Warranty of Merchantability (1) Unless excluded or modified (2-316). For each year. Conform to the promises or affirmations of fact made on the container or label if any… • Privity is a requirement under this section…. DAMAGES Outline of Damages 1.

Supreme Court in Pfeifer expressed preference for real interest rate method Expected Net Income Discount Rate used Outline Page 39 . say $100.000 not 50. salaries will rise accordingly v.S. identify the costs plaintiff was bearing because of working (uniforms. a dollar is worth more to a person if he has it today than if he will have it in the future • If a person would receive. treasury bond is 10% Inflation component 8% Real cost of riskless capital 2% • Market interest rate ○ Use discount rate of 10% ○ Increase salary by 8% for inflation • Real interest rate ○ Use discount rate of 2% ○ Do no increase salary inflation Which Method? • Method chosen does not matter as long as adjustments to (1) discount rate and (2) anticipated income are symmetrical. • Discounting a future sum to present value is the analytical flip-side of awarding pre-judgment interest on a past sum. Multiply by probability of avoiding lay-off iii. gas money) and subtract those. • (so in other words. and future salary must also be increased to reflect inflation Real Interest Rate • Calculate real interest rate-net of (a) risk and c inflation-and use it as discount rate • If real interest rate is used as discount rate. Adjust for changes in job category if not speculative (there must be enough evidence to support the assertion that you would have been promoted.a. Methods of discounting to Present Value • Use market interest rate as discount rate or • Use real interest rate as discount rate Market Interest Rate • Three Components ○ Risk Premium  Plaintiff is entitled to a riskless investment. productivity increases. present value decreases • Present value of lost earnings of 25. Multiply by actuarial probability i.000. do not increase salary for inflation Suppose market interest rate for U. Multiply for expected productivity gains 1) If economy is predicted to grow. so the tortfeasor only has to take a burden of precaution of 30.000 the tort feasor only has to pay 30. So now that the plaintiff can't work. • Still. in the future.g. the discount rate will include inflation. Or free food b. U. Perhaps adjust for inflation □ Depends on method of discounting to present value Interlude: Discounting to Present Value • Because of the time-use value of money. Step Three 3. Subtract employment-related costs avoided i. make adjustments to reflect probable changes over time a. Identify the probability that the plaintiff may die before retirement and adjust wages accordingly ii. Subtract taxes (so victim is not overcompensated. Such as a car ii. The government is b earing the loss in taxes) c. but underdeterring the tortfeasor because instead of paying 50. government bond) ○ Market interest rate for this instrument will reflect only "b" and "c" Effect on Income Adjustment • If market interest rate is used to discount to present value. See bullet point below ○ Real opportunity cost of capital ○ Anticipated inflation • Eliminate the risk premium by using a riskless investment instrument (e. he must be given less than $100 now to make him whole ○ He could invest the amount and earn interest • The entitlement to $100 in the future must be discounted to present value. Add fringe benefits i.000 per year for 10 years …. For each year.S. how much do we have to pay you today so that in five years it would equal the amount we have proposed you would have made in that year) Present Value Example • As discount rate (an interest rate) increases. not just the fact that you were a good worker and it seemed likely) □ Such as a job promotion (salary increases) iv. Plaintiff may die.000.

" ○ N.Y. The legal system is better off not allowing recovery • Proper jury instruction? Suppose nonpecuniary damages will be awarded. • There are two issues: Outline Page 40 ." ○ Also. ○ The problem with this is how do we identify similar cases? • Awards for future pain and suffering generally not discounted to present value ○ Is this sensible?  Yes because pain and suffering is so speculative that it does not make much sense to discount pain and suffering to present value.constitutes a prima facie case for remittur or additur by the trial judge or reversal by the appellate court. when plaintiff used a mathematical formula to calculate damages for pain and suffering. humiliation as a result of being disfigured and being permanently crippled. Los Angeles Transit Lines ○ Plaintiff was in the process of entering defendant's bus when the doors closed suddenly catching her right hand and left foot . McDougald v.75%) of prior awards of a similar nature should be given "presumptive" validity  Unexplained outlier . disabling and permanent injuries. were excessive. ○ The parties disagreed as to whether plaintiff had the requisite level of awareness to support recovery for pain and suffering . How is the jury instructed? ○ The court in Seffert did not reveal how to instruct jury. the middle range (25% .an award in the top or bottom quartile .  The court held that while the amount of the award is high.Expected Net Income Increase for inflation Discount Rate used Market interest rate Do not increase for inflation Real interest rate Step Four 4. painful. especial ly for pain and suffering. ○ "In the instant case.  Thus. Garber ○ Plaintiff was left in a "permanently comatose condition" due to the defendant's malpractice ○ Plaintiff sued and the parties agreed that plaintiff could recover for the usual pecuniary damages but that the plaintiff cou ld not recover damages for conscious pain and suffering unless she were found to have been aware of experiencing them. and constant anxiety and fear that the leg will have to be amputated. ○ She was crippled and will suffer pain for life. plaintiff has undergone nine operation s and has spent eight months in various hospitals and rehabilitation centers) ○ Defendants did not challenge evidence of liability but rather they allege that the damages awarded to the plaintiff. Add together the present values of each future adjusted income amount Seffert v. Plaintiff is able to produce an award in their favor by changing the amount per day or the number of days to consider • Risk analysis? ○ As probability of death increases the amount rewarded increases non -linearly. the defendant did not object. (Since the accident and because of it. assign it as misconduct or ask that the jury be admonished to disregard it and as a result the point was waived and cannot be raised on appeal • Are nonpecuniary (pain suffering) damages recoverable? ○ Arguments for recovery  Individuals are not wholly compensated: leads to under-deterrence (tortfeasors do not have to pay as many damages) ○ Arguments against recovery  It is difficult to quantify pain and suffering. • Compare to awards in "similar" cases? ○ Tell jury that if it wants to make an award in the top or bottom quartile of past results it must justify that result by poin ting to facts in its case that tilt the outcome to the high or low side of the range. Statute: Award "deviates materially from what would have been reasonable compensation" Monetary Guides to Aid Jury • Per diem? (could we say nonpecuniary damages are 100 dollars a day and we expect the pain to continue for the next 20 years) ○ Should plaintiffs be allowed to use a per diem approach?  Plaintiffs like this approach because it will likely lead to a larger reward. particularly to her left foot. • There are two elements of pain and suffering: ○ Physical Component ○ Emotional component  Embarrassment/humiliation  Fear • Should these elements be divided into two separate actions? ○ It is difficult to quantify emotional pain • Standard of appellate review? ○ Seffert: Award "shocks the conscience and necessarily implies that the verdict must have been the result of passion and prejudice. it could not say as a matter of law that it is so high that it shocks the conscience and gives rise to the presumption that it was the result of passion or prejudice on the part of the jurors. the nonpecuniary items of damage include allowances for pain and suffering. It doesn't make much sense to discount something imprecise in a precise manner. It is difficult to quantify and therefore difficult to instruct. past and future. Calculate the present value of each future annual adjusted income sum by applying discount formula Present Value of $1 is 1/(1+r) n where r=discount rate n=number of years at issue Step Five 5. ○ The bus started and dragged her some distance before throwing her to the pavement ○ Plaintiff suffered serious. This ultimately leads to higher administrative costs.

• The court held that an award for damages for loss of enjoyment of life to a person whose injuries preclude any awareness does not serve a compensatory purpose. the distortion will be amplified by repetition.  These actions are always governed by statute Non-Wage Earners • Homemaker ○ Pecuniary damages can be awarded for the homemaker's services around the home ○ Courts will allow evidence such as how good a cook the homemaker was in order to decide the amount of damages ○ Courts may evaluate opportunity costs. their own suffering (their own nonpecuniary loss). which view leads to the most accurate reward of full compensation Relevance of victim's awareness: ○ Majority would require some awareness for recovery of damages for pain and suffering. one for pain and suffering. Those courts will only al low for loss of companionship damages. The pro blem is that this is highly speculative ○ Some courts will not allow lost income damages for what a child "was going" to make in the future. So if an attorney decides to give up practice and become a homemaker…the opportunity cost is the difference between the money he would have made as an attorney and the monetary worth of his services. The majority has no argument there. the person lost their enjoyment of life. Who has the better argument? Only five states permit loss of enjoyment of life as a separate award Death Cases ○ Survival actions  "Loss of life" damages ambiguous  Representative can recover for the pain and suffering of decedent ○ Wrongful death actions  Beneficiaries recover for their own loss from the death (what income were they deprived of because of the decedent's death)  Cannot recover for the pain and suffering of decedent. Even if this is true that does not necessarily mean that the larger reward is less accurate. including hedonic damages. there would be two awards: one for pecuniary damages and one for pain and suffering which includes loss of enjoyment of life ○ Dissent would allow pain and suffering to be recovered as one category and hedonic damages to be recovered as separate catego ry. Such as loss of companionship. ○ The dissent takes its own view on hedonic damages saying that awareness doesn't matter with loss of enjoyment of life. Outline Page 41 . If anything. Rubric for recovery: ○ Majority would allow hedonic (loss of enjoyment of life) damages to be recovered but only as an element of pain and suffering  Under majority. Regar dless of awareness. and one for loss of enjoyment of life The majority argues that separating loss of enjoyment of life as its own award will lead to larger rewards for the plaintiff. And that cognitive awareness is a prerequisite to recovery for loss of enjoyment of life but t hat a fact finder need not sort out varying degrees of cognition. ○ Courts have struggled with this topic • Employer ○ Could employer recover lost wages from the death of an employee ○ The loss is going to be the marginal value of the services provided by the employee and the costs of finding and training a n ew employee ○ The general rule is that an employer cannot recover for the loss of an employee  The justification for that was that it treats the employee like chattel Collateral Source Rule • Benefits received by the plaintiff from a source other than the defendant (i.  So can beneficiaries recover for any nonpecuniary damages?  Yes. ○ That excessive damages would be awarded if separated.e." ○ Its punitive not compensatory • The court also held that loss of enjoyment should not be considered a category of damages separate from pain and suffering. ○ The majority feels that "suffering" can easily incorporate the frustration and anguish associated with loss of enjoyment of life. So a court may conclude that his services as a homemaker must have been worth his salary has an attorney because it was worth giving up his practice • Children ○ Plaintiff would argue that the child would have grown up to make a lot of money and they should be entitled to that. He cannot experience the pleasure of giving it away. but not for (2) hedonic damages  So the dissent agrees with majority in that awareness is necessary for pain and suffering but differs for hedonic damages ○ Both sides agree that a person must have awareness in order to experience pain and suffering. ○ An award for loss of enjoyment of life " cannot provide such a victim with any consolation or ease any burden resting on him…He cannot spend it upon necessities or pleasures.. ○ An award of money damages in a circumstance where the victim has no cognitive awareness has no meaning or utility. ○ Dissent would require awareness for recovery of (1) pain and suffering damages.  So under dissents view there would be three separate awards: one for pecuniary damages.  As evidenced by plaintiffs arguing for separate categories ○ Breaking down nonpecuniary damages into component parts would not make the award more accurate. So the question becomes. a "collateral" source) as a result of the tort do not reduce the defendant's liability.• • • • • • • • There are two issues: ○ Whether an award of damages for loss of enjoyment of life to a person whose injuries preclude any awareness of the loss serves a compensatory purpose ○ Whether loss of enjoyment of life should be considered a category of damages separate from pain and suffering.

Wells ○ Plaintiff was injured in a rear-end collision. had been Outline Page 42 . they will no longer give them ○ The rule partially serves to compensate for the attorney's share and does not actually render "double recovery" ○ Pain and suffering damages are hard to calculate so plaintiff probably wouldn't be receiving "double recovery" In those insta nces.000 after paying attorney's fees. then family members would not want to give gifts because that would help the tortfeas or by reducing the amount they must pay the plaintiff. Account for losses suffered by those with incognizable injuries a. Stille. • Justifications? ○ Helps to insure full compensation  Plaintiff has to pay attorney's fees. Collateral Source Rule will allow the plaintiff to receive more money… ○ Creates incentives to engage in value -increasing conduct  It creates an incentive for people to buy insurance Arambula v. may collateral source recover its payment from plaintiff's tort recovery?  i. So if compensation is determined to be $100. Induce market transactions where wrongdoing constitutes pure coercive wealth transfer a. Superior Court Defendant. so that his liability is reduced? Arambula tells us no ○ If the defendant's liability is not reduced. Account for probability of apprehension and sanction that is less than 1 3. ○ So by taking away the incentive to provide those gifts. Incentive for market transactions and not just "taking" someone elses property 4.800 weekly salary ○ Plaintiff sought recovery for lost wages from the defendant. ○ He was employed in a family-owned business and despite missing work because of his injuries.. does collateral source have right of subrogation? Punitive Damages Economic Justifications for punitive damages 1. he continued to receive his $2. • Plaintiff's needs ○ Gratuitous  In Kind (in kind benefits are services provided they may be given a monetary worth) □ Majority: Rule Applies □ Minority: Rule Does NOT Apply (offset)  Money □ Rule Applies if donor intended to benefit victim ( Arambula) ○ Contractual (such as insurance)  Rule Applies in both cases (no offset) ○ Governmental  It is unclear. Lets someone recover more than full compensation because of these "incognizable" injuries 2. or from utilizing sick time or vacation time.e. ○ The Plaintiff relied on the collateral source rule which allows a plaintiff to recover full damages even if they already rece ived compensation for their injuries from such "collateral sources" such as medical insurance.defendant's liability. pension. often about a third of the award. Create more efficient civil alternative to criminal prosecutions of minor crimes Adjustment for Probability < 1 S = L/p Where: S = Sanction (penalty) L=Victim's loss p=Probability of apprehension and sanction Expected sanction from wrongdoing = p(S) Taylor v. The Rule has applied in some cases but not others. ○ Further the defendant argued that the plaintiff failed to provide any documentation or demand that the monies received from h is employer will be required to be reimbursed. ○ The defendant argued that the plaintiff should not receive damages for lost wages because he received payments by means other than disability insurance.  The difficulty of quantifying pain and suffering may lead to a plaintiff not receiving an award that is fully compensating. had a history of driving while intoxicated (he had previously caused a serious accident while driving drun k.  The court held that the gratuitous payment plaintiff received would not offset his tort recovery • Gratuitous payments from employer in lieu of wages are subject to the collateral source rule and do not offset the defendant's liability • Gift presumptively given for benefit of donee (victim) ○ Presumption can be rebutted by showing that donor's intent was to benefit tortfeasor Question • Why does application of collateral source rule to gratuitous payments promote the interests served by the rule? ○ If the gratuitous payment didn't apply. Notes • Collateral source rule functions both as substantive rule of damage liability and as rule of evidence • Can distinguish between two questions: ○ Should the defendant receive the benefit of the payment form the collateral source.000 the plaintiff will not actually get the $100.

• Comparative Fault ○ Majority view: In a comparative fault state. liberty." • Equal protection ○ E.  Agent was acting in a managerial capacity and within the cope of employment. Oberg. ○ Plaintiff sought compensatory and punitive damage alleging that Still had "acted with a conscious disregard" for plaintiff's safety ○ Defendant moved to dismiss the claim for punitive damages  The court held that because of the rules on assessing damages. ○ It is generally accepted that an award of punitive damages could be based upon a finding of defendant's conscious disregard of the safety of others. to deter similar future conduct…" Section 3294 of the Civil Code authorizes the recovery of punitive damages in noncontract cases 'where the defendant has been guilty of oppression. Some justice s say there is no such thing as a right to substantive due process. Such as deliberately designing a product that would cause severe injury Potential Constitutional Constraints on Punitive Award 14th amendment: • "nor shall any State deprive any person of life. Outline Page 43 . or such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton. plaintiff's punitive award should not be reduced to reflect any fault by plainti ff.. wanton. fraud. express or implied.. punitive damages may be imposed only on out -of-state residents • Procedural Due Process ○ E. had been convicted of numerous DUIs) ○ Plaintiff was seriously injured in a car accident with Stille while Stille was driving under the influence of alcohol. ○ It is clear from the defendant's prior behavior that he consciously disregarded the safety of others. had a history of driving while intoxicated (he had previously caused a serious accident while driving drun k. That the conduct of the defendant is willful. or  Employer ratified or approved of the act • Punitive awards are not permitted in cases of death ○ If tortfeasor dies or plaintiff dies. 909 : Punitive damages can be awarded against the employer only if::  Employer authorized the doing and the manner of the act:  Agent was unfit and the employer was reckless in employing him. or malice. 1994) • Substantive Due Process ○ The idea of basic fairness. Does drunk driving justify punitive damages? Why would it ever be appropriate to permit both punitive tort damages and criminal sanctions for the same conduct There are two economic justifications for permitting punitive damages for drunk driving: ○ Account for losses suffered by those with incognizable injuries ○ Account for probability of apprehension and sanction that is less than 1 There has to be circumstances of aggravation in order to award punitive damages The dissent says we should not impose punitive damages unless it accomplishes something beneficial: ○ And the dissent says it does not because punitive damages would not deter drunk driving ○ It won't deter them because the person will already be facing strong criminal penalties so that the tort punitive damages wou ld be trivial The flip side of this is…every little bit would help to deter. or in reckless disregard of the plaintiff's rights.g. This raises the question. why have both criminal sanctions and punitive tort sanctions? How do you combine the civil system and criminal system in this case? If the optimal punitive penalty is achieved in the civil suit…what criminal penalty should be imposed? Double penalties become a problem here Is there any harm in allowing the recovery of punitive damages in simple tort cases? ○ It forces people to take too much precaution Typical Statute • Punitive damages may be awarded when: a. • "nor deny to any person within its jurisdiction the equal protection of the laws. without due process of law.g. Its just not fair to impose a punitive damages award of $100 million to plaintiff. the goal of deterrence. • Employer liability ○ Some states hold that punitive damages flow with vicarious liability ○ Restatement 2d s. There is clear and convincing evidence b. lost consortium) because injured p arty was able to recover such damages in main case. such as spite or 'malice. Stille.' or a fraudulent or evil motive on the part of the defendant. punitive awards are generally not rewarded • Cannot get punitive damages against a governmental entity • You can get punitive damages from a products liability case but there needs to be circumstances of aggravation.' Punitive damages are awarded when there are circumstances of aggravation or outrage. namely. and the overall severe threat that intoxicated drivers pose to the public. appellate court not permitted to review size of punitive award ( Honda Motor v. ○ "The allowance of punitive damages in such cases may well be appropriate because of another reason.g. plaintiffs are allowed to seek punitive damages against intoxicated drivers.• • • • • • • • • • • • • ○ Defendant. or property. • Derivative Cases ○ Some courts hold that punitive damages should not be recoverable in derivative cases (e.

to a significant degree.BMW: Constitutional (Substantive Due Process) Guideposts for awarding punitive damages: 1. Campbell's insurance company.  Campbell then obtained his own counsel to appeal the verdict  Pending the appeal. in Oregon st ate court alleging negligence and deceit. Insurance • Demand for Insurance Risk aversion: Outline Page 44 . in the usual case. injury that it inflicts upon those who are. Harm to others can only be used to show reprehensibility of the defendant. ○ Ospital's beneficiaries and Slusher brought a wrongful death and tort action against Campbell and early investigations suppor ted the conclusion that Campbell had caused the crash. In exchange the Campbells agreed to pursue a bad faith action against State Farm and be represented by Slusher's and Ospital's attorneys.  Instead." Philip Morris (2007) ○ Representative of Jesse Williams. State Farm Mutual Automobile Insurance Co. the court stated that the trial court incorrectly used this particular case as a platform to expose and punish the perceived deficiencies of State Farm's operations throughout the country. The agreement included that Slusher and Ospital would receive 90% of any verdict against State Farm. ○ State Farm. ○ The court admits that State Farm's handling of the claims against Campbell merits no praise but a more modest punishment for their reprehensible conduct could have satisfied the State's legitimate objectives.849 (much more than the amount offered in settlement)  State Farm initially refused to cover the excess liability. and the Campbells reached an agreement where Slusher and Ospital agreed not to seek satisfaction of their claims against the Campbells.. • "Few awards exceeding a single-digit ratio between punitive and compensatory damages. □ The tortious conduct evinced an indifference to or a reckless disregard of the health can safety of others. ○ Ospital ended up colliding with a third vehicle driven by Slusher ○ Ospital was killed and Slusher was rendered permanently disabled.  "A State cannot punish a defendant for conduct that may have been lawful where it occurred"  "Nor. i. trickery. ○ The court held that under the three guideposts of Gore." ○ Plaintiff argued that harm to others is relevant to reprehensibility. 2.  When determining this. Ospital. Cooper Industries (2001) • "Courts of appeals should apply a de novo standard of review when passing on district courts' determinations of the constitutionality of punitive damages awards. sued Philip Morris. or deceit.e."  In other words it is constitutionally impermissible to allow juries to consider harm done to strangers when considering a punitive award." • Gore offers three guideposts when reviewing punitive damages: ○ The degree of reprehensibility of the defendant's misconduct. Degree of reprehensibility of defendant's conduct. and so was particularly reprehensible. will satisfy due process. was forced to swerve off the road to avoid a head -on collision with Campbell. □ The target of the conduct had financial vulnerability.e. Ratio of punitive award to actual or potential harm inflicted on plaintiff. the Utah courts." ○ "We therefore conclude that the Due Process Clause requires States to provide assurance that juries are not asking the wrong question.. courts should consider whether: □ The harm caused was physical as opposed to economic. The upper courts must decide for themselves. • So what this is telling us is that there is a constitutional constraint on punitive damages but the lines are blurry as to what these constraints are. decided to contest Campbell's liability and declined offers by Slusher and Ospital to settle the claims for the policy limit of $50. strangers to the litigation. it was error to reinstate the jury's $145 million punitive damages award and that a punitive award in this case should be at or near the amount of compensatory damages. ○ The disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award. Slusher. or mere accident. ○ But "a jury may not go further and use a punitive damages verdict to punish a defendant on account of harms it is alleged to have visited on nonparties. v. essentially. not simply to determine reprehensibility. i.000 (25."  "Any proper adjudication of conduct that occurred outside Utah to other persons would require their inclusion. manufacturer of Marlboro.000 to each)  The case went to trial and a jury determined Campbell was 100 percent at fault and a judgment was returned for $185." ○ So the no deference should be given to the trial court. • Generally state may not impose punitive damages to punish a defendant for unlawful acts committed outside of jurisdiction. ○ Procedural due process "forbids a State to use a punitive damages award to punish a defendant for injury that it inflicts upo n nonparties or those whom they directly represent. Campbell ○ Campbell was driving with his wife and decided to pass six vans traveling ahead on a two -lane highway ○ Ospital. No bright line rule 3. and. would need to apply the laws of their relevant jurisdiction. and a. as a general rule.  Evidence of actual harm to nonparties can help to show that the conduct that harmed the plaintiff also posed a substantial risk of harm to the general public. who was traveling the opposite direction. and ○ The difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable c ases. does a State have a legitimate concern in imposing punitive damages to punish a defendant for unlawful acts committed outside of the State's jurisdiction. a heavy smoker before his death. and □ The harm was the result of intentional malice. □ The conduct involved repeated actions or was an isolated incident. but also to punish for harm caused strangers. to those parties. Difference between punitive award and civil or criminal penalties that could be imposed for comparable misconduct. seeking.

what may be risk to you is actually a certainty to t hem.000. Porter Leasing Corp ○ Frost was injured in a motor vehicle accident ○ He sued the other driver for medical expenses incurred. they will want to purchase insurance in order to know with certainty if an event happens. Therefore there is now an increased risk that the house may burned down. those at 6% are actually saving money on their premium because their risk is actually larger than 5. • Supply of Insurance ○ Explained by law of large numbers. impaired earning capacity and future expenses. Outline Page 45 . and Subrogation ○ Common-law rule:  Plaintiff's first-party insurance benefits are collateral to defendant's liability and therefore are not deducted from defendant's liability. but allow insurer to recover punitive damages against tortfeasor-insured • 1st Party Insurance.  If a person is risk averse.  Risk aversion is implication of declining marginal utility of money income  Most people are risk averse □ If the probability of a person getting $1000 was 100%. Say a 3% chance. Self-insure i.000 the insurance company using a deductible would only pay $90. (so originally a policy may be based on a 1% chance of your house burning down. disability. pain and suffering. You can "taylor the premium you pay yourself" to exactly how much you want to set aside in the case of an accident.000 loss • Responses to Adverse Selection ○ Deductibles and co-insurance  If you take a high deductible. they would prefer that over a 50% chance of getting $2000. such as fire. Therefore they will not buy the premium. you get better premium  If you take lower. ○ Third-party. However.700 under a union health insurance plan paid for by his employer. the chances that 1% will burn down is a certainty. But once insured. damage to insured's auto.5 and above will buy the premium. the person may think. taking precautions entails a marginal cost but no marginal benefit because he will be compensated for any loss. • Responses to Risk Aversion a. Why would you care if their house burnt down…you would then get to collect on the benefits ○ Deductibles and co-insurance  Instead of paying $100. Frost v. ○ Adverse Selection  When an insurance company evaluates a risk category (say teenage drivers) the category may include those with a probability of 5% of having an accident up to a 6% of having an accident.5%. their insurance companies will pay. The benefit is that you know exactly how much to set aside.  The marginal utility of money declines as we get more and more income. • Kinds of Market Insurance ○ First-party:  Coverage for the economic effects of some probabilistic event. you get worse premium ○ More precise risk categories • Insurance and Punitive Damages ○ Policy may exclude coverage of loss from conduct triggering punitive damages ○ Otherwise  Most states force insurer to cover punitive award  Minority preclude payment by insurer on grounds of public policy □ Public policy being what's the incentive to avoid the conduct bringing forth the punitive damages if the insurer has to pay the punitive damages  Some require insurer to pay. The premium will be more expensive at this percentage than what is actually should have been for those at 5%. after the individual becomes insured. death.5% of having an accident.• Demand for Insurance ○ Risk aversion:  Utility of a certain prospect of money income is considered higher than the expected utility of an uncertain prospect of equal expected monetary value. ○ Frost received medical expense benefits of $22. You can't take an insurance policy out on someone elses house. iii. So if the chance that when State Farm insures a million houses. Purchase market insurance b. May be possible in the right circumstances ii. So the riskier people have now bought the insurance premiums which is adverse to the insurance company • Responses to Moral hazard ○ Insurable interest  Whoever takes out the policy must have an insurable interest. They average those saying there is a 5. so essentially the insured suffers a $10. or liability:  Coverage for damages that insured is legally obligated to pay to another • Problems Facing Insurers ○ Moral hazard  Incentive the insured has after becoming insured to change his behavior in ways that increase his expected loss. □ Thus. not risk preference ○ The reason they can offer insurance is that if they insure enough risks. hey I have insurance its ok for me to take less care. So now the premium should be more than it is. Collateral Source. ○ The insurer intervened claiming a right of subrogation from the plaintiff for any of the medical expense damages recovered in the tort action. So everyone 5.

• Duty to Defend: Litigation Insurance ○ Insurance contracts can exclude the duty to defend ○ Otherwise. ○ 12-year-old Michael Maddock who was operating a motorized bicycle collided with an automobile being operated by Jean Lalomia. who can then recycle it in the form of lower insurance costs. the costs of litigation and the decision to settle may have reduced his overall recovery. Bankers & Shippers Ins. there is generally no implied right of subrogation The idea is that when people buy property insurance…all they really want is to get reimbursed for the loss of whatever property is damaged. and ○ Insurance Co." but not a "private passenger automobile" ○ Thus: ○ B&S not liable on the third-party provisions of auto insurance policies. if he has not paid a judgment or sometimes when he has paid a settlement. is claiming a right to implied subrogation since there was no previous agreement of subrogation bet ween the insurer and insured. It is easy to quantify. ○ So if even one of those claims are arguably said to fall in the terms of the policy. ○ The court also held that Liberty Mutual is liable under the terms of the uninsured motorist endorsement in its policy since the motorized bicycle is considered an uninsured motor vehicle. • Thus. there is no implied right of subrogation. ○ Furthermore." ○ Insurance Company of North America had issued a homeowner's policy to defendant Maddock and the policy obligated the insurer to pay all sums which the insured would become legally obligated to pay as damages because of personal injury or property damage . operation. Subrogation right may be express or implied Implied subrogation often found in property insurance contracts Implied subrogation generally not found for personal insurance Insurance policies covering medical expenses will be treated as if they are personal insurance policies • • • • Note • When a third party to the tort (the "subrogee"). ○ Does this make sense? ○ Do we think that the premium the insurance company came up with took into account an event such as this (homemade bicycle causing an accident four blocks from house)? ○ We aren't too concerned with this because the insurance company can make up the losses and future losses such as this by taking this into account in their premiums (through increasing the costs of premiums) or they can exclude coverage for these accidents in the future in their agreements. and since it is unclear whether the insured has recovered excessively. use. if plaintiff asserts even one claim that can rationally be said to fall within the policy coverage.• • • • • action. Michael's father. has a right of subrogation. such as the insurer. The court distinguishes property insurance and personal insurance In property insurance. ○ The court held that the Insurance Company of North America has an obligation under its homeowner's policy since the cause of action is not related to the "ownership. ○ The insurer. ○ Because the right of subrogation should be limited to excessive recovery. Outline Page 46 . operation. then the insurance company must defend. there can be an implied right of subrogation If its personal insurance (such as life insurance). or use" of the vehicle but rather is a theory of negligence against the defendant.  The court held that in the absence of a subrogation agreement between the insurer and the insured. ○ The policy excluded from its coverage "the ownership. it must share legal costs incurred by insured in obtaining compensation (a judgment or settlement) from tortfeasor Impact of Insurance on Tort Litigation Lalomia v. maintenance. ○ Liberty Mutual Insurance Company had issued a policy to plaintiff Laurence Lalomia. subrogation returns any excess to the insurer. he is subrogated to rights of the subrogor. ○ Duplicative compensation for the insured is unlikely in this case because he may be faced with property damage. and it would only provide coverage for the motorized bicycle if it were held to be an after -acquired "private passenger automobile. maintenance. pain and suffering. ○ Bankers & Shippers Insurance Company had issued two policies of automobile insurance to Daniel Maddock. • Key finding ○ Motorbike was a "motor vehicle. or ○ Tort victim (subrogor). ○ Liberty was liable on first-party provision of auto insurance policy that covered damage caused by uninsured motorists. which provides coverage f or uninsured automobiles. the subrogee can proceed against: ○ The tortfeasor. ○ Whether a group insurer which provides medical expenses to an insured has a right of subrogation in a recovery by the insured against a tortfeasor even though the insurance policy contains no express provision entitling the insurer to subrogation righ ts. Arguments for implied right of subrogation: ○ Implied subrogation prevents the insured from obtaining excessive compensation for his losses ○ Also. ○ Both Michael and Jean were killed in the accident ○ Lalomia's beneficiaries filed a negligence action against Michael's father claiming he placed a dangerous instrument in the p ossession of and at the disposal of a 12-year-old boy. Co. insurer liable for litigation defense costs. if tortfeasor has paid victim a judgment or settlement Legal Fees • When insurer exercises right of subrogation. and diminished earning capacity. even if not me ritorious. Jean's husband. could be found liable under homeowner's policy in order to provide more substantial compensation to plaintiff. in addition to medical bills. an insurer that has paid medical or hospital expense benefits has no right to share in the proceeds of the insured's recovery against a tortfeasor. Union Labor. loading or unloading" of automobiles or midget automobiles while away from the insured premises.

000.000). • To establish bad faith.000 attributing 85% of the fault to Rosato and 15% to Amerosa. defendant will pay x ($100. The Rosatos and the plaintiff then entered into an agreement that the Rosatos would assign all causes of action they might have against State Farm to the plaintiff in exchange for the plaintiff not executing the excess portion of the judgment against the Rosatos. especially in cases where an insured of meager means is covered by a policy of insurance which could finance only a fraction of the damages in a serious personal injury case. Carmine Rosato. insurer is indifferent between settling and litigating: ○ If the insurer litigates: Cost to insurer…. k.000 ○ Tort plaintiff's claim against insured: $4. plaintiff must show that insured lost an actual opportunity to settle the claim at a time when all serious doubts Outline Page 47 . the Appellate Division reduced the verdict to $3.So if even one of those claims are arguably said to fall in the terms of the policy. a deliberate or reckless failure to place on equal footing the interests of its insured with its own interests when considering a settlement offer.000. iv. in a deposition. was driving his mother's car insured by State Farm with a $100. c. at that same percentage.000) in settlement ○ If trial result is over y (say $500. there were still several significant questions about the insured's liability.000.000). • Settlement Strategies ○ "High-low" settlement: Each party wishes to avoid extreme result ○ If Plaintiff is awarded nothing. Pavia v. was severely injured. ii. iii. • "Mary Carter" agreement: Defendant remains in case and guarantees Plaintiff a certain sum ○ Amount depends on plaintiff's success against the other defendant's ○ Danger is that settling defendant may testify in way that helps plaintiff but hurts other defendants." g..000 = 50. or principal -agent problem: Interests of agent diverge from interests of principal.000 liability limit. plaintiff's counsel demanded a settlement for the full $100. Turns out that the witnesses alluded to in his deposition could not be found and State Farm decided to make an offer to pay t he $100.000 ○ Insurer's settlement transaction cost: 0 ○ Insurer's Interest: Settle only if it assesses the probability of plaintiff prevailing at above 50%. • Insured must establish the insured's "bad faith. Without reading Rosato's deposition. the insured will want to settle because their cost is much higher.000) + 50. plaintiff must establish that insurer's conduct constituted a "gross disregard" or the insured's interests . parties will settle for y ($500. However.00) ○ …. Carmine Rosato led State Farm to believe that the double -parked car may have been backing up. b. an amount greater than x. the 19-year-old plaintiff. Bad Faith Standard for Insurance Co. a." • In applying this standard. Amerosa. The Supreme Court reduced the verdict to $5. State Farm ignored the demanded settlement and instead pursued an investigation of the potential defenses from Rosato's deposition. or less than x (say $100. he collided with a car driven by Amerosa. suggesting that Rosato's quick maneuvering may have been justified under an "emergency defense. that witnesses not previously identified could support this testimony h." ○ The plaintiff's time limited settlement came at a relatively early point in the litigation ○ At the time of the settlement demand. The Rosatos and plaintiff commenced an action alleging that State Farm acted in bad faith by "failing to accept plaintiff's policy limits settlement offer within a reasonable time despite the clear liability and obvious damages exceeding the policy limits. Pavia commenced a personal injury action against the Rosatos and Mr. d. One night." ○ State Farm's failure to promptly respond did not amount to more than ordinary negligence. ○ At 50% probability. ○ Basically if the probability of the P winning is 50% the insurer is indifferent to settling or litigating because they will p ay the same.880. ○ E. plaintiff "must establish the defendant insurer engaged in a pattern of behavior evincing a conscious or knowing indifference to the probability that an insured would be held personally accountable for a large judgment if a settlement offer within the policy limits were not accepted.000 and upon plaintiff's stipulation. • Suing Insurer: Hypothetical ○ Insurance policy limit: $100. e.000. then the insurance company must defend.000 ○ Plaintiff's settlement offer: $100.322. Plaintiff rejected State Farm's offer and the case went to trial. Also.6($100. ○ "State Farm should not be penalized fro the delay in processing the claim and offering the full policy limits in settlement which resulted from its pursuit of an investigation prompted by its insured's representations which ultimately did not materialize..000 110. who was a passenger in the car. Pavia. which defendant was entitled to investigate and explore." ○ "Permitting an injured plaintiff's chosen timetable for settlement to govern the bad faith inquiry would promote the customary manufacturing of bad faith claims.000 policy limit and require d acceptance of the offer within 30 days. if probabiliy of plaintiff winning is 60%. in an effort to avoid a double -parked car while turning a corner.g. a 16-year-old. i. Later.000. A preliminary investigation by a State Farm representative led to the conclusion that the Rosatos were 100% liable for the ac cident.. State Farm Mutual Automobile Insurance Co." ○ What is the appropriate standard for the showing of bad faith on the part of an insurance company? ○ Did the plaintiff present a prima facie case of bad faith on the part of State Farm under that standard? ○ The court held that the plaintiffs failed to establish a prima facie case of bad faith ○ The "defendant's failure to respond to the letter and overall delay under the circumstances of this case cannot serve as a basis for recovery." • To establish a prima facie case of bad faith.000 ○ Insurer's litigation cost: $50. the expected cost of litigating is: . j. f. The trial jury returned a verdict in the amount of $6.that is. ○ Result: Agency problem. i.

2. or to commit an assault and battery on her would not absolve him from liability if in fact he had such knowledge. or ○ The person acts knowing that the consequence is substantially certain to result. but believed she would realize her mistake before losing her balance and catch herself before hitting the ground?  If we believe his story then he doesn't satisfy intent as stated in R2 and R3 ○ What if Brian knew that Ruth would hit the ground. dishonest. easier to prove then one below ○ Insurer is liable only if it acts with an "intentionally harmful. INTENTIONAL HARM 1. modify earlier example by assuming that the settlement offer is $200. but did not believe that Ruth would be injured or even offended? ○ What if P satisfy her burden by proving that a reasonable 6-year-old would know that P would suffer a harmful fall?  Presenting this to a jury would be permissible evidence to persuade the jury but Brian can still argue that even though a reasonable 6-year-old would know. ○ There are two conflicting sets of facts.000. in addition to plaintiff's fall. because of the scale of its operations. or ○ That he believes that the consequences are substantially certain to result from it • Garrat: Questions ○ What if Brian knew that Ruth would attempt to sit where the chair had been. Common Intentional Torts (these will be discussed) Assault Battery False imprisonment IIED Intent Garratt v.g. 2. • R3 (draft) s.  This can't be an intentional tort…even though the railroad knows with substantial certainty people will be killed…there isnt much they can do. Dailey ○ The plaintiff. he didn't know and therefore should not be liable • Hypo ○ Suppose a railroad knows that. Ruth Garratt is alleging that five year old defendant. that when Brian moved the chair. • Alternative Standards ○ Insurer is liable for the excess if it is negligent in rejecting the settlement offer  Bad Faith Standard would lie here. or disingenuous motive" ○ Insurer is strictly liable for the excess if it rejects a settlement offer • The bad faith standard is the common standard • Failure to Settle Above policy limits ○ Analogous problems arise when plaintiff's lowest settlement demand exceeds the policy limits. 2: Recklessness • A person acts recklessly in engaging in conduct if: Outline Page 48 . it was proved. (What varies is the consequence) R2 s. Brian Dailey. committed battery. ○ Brian claims that some time prior to the plaintiff trying to sit down. 3. • The plaintiff's timeline on how long the insurance company has to settle does not dictate bad faith on the part of the insurance company. ○ Insurer may be held liable for failing to offer insured chance to pay something….  He then noticed that the plaintiff was about to sit down where the chair had been and before he could move the chair back. The plaintiff alleges that five year old Brian Dailey deliberately pulled her lawn chair out from under her when she went to sit down. 50 people per year will be killed at its grade crossin gs. he moved the lawn chair sideways a few feet and seated himself in the chair. where verdict may be much large r still  E. 8A: Intent • "Intent" denotes: ○ That the actor desires to cause the consequences of his act. 4.000 when the insurance policy limit is $100." What Intent is required for liability? To cause harm? To cause embarrassment? To move the chair? To commit a battery? To produce contact with the ground? The requisite intent here is intent to product contact with the ground (not the other 4) 1. he knew with substantial certainty that the plaintiff would attempt to sit down where the chair had been" ○ "The mere absence of any intent to injure the plaintiff or to play a prank on her or to embarrass her.. the plaintiff fell to the ground ○ Both sides agree that the plaintiff fractured her hip and had other painful and serious injuries. 3. 1: Intent • A person acts with the intent to produce a consequence if: ○ The person acts with the purpose of producing that consequence.  Did Brian have the requisite intent? ○ The court held that the case should be remanded for clarification of the findings to specifically cover the question if Brian had knowledge that the plaintiff would attempt to sit down where the chair used to be. 4.• about the insured's liability were removed. Harder to prove then negligence. 5. ○ "A battery would be established if. R3 (draft) s.

16: character of intent necessary • "If an act is done with the intention of inflicting upon another an offensive but not a harmful bodily contact. ○ The Plaintiff was upset with the dealer's work and contacted a local television news "troubleshooter" reporter. That rule reflected a policy decision "to impose liability on an insane person rather than leaving the loss on the innocent victim. and ○ A harmful contact with the person of the other direct or indirectly results." • Under the plaintiff's theory that defendant shoved her: ○ That would be enough for a battery because first he intended to at the very least to cause an offensive contact and ○ Second a harmful contact resulted • Under the defendant's argument where he only put his finger on the camera: ○ That would still be enough for a battery because he intended to cause an imminent apprehension of an offensive contact (walke d toward her pointing his finger) Then he made contact with her camera which is an indirect contact with her.. the railroad company surely is not incurring any costs that make it likely people will die. • A majority rule is that a defendant's insanity does not establish a defense to liability. or of putting another in apprehension of either a harmful or offensive bodily contact. defendant dealer informed plaintiff Picard that the brakes on her mother's automobile would have to be replaced. don't go out of your way to commit a tort)  So in reference to the railroad. Picard v. the plaintiff returned to the repair shop with the car along with representatives of the dealer. There is no such thing as two great a burden for an intentional tort • Contributory negligence is a nonfactor for an intentional tort. or  An imminent apprehension of such a contact. 13: Battery: Harmful Contact An actor is "subject to liability to another for harmful contact battery if: ○ He acts intending to cause:  a harmful or offensive contact with the person of the other or a third person. Inc. 2: Recklessness • A person acts recklessly in engaging in conduct if: ○ The person knows of the risk of harm created by the conduct tor knows facts that make the risk obvious to another in the pers on's situation.  If punitive damages were awarded.  The court held that the defendant committed a battery against the plaintiff ○ Even if the defendant did not intend to touch or injure plaintiff. ○ The court felt that the plaintiff's apprehension of imminent bodily harm was reasonable at that point. the actor is liable to the other for a battery although the act was not done with the intention of bringing about the resulting bodily harm…. ○ Plaintiff then took the vehicle to a repair shop where it passed inspection. This would create too great a burden on society ○ Punitive damages are awarded for recklessness  You can't take too much precaution against a tort committed with recklessness (intentional)." Assault and Battery R2 s. and such act causes a bodily contact to the other. R2 s 21: Assault An actor is subject to liability to another for assault if: ○ He acts intending to cause:  A harmful or offensive contact with the person of the other or a third person. ○ -B < PL : Intentional Tort • Two principle differences between simple negligence torts and recklessness/gross negligence ○ Punitive damages are not awarded for simple negligence torts." R2 s. the defendant's contact with the camera clutched in plaintiff's hand was sufficient to constitute a battery. ○ The dealer called the repair shop and requested that the car's inspection sticker be pulled because it had bad brakes ○ Ultimately.R3 (draft) s. or  An imminent apprehension of such a contact. and ○ The precaution that would eliminate or reduce the risk involves burdens that are so slight relative to the magnitude of the r isk as to render the person's failure to adopt the precaution… • Spectrum of Culpability ○ B> PL : No-fault (strict liability) ○ B<PL : Negligence ○ B much < PL : Recklessness/ gross negligence  Defendant incurs a cost to commit the tort (the simple answer is. ○ "The defendant failed to prove that his actions were accidental or involuntary. Outline Page 49 .. ○ From here there were two sets of conflicting facts:  The plaintiff testified that the employee lunged at her and spun her around  The defendant claimed that he merely walked up to the plaintiff and placed his index finger on the camera and said "who gave you permission to take my picture?" ○ The Plaintiff also claimed to have suffered permanent damage in her back ○ She filed an assault and battery action against the defendant employee  The court held that the defendant assaulted the plaintiff ○ The defendant admitted approaching the plaintiff and photographs clearly showed the defendant pointing his finger at plaintiff as he approached. ○ The plaintiff took photographs of an employee of the dealer while he inspected the brakes. and ○ The other is thereby put in such imminent apprehension. this would be an incentive to take too much precaution even for the simplest torts. ○ During an annual inspection. Barry Pontiac-Buick.

It is enough that he believes that the act is capable of immediately inflicting the contact upon him unless something further occurs. but D knew that P would be offended? ○ Here we satisfy the intent requirement except that this offensive contact would not have been offensive to an ordinary person . Courts are very reluctant to recognize actions where the only evidence is words Criminal vs. harmful contact battery is only one type of battery. and ○ D must have the ability to injure victim • Civil assault (tort) ○ Victim must have an apprehension of contact. was engaged in conversation with attorney Peter Crary in Crary's office. ○ Plaintiff brought an action against Huey seeking damages for battery  The court held that while Huey's conduct may have been "rude and abrupt" it did not rise to the level of battery. May an assault consist of words alone? a. • The court tells us that offensive contact is an objective standard. indirect. ○ So what is the point of the objective standard?  The law does not want to make a person liable for something that is well known to not be offensive ○ The law is not clear with a scenario such as this 3. What if D believed that P would find contact welcome. this is not the issue • The question is. Almost always words are accompanied by some gesture b. Civil Assault • Criminal assault ○ Victim need not have an apprehension or fear of contact. and ○ D need not have the actual ability to carry out the threatened action Intent Toward A Assault Effect on B (and liability for) Assault Battery (harmful) Battery (offensive) Battery (harmful) Battery (offensive) False imprisonment False Imprisonment • Any one of column one (toward A) along with any one from column two (effect on B) will satisfy the tort Offensive Contact Battery Wishnatsky v. others not ○ The defendant did not act with the intent (purpose or knowledge) to offend or harm plaintiff. an assistant attorney general. How imminent must contact be? 7. Huey ○ Defendant Huey. However. ○ Wishnatsky. ○ It is more likely that there will be an assault without a battery. if you sneak up behind someone and injury them…y ou committed a battery but not an assault.○ Then he made contact with her camera which is an indirect contact with her. ○ At the same time. Remember. some would be offended. ○ "The bodily contact was momentary. that reaction must be reasonable There is no reasonable person standard if plaintiff was injured (this goes back to the eggshell plaintiff rule) Questions: 1." ○ "An ordinary…not unduly sensitive" person would not have been offended by Huey's response to the intrusion. • Here the court labels the plaintiff as being overly sensitive." • A contact occurred. Is there a difference between fear and apprehension? ○ "It is not necessary that the other believe that the act done by the actor will be effective in inflicting the intended conta ct upon him. What if a reasonable person would not find contact offensive. Huey's conduct would not "be offensive to a reasonable sense of personal dignity. Would a reasonable person be offended by this contact? • What constitutes offensive contact? ○ A bodily contact is offensive if it offends a reasonable sense of personal dignity Actionable Battery: 3 things must happen Defendant acts with "intent" (purpose of knowledge) -----> Contact ----->Plaintiff finds contact offensive or harmful." ○ "Therefore. • The court held that a reasonable person would not have been offended to the level that the plaintiff was offended." ○ Therefore. the plaintiff. the mere fact that he can easily prevent the threatened contact by self -defensive measures which he feels amply capable of taking does not prevent the actor's attempt to inflict the con… 6. if offensive to plaintiff. Outline Page 50 . what is the nature of the contact • Battery can be actionable without physical injury. but P was offended? ○ Objectively. • For a contact to be offensive. which pushed Wishnatsky back into the hall. and incidental. without knocking or announcing his entry attempted to enter the office but Huey pushed the door cl osed. you can have an offensive or harmful contact without an apprehension of the contact occurring. should we expose the plaintiff to this unwanted contact? 2. it must be offensive to a reasonable person. Can there be a battery without an assault? ○ Yes.

 Offense must be committed in the citizen's presence. by acts alone or both. as where the plaintiff remains with the defendant to clear himself of suspicion of theft." • "Moral pressure. 2. ○ "It is not enough for the plaintiff to have felt 'compelled' to remain in the baking room in order to protect her reputation." • "It is essential. "this requirement is aimed at limiting frivolous suits and avoiding litigation in situations where only bad manners and mere hurt Outline Page 51 . Plaintiff filed suit against the defendant corporation alleging false imprisonment ○ The court held that the plaintiff did not provide any evidence to support an action of false imprisonment. are threats for the future.'" • "In order for a false imprisonment to be present. This can be extended to other people (family) 4." • If she claimed that she was "under duress" because he felt if she walked out she would lose her job is that enough? ○ Probably not. there must be actual or legal intent to restrain. nor. iv. Employees of defendant's donut shop. and  Person arrested must be guilty (the risk of the mistake is on the arrester) • Malicious prosecution ○ The groundless institution of criminal proceedings against the plaintiff ○ Limited civil analog for wrongfully instituting civil action Intentional Infliction of Emotional Distress • The court provided four elements that must be present to have a cause of action for emotional distress unaccompanied by physical injury: ○ The wrongdoer's conduct was intentional or reckless  "This element is satisfied where the wrongdoer had the specific purpose of inflicting emotional distress or where he intended his specific conduct and knew or should have known that emotional distress would likely result.committed a battery but not an assault. to accompany them to the baking room ii. • So what is enough to satisfy "other duress?" ○ If economic consequences aren't enough ○ If reputation consequences aren't enough ○ If marriage consequences aren't enough…what is? ○ We do not quite know what is enough ○ Perhaps it is their for a safety valve to include some extreme circumstances not accounted for by the other parts… • False Arrest ○ Kind of false imprisonment that results from arrest by one not legally entitled to make arrest ○ In most states. for a valid citizen's arrest:  Must be a crime. Asserted legal authority • Does the protection of one's reputation fall under "other duress?" ○ Duress is basically doing something because you are under pressure ○ The court says moral pressure to avoid the cost of damaging one's reputation is not enough to fall under "other duress. ○ Threats of physical force. Threats of physical force a." • "Imprisonment has been defined as 'any unlawful exercise or show of force by which a person is compelled to remain where he does not wish to remain or to go where he does not wish to go. v. ○ There was also no evidence that plaintiff accompanied the defendant's employees against her will and she could have left the room at any time she pleased. ○ Other duress. actual force is unnecessary to an action in false imprisonment. ○ Overpowering physical force or by submission to physical force." • "Unlawful restraint may be effected by words alone. They did not threaten to fire her or make any other threat towards her. This is similar to reputation. that the confinement be against the plaintiff's will and if a person voluntarily consents to the confinement. however." ○ There was no evidence that the plaintiff yielded to constraint of a threat or to physical force." ○ The conduct was outrageous and intolerable in that it offends against the generally accepted standard of decency and morality . vi. Overpowering physical force. Other duress a. Winchell's Donut House i. The "little latch" in this case could be considered a barrier but it is doubtful it would be considered an actual barrier in this case because she could easily open the latch. Cesario and Bell. False Imprisonment • "The common law tort of false imprisonment is defined as an unlawful restraint of an individual's personal liberty or freedom of locomotion. Cesario and Bell told the plaintiff they had proof that she was stealing money during transactions with customers. R2: Means of "Imprisonment" 1." ○ Lopez v. is not enough. Actual or apparent physical barriers a. The plaintiff left the room when she first decided to do so. or by submission to physical force 3. including: ○ Actual or apparent physical barriers. iii." • "Any remedy for such wrongs must lie with the more modern tort of the intentional infliction of mental distress. also and employee. …. and ○ Asserted legal authority. Cesario and Bell did not force her into the room or to answer their questions. there can be no false imprisonment. asked plaintiff. as in the case of assault." • "Restatement (Second) of Torts specifies ways in which an action may bring about the confinement required as an element of false imprisonment. This is often a troublesome element 5.

"contract' is performed). However. and benefit is bestowed (i." ○ There was a causal connection between the wrongdoer's conduct and the emotional distress ○ The emotional distress was severe Womack v. This "should have known" is objective. sex is given.g. threat is carried out  If beneficial work condition (e. you can't sue the prosecutor because he has immunity. ○ "A reasonable person should have recognized the likelihood of the serious mental distress that would be caused in involving an innocent person in child molesting cases. Racial Harassment: Statutory Claims • 42 U." ○ "If the two boys had hesitated in answering that the man in the photograph was not the one who had molested them. promotion) is offered in exchange for sex. s 1981 ○ Equal rights "to make and enforce contracts" ○ Unlimited punitive damages • Title VII of the Civil Rights Act of 1964 ○ Total monetary damages (compensatory and punitive) caped according to employer's size ○ Title VII only has to do with discrimination in the workplace Title VII • "unlawful employment practice for an employer… to discriminate against any individual with respect to his compensation. The "should have known" part is a mistake that courts often mak e. Defendant posed as a journalist and asked for plaintiff's picture to be used in a publication e. or purpose.e. b. to inflict emotional distress. c. I suppose Seifert wanted to use the photo as a defense to see if he could put the crime on the plaintiff d. Eldridge. The defendant. what kind of intent is necessary for IIED? ○ A desire. and lead him to exclaim." The case of actionable intentional infliction of emotional distress "is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor. Intent According to the court. intentionally and deceitfully obtained plaintiff's photograph for the purpose of permitting her employers to use it as a defense in a criminal case without considering the effect it would have on the plaintiff.• • • • • • The conduct was outrageous and intolerable in that it offends against the generally accepted standard of decency and morality . the Commonwealth's Attorney inquired about the plaintiff and made him appear in court as a witness. Eldridge a. They re plied that he was not. willful and malicious conduct in obtaining his photograph and turning it over to Seifert's attorney to be used in court.S.C. and benefit is not thereafter bestowed (i.  The court held that jury verdict should be reinstated because a jury could conclude from the evidence that defendant willfully. terms. recklessly. or ○ A desire to do the outrageous act plus actual or constructive knowledge (knew or should have known) that emotional distress w ould result. 'outrageous!'" Outrageous Conduct: ○ Conduct that offends against the generally accepted standards of decency and morality Is it outrageous to show a photo of someone you know not to be the criminal to the victims with the hope the victims will identify the person as the criminal? ○ It could be Is it outrageous to misrepresent oneself in order to obtain a photo? ○ Not so much. it is evident that the finger of suspicion would have been pointed at the plaintiff. Seifert was charged with sexually molesting two young boys and the plaintiff had been present at the place where he was arres ted. requiring more evidence of outrageousness the weaker the evidence of distress. ○ Chances are it was the prosecutor if anyone that acted outrageously because he called in the man that had nothing to do with the case and made him a witness. had been employed by Seifert and his attorneys to obtain a photograph of the plaintiff to be used as evidence. It is a lie but it probably isn't outrageous. or priv…because of race.e.. "contract' is breached)  If beneficial work condition is offered in exchange for sex. Is it the prosecutor who is acting outrageously by making the man appear in court as a witness? ○ However. he testified that he suffered great shock. distress a nd nervousness because of defendant's fraud and deceit and her wanton. Seifert's attorney showed plaintiff's photograph to the two young boys and asked if he was the one who molested him. sex is given. Outline Page 52 . f. conditions. In Plaintiff's action for intentional infliction of emotional distress. sex… Kinds of Title VII Sexual Harassment • Quid pro quo ○ Employment benefits are actually conditioned on sexual favors  If a threat of adverse employment action is made contingent on sex and sex is refused.. Objective standard at odds with subjective nature of intent.  "this requirement is aimed at limiting frivolous suits and avoiding litigation in situations where only bad manners and mere hurt feelings are involved. Severity of emotional distress • Generally same standard as in negligent infliction of emotional distress ○ Some states require physical manifestations • But cases tend to merge outrageousness of D's conduct with severity of P's emotional distress. g.

sex is given. when discrimination is caused "by a supervisor with immediate or successively higher authority over the employee. and  Whether the conduct unreasonably interferes with an employee's work performance. and □ Employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer ○ No defense possible: tangible employment action  When supervisor's harassment culminates in a tangible employment action.e.  Severity. or abusive. So a male defendant would want reasonable person not reasonable woman. "contract" is performed) • Hostile work environment ○ Meritor Savings (1986): Unwelcome sexual advances that create an offensive or hostile working environment violate Title VII ○ When the workplace is permeated with "discriminatory intimidation. Intentional Interference With Family Relationships • Most cases have to due with spousal interference • Early Common-law actions ○ Writ of ravishment  Could be obtained by husband if D took wife forcibly or eloped with her ○ Enticement  Action against one how (1) without justification and for purpose of disrupting marital relationship. but then pervasiveness and repetition become relevant. Employer's vicarious liability • Prima facie liability: Employer is prima facie vicariously liable to a victimized employee for discrimination. whether categorized as quid pro quo or hostile work environment. and insult that is sufficiently pervasive to alt er the conditions of the victim's employment and create an abusive working environment title VII is violated. no affirmative defense is available □ The employer is vicariously liable. Question ○ Is the "objective" standard the reasonable "person" or the reasonable "woman" (or man)?  Is there a difference?  From the standpoint of the victim you want to adopt a reasonable woman or reasonable man standard  From the standpoint of the defendant. not just unpleasant.e.. including:  Frequency.  The supreme court decided it is the "reasonable person" standard  The results of these cases are heavily fact specific.  Analogously." ○ A possible defense: no tangible employment action  When no tangible employment action (i. influenced or assisted one spouse to separate or remain apart from other spouse…. and adverse work condition is not imposed (i. ○ Criminal conversation  Sexual intercourse between a third-party and a husband and wife ○ Alienation of affections  Brought by husband against third-party who caused his wife to become disenchanted with their marriage (no sexual intercourse was needed unlike criminal conversation) • Later History ○ Criminal conversation  Some 20 states have abolished action entirely  Other states have extended it to wives (by statute or common law) ○ Alienation of affections  At least 39 states have abolished action by heart-balm statutes or judicial decision □ Statutes also abolish (1) breach of promise to marry and (2) seduction (action by parents based on sexual intercourse with child)  Some states abolish criminal conversation but retain alienation of affections Outline Page 53 . can be determined only by looking at all circumstances. "a significant change in employment status..  Whether the conduct is physically threatening or merely an offensive utterance. So the court gives the employer an opportunity to escape liabilty. such as hiring or firing) "employer may raise an affirmative defense that □ Employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior. ridicule. ○ Objectionable conduct must be severe or pervasive ○ Courts tend to recognize a trade -off between severity and pervasiveness Harris (1993) ○ So long as a work environment "(1)would reasonably be perceived and (2) is perceived as hostile or abusive. there is no need for it also to be psychologically injurious" for Title VII violation  Has objective and subjective components ○ Whether an environment is hostile. imagine case in which adverse work condition is threatened if sex is not given.  The workplace must be hellish. a reasonable person standard would want to be used because what is reasonable to a man may not have been reasonable to a woman.whether there is a quid pro quo claim is not clear □ May fit more comfortably as hostile work environment claim.

it manifested its intent to abolish common law actions seeking damages for a particular type of conduct. ○ "We conclude that when the legislature enacted [the statute]. The plaintiff still recovered from the speech…. 1968. No one would take this parody as fact. Falwell sued Hustler and publisher Larry Flynt for libel. and intentional infliction of emotional distre ss. It doesn't seem as bad as "flaunting" but the nature of an affair could be considered outrageous. McDermott's IIED action should be barred because the nature of the IIED claim is that of a claim for the barred alienation of affections. then they will allow a cause of action. and suggested that Falwell is a hypocrite who preach es only when he is drunk. essentially the standard for defamation is useless. The cou rt would still be getting involved in these messy "affair" type relations which is what the legislature wanted to avoid. • Holding Outline Page 54 . Hustler magazine featured a "parody" of an advertisement on the inside front cover of one of their issues that contained the name and picture of Jerry Falwell. then alienation of affections and IIED would be the same action. The advertisement portrayed Falwell and his mother as drunk and immoral. ○ This is the problem here.• Question ○ Why have many states abolished common-law actions for criminal conversation and alienation of affections?  If these are things that people would pay to avoid…there are real injuries suffered from these actions. i. Reynolds a. • Hustler published an offensive parody of an ad that originally was based on "the first time" a particular celebrity drank Compari liqueur • Parody ad implied that Falwell's "first time" was during a drunken incestuous rendezvous with his mother in an outhouse • In order to recover for defamation there must be false assertion of fact that the audience would take to be fact. However their might be a claim for IIED. • The statute at issue in this appeal." ○ "We must consider the nature of the cause of action pleaded. ○ No civil action for seduction shall lie or be maintained where the cause of action arose or accrued on or after July 1. 1974 □ The court held that to be in accordance with the legislative intent of the statute. or criminal conversation upon which a cause of action arose or occurred on or after June 28. McDermott sued Reynolds for intentional infliction of emotional distress based on Reynolds' alleged conduct in maintaining an adulterous relationship with McDermott's wife. Whether a public figure may recover damages for emotional harm caused by the publication of an ad parody offensive to him. breach of promise to marry. Falwell a. The court held that public figures and public officials may not recover for the tort of IIED by reason of publications such as the one at issue without showing in addition that the publication contains a false statement of fact which was made with 'actual malice. So why would we want to abolish them? □ Do we really want courts to get in the messy details of an affair? □ Are formal causes of actions suited for these kinds of claims? □ Societal attitudes have changed. which he continued in an open and notorious manner after being confronted by McDermott.' with knowledge that the statement was false or with reckless disregard as to whether or not it was true. Perhaps it is not as serious an injury than 30 years ago □ Alienation of affections have been abolished by more states because it is not as clear McDermott v. there is a large loophole in what the legislature was intending. • Which position is stronger? ○ McDermott is probably stronger because if it is not followed." ○ "The essential basis of McDermott's claim is that the defendant had an adulterous relationship with McDermott's wife. • What if affair injures P's relationship with children? ○ Some courts have said that if the P can prove some obstruction with children. Hustler Magazine v. regardless of the name that a plaintiff assigns to that conduct. an d doubtless gross and repugnant in the eyes of most. in determining whether a plaintiff has stated a cause of action that will permit recovery of damages for the conduct alleged. c. What kind of "flaunting" would be considered outrageous? • Is a discreet affair "outrageous?" ○ Hard to say. What does outrageous mean? ○ If any extra martial affair would be considered outrageous. so they sue for IIED and if they recover. invasion of privacy.01-220. This alleged conduct is precisely the type of conduct that the legislature intended to exclude from civil liability when it enacted [the statute]. Code s." • Plaintiff brings an IIED claim so as to get around the abolishment of alienation of affections • Why is it that this statute abolished plaintiff's IIED claim? ○ Because the conduct alleged would have supported action for alienation of affection (explicitly barred by Code) • But see Rafftery (4th Circuit): code does not bar action for IIED based on conduct with "overtones of affection alienation" because the two torts have different elements. • What element necessary for IIED is not necessary for alienation of affections ○ Extreme and outrageous conduct on part of the defendant • Was the D's conduct "outrageous" ○ Hard to say. b. no civil action shall lie or be maintained in this Commonwealth for alienation of affection. b. McDermott accused Reynolds of deliberately flaunting his relationship with McDermott's wife outwardly causing McDermott to su ffer severe emotional distress. not merely its form. • What kind of injury can you suffer from reputational damage? ○ Lost esteem in community ○ Lost wages (fired from job) ○ Emotional distress (people won't associate with you anymore…) • An IIED claim and defamation can go hand in glove…Sometimes people cannot sue for defamation because they do not meet constitutional requirements. 8. d. provides: ○ Notwithstanding any other provision of law to the contrary.

the court adopts the standard for defamation so there will be continuity in the standards. If D thought plaintiff consented. or circumstances ○ Key is whether D reasonably believed P gave consent. should not have a right to recover any damages that he may sustain as the result of the combat. ○ "It is sufficient to say that in our opinion one who engaged in prize fighting. and (objective standard) ○ The means used were reasonable (objective standard) (the means of defense can only be proportional in light of the attack) • • • • • • • Rule • Those who (1) reasonably believe that they are (2) unwarrantedly attacked have a privilege to protect themselves. actions. then D lacked intent. ○ Where a defendant attempts to justify on a plea of necessary self -defense. • This influences burden of persuasion."  The court held that the plaintiff could not recover because he expressly consented to and engaged in the fight. as did the plaintiff. not only that he acted honestly in using force. or cause an imminent apprehension of physical contact/injury) D may justify intentional conduct that injured P based on self-defense if he proves that: ○ He acted honestly in using force.9% of consent cases will arise out of a battery • Courts tend to talk about consent as if it were a defense. ○ "If the jury believed. Geysel ○ Plaintiff's decedent and defendant engaged in a prize fight and the plaintiff died after being struck by a blow from defenda nt. at least." One who engages in prize fighting. Not what the P thought ○ Why focus on D?  This could prove intent. and sustains an injury. (3) using only the force Outline Page 55 . both parties can recover from one another ○ Minority rule: Neither party can recover from the other Why does the court prefer the minority rule? ○ The public interest Is what will deter street fighting? ○ Second public interest. but that his fears were reasonable under the circumstances. in the absence of a showing of excessive fore or malicious intent to do serious injury upon the part of the defendant. applicable not only in tort law but throughout the whole field of law. from the evidence. each is civilly liable to the other for any physical injury inflicted by him during the fight. shot the plaintiff. the public does not want to incur costs through administrative costs of court cases about street figh ting Note ○ Consent may be expressed or implied by words. that the defendant would have been justified in shooting one of the rioters. the defendant would have the burden of persuasion Defenses and Privileges Hart v. was it excusable. had such person advanced towards him. not whether P reasonably believed he gave consent or intended to consent ○ The focus is on what the D believed. he must satisfy the jury. and  The statements of fact were false and made with "actual malice". that is: □ Knowledge of falsity." ○ "There is further principle. Defenses and Privileges Consent • 99. and also as to the reasonableness of the means made use of. the cat of each is unlawful and relief will be denied them in a civil action. The fact that the parties voluntarily engaged in the combat is no defense to an action by either of them to recover damages for personal injuries inflicted upon him by the other. Courvoisier v. then it became important to determine whether the defendant mistook the plaintiff for one of the rioters. or □ Reckless disregard for truth or falsity • So essentially. does not have a cause of action against the other fighter because he consented Street Fight ○ Majority rule. even though prohibited by positive law.○ A public figure may not recover for IIED based on an offensive publication unless the plaintiff proves that:  Reasonable persons would interpret the offending statements as actual facts. and sustains an injury. As an affirmative defense. believing that the plainti ff was one of the rioters . Raymond ○ Some rowdy men entered defendant's building after midnight without permission ○ The defendant fired some warning shots to chase away the men but they gathered in the street in front of his building ○ Two sheriffs and the plaintiff heard the shots and the two sheriffs started arresting the rowdy men ○ The plaintiff proceeded toward the defendant calling out that he was an officer but the defendant. ○ A statute made the fight illegal ○ And the complaint did not allege that the fight was undertaken in anger nor was there malicious intent to seriously injure or was there excessive force ○ Majority rule: ○ "where the parties engage in mutual combat in anger. even though prohibited by positive law. and. and perhaps more conspicuously in other subjects. which he expressly consented to and engaged in as a matter of business or sport. if such mistake was in fact made. ○ His fears were reasonable under the circumstances. to the effect that no man shall profit by his own wrongdoing." ○ Minority rule: ○ "Where parties engage in a mutual combat in anger. cause an offensive contact. in light of all the circumstances leading up to and surrounding the commission of the act? The tort alleged is battery (the plaintiff was shot) Are the elements of battery satisfied (D must have intent to either cause a harmful contact. If D knew plaintiff did not consent but did it anyways…the D has intent.  The court held that the jury was improperly instructed because the jury was not given a chance to consider whether the defendant's self-defense was justified.

" ○ "let us imagine in this case that for the better mooring of the vessel those in charge of her had appropriated a valuable cable lying upon the dock.e. having thus preserved the ship at the expense of the dock. such as a spring gun. that the defendant preserved the ship at the expense of the dock and therefore should be liable for the damage to the dock. punitive damages may be allowed as punishment to the defendant and as a deterrent to others.C. P and his family were injured. (3) using only the force that a reasonable person would use under the circumstances (i.you are also liable when there is a privlege • Why is damage liability appropriate? ○ Reasons for damage liability  Assure that the rescue is really cost justified (make the defendant make the choice whether his ship and cargo is more valuable then dock)  Encourage dock owners to cooperate with boats in distress □ Necessary in light of Ploof  Get right amount of investment in docks Government Liability Deliberate Interference with Individual Rights 42 U. Outline Page 56 . Lake Erie Transportation Co. ○ A series of trespassing and housebreaking events occurred with the loss of some household items ○ The defendants decided to stop the burglaries by setting up a "shotgun trap" where if a bedroom door was open the gun would f ire at the door. the first party is liable for the damages caused. (2) under color (this is saying person is acting under color of state law) of any statute. the plaintiff opened the bedroom door. and ○ His intervention is necessary for the protection of the third person ○ (there must be some reason for the third persons intervention) Katko v. the plaintiff and a friend were trespassing in the house. s 1983 • (1) Every person who. ○ The defendant held the ship in position resulting in $500 worth of damage to the dock ○ Plaintiff sued defendant to recover the damage done to the dock  The court held that because the defendant deliberately and by their direct efforts held the ship in a position that damage to the dock resulted.you are liable when there is no privilege…. the gun went off. that either takes life or inflicts great bodily harm unless: ○ The trespasser is committing a felony of violence or a felony punishable by death.Rule • Those who (1) reasonably believe that they are (2) unwarrantedly attacked have a privilege to protect themselves. and."  "it is the accepted rule that there is no privilege to use any force calculated to cause death or seriously bodily injury to repel the threat to land or chattels. principle of proportionality) Defense of Others: R2 s. Vincent • If out of private necessity one is privileged to use another's property and damages it deliberately and by direct efforts. 76 • One who defends a third person is entitled to use the same means as though defending himself if he "correctly or reasonably believes that: ○ The circumstances are such as to give the third person a privilege of self -defense.. Briney ○ Defendants wife and husband inherited a farmhouse where the wife's parents had lived. ○ A severe storm approached that made it impossible to navigate the ship away from the dock. • The privilege seems to be worthless if you are going to be liable for the damage caused…. ○ No one had lived in the house for quite some time. custom. ordinance. ○ A steamship owned by the defendant lawfully discharging her cargo moored to plaintiff's dock. it seems to us that her owners are responsible to the dock owners to the extent of the injury inflicted. unless there is also such a threat to the defendant's personal safety as to justify a self-defense. regulation.  "the law has always placed a higher value upon human safety than upon mere rights in property. No matter how justifiable such appropriation might have been. D's servants cut loose the sloop. the owner of the cable could not recovery its value."  "when malice is shown or when a defendant acted with wanton and reckless disregard of the rights of others. • So the question is can you use force such as this to protect property when the life or well-being is not at stake • A property owner is prohibited form willfully or intentionally injuring a trespasser by means of force. because of the overwhelming necessity of the situation. or ○ The trespasser is endangering human life by his act • Question ○ Should the protection of property ever justify the use of deadly force? Vincent v. and he suffered severe and permanent injuries to his leg. those in charge of the vessel deliberately and by their direct efforts held her in such a position that the damage to the dock resulted." Ploof • P moored his loaded sloop at D's dock to avoid sudden tempest. a person that prevents the use of property in those circumstances is liable for resulting damages. and it and its contents were destroyed in the storm. ○ The defendants testified that they did not intend to injure anyone ○ One night. it would not be claimed that." ○ The court held that a property owner has no right to use force calculated to cause death or seriously bodily injury in order to repel threats to their property unless there is also a threat to the property's owner's personal safety • This would be a different case if someone is breaking into a dwelling and you have to protect yourself. ○ "but here. • Holding: A person has a privilege to use another's property without consent when use is necessary to protect life and property. or eve a petty thief."  "Spring guns and other man-killing devices are not justifiable against a mere trespasser.S.

whether made (1) by its lawmakers or (2) by those whose edicts or acts may fairly be said to represent official policy. city liable when act causing harm done at the policymaking level of government entity or pursuant to policy of that government. government officials performing discretionary functions have qualified immunity against civil damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Pape) Override certain kinds of state laws Provide remedy where state law was inadequate in theory Provide remedy where state remedy. Test for Claim Based on Federal Statutory right 1. and 3.e. the suit is treated as against the governmental entity. any *citizen or resident+ (4) to the deprivation of any rights. or c) other proper proceeding for redress…" ○ Person must be acting under color of state law while depriving someone of a privilege of federal law. and 2.S. though adequate in theory.. Monell and its limitations do not apply • When entity is D. Application to Wilson • There was immunity because law was not clearly established Outline Page 57 . • Monell: City liable "when execution of a government's policy or custom. inflicts the injury" • I. Court must first determine whether P has alleged deprivation of actual constitutional right. 2. 1983 Enforceable Right 1.e. • Most courts hold that standard applies whether action is for damages or injunctive relief • If individuals sued in their official capacities. or 2. (b) suit in equity. Purposes (Monroe v. P's interest not so vague and amorphous as to be beyond judiciary's competence to enforce. Statute itself does not foreclose s. • 1. Statute (or constitutional provision) in question creates enforceable "rights" within the meanign of s 1983. P must show that the (1) officials or (2) official boards that are the relevant final decision-making authority (legislative or executive) within the entity. or immunities secured by (a) the Constitution and (b) laws (5) shall be liable to the party injured in an (a) action at law. and if so 2. thereby implicitly eliminating the remedy Immunity • Qualified ○ Good faith: the actor is immune from legal liability if he was acting in good faith • Absolute ○ Immune regardless of good or bad faith Wilson • Under both 1983 and Bivens. Provision was intended to benefit P Foreclose 1983 Action 1. if action is made possible only because of state acquiescence or support "Citizen of the U. or causes to be subjected. was inadequate in practice -.. etc." but is not vicariously liable for intentional torts of its employees • So when can city be sued? You can only sue the city based on an independent action of the city. municipality. was directly responsible for deprivation • P may recover against entity for nonfeasance (i. naming the individuals as defendants adds nothing • If individuals holding public office are sued in their individual capacities. of any State…(3) subjects. 3. or other person within the jurisdiction thereof…" • Claim can be brought by: ○ All natural persons who are citizens ○ Resident aliens ○ Corporations • Claim cannot be brought by ○ Native american tribe…. Congress invests statute with remedial scheme sufficiently comprehensive as to demonstrate an intent to preclude a s 1983 remedy . township) is a "person." Analytical Sequence 1.) only if failure amounts to "deliberate indifference" to the rights of persons with whom agents come into contact (Canton) "Under color of state law…" • Broadly construed • Can be satisfied even when public official acts contrary to state law • Can even be satisfied by private action. Congress includes express provision to that effect in statute itself. Provision creates obligations biding on governmental unit. county.the federal remedy is supplementary "Every Person…" • "city"(any subordinate state entity:. Court must then determine whether that right was clearly established at the time of the alleged violation. 2. failure to train. privileges.or usage.

• Threat of liability will deter his willingness to execute…. FTCA makes federal government itself liable for intentional torts of law enforcement agents Bivens makes federal gents themselves liable for deprivation of some constitutional rights Sue individuals under Bivens Sue entities under FTCA Outline Page 58 . especially if he acts in good faith.• There was immunity because law was not clearly established Why provide immunity? • Unjust to impose liability on individual charged with exercising discretion.

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