McCoy v. American Suzuki Motor Corp. (SCT of Washington, 1998) – p.

359
 Facts: Bystander (McCoy) pulls over to help someone on the side of the road, gets them back and
driving, as he is walking back to his car, is struck behind by a hit-and-run driver.
 Proc Hx:
o McCoy sued the driver of the Suzuki (person he helped), passenger of Suzuki, the State
(b/c of the negligence of the cop), American Suzuki Motor Corporation and parent corp,
Suzuki Motor Comp.
o Trial Court
 Found that the rescue doctrine applies to product liability actions but concluded
that Suzuki’s alleged defect was not the proximate cause of McCoy’s injuries
 Granted summary judgment for Suzuki
o Ct of Appeals
 Reversed, rescue doctrine applies in product liability cases and the inured party
does not need to prove that the defect was the proximate cause of his injuries.
Instead, injured party only need to prove that ∆ proximately caused the danger
and that rescuer was injured while rescuing
 Issue: Whether the rescue doctrine applies to product liability actions and if so, must the plaintiff
shoe that product defect was the proximate cause of their injuries
o Is a rescue foreseeable within the scope of the original design of the car?
 Considering that there is no duty for a bystander to come to the aid of
another
 Rule: Under the rescue doctrine and as it applies to product liability actions, a rescuer must prove
that the product defect was the proximate cause of the injuries which the rescuer sustained during
their rescue.
o Rescue is a foreseeable event  Suzuki has a duty to foresee the rescue in the
original design of the car
 Holding: Remand for new trial, finding that Suzuki’s alleged fault was not so remote from
McCoy’s injuries that its liability should be cut off
 Reasoning:
o Whether rescue doctrine applies to prod. Liability actions
 Yes, rescuers should not be barred from bringing suit for knowingly placing
themselves in danger
 Use COA’s analysis to conclude that product liability actions are no diff that
other common law actions (re: rescue doctrine)
o Whether plaintiff must prove prox cause
 Yes, must prove proximate cause
 Cite Maltman (helicopter crash p. 361)
 Case was dismissed b/c the helicopter crash was not the proximate cause
of the car accident which they were rescuing someone from
 Keeps with the general principles of liability
o Whether Suzuki was the proximate cause
 Question for the jury to determine whether the injuries were foreseeable
 Ct finds that the defect is not so remote from the rescuer’s injuries to dismiss the
case

Definitions:
 Rescue Doctrine: allows an injured rescuer to sue the party which caused the danger requiring
the rescue in the first place. “Danger invites rescue” – Cardozo
 o Serves two functions:
 Informs a tortfeasor that it is foreseeable a rescuer will come to the aid of the
person imperiled by the tortfeasor’s actions and therefore, a tortfeasor owes the
rescuer a duty similar to the duty he owes the person he imperils
 Doctrine negates the presumption that the rescuer assumed the risk of injury
when he knowingly undertook the dangerous rescue, so long as he does not act
reckless or rashly
o Elements:
 ∆ was negligent to the person rescued and such negligence caused the peril or
appearance of peril to the person rescued
 Peril or appearance of peril was imminent
 Reasonably prudent person would have concluded such peril or appearance of
peril existed
 Rescuer acted with reasonable care in effectuating the rescue
Class notes:
 Suzuki positioned the plaintiff via the defect in the original design
 How is this diff that the mechanic who did not repair the car and therpso nwas shot by the
hunter?
o We’ve decided that the mechanic is not liable because not foreseeable
o Cardozo – “danger invites rescue”  within the scope of Suzuki’s original risk to
foresee a rescuer’s injury
o Rescue was result of negligent act whereas the shot of hunter is not foreseeable
result of the mechanic’s neg
o ANSWER: there is no answer, depends on your stance (π or ∆)
 What if the rescuer had a heart attack as a result of the highly stressful circumstance of the
rescue?
 Maltman result  no liability found  Andrews, not proximate cause, too far away, not
immediate, too remote
 Hartley result  no liability found Andrews, too remote, there are many people who get
their license suspended bc they’ve been drinking and driving, states takes it away, person
gets it back after while, as is the case with sub abuse, they do it again, cycle continues  not
reasonable for the state to be expected to continue to do it over and over as a matter of
public policy
 Keck  rescue doctrine, no prox cause needed  liability found

Section 3: Public Policy

Kelly v. Gwinnell (SCT of NJ, 1984) – p. 367
 Facts: A social host (Zak) served his friend (Gwinnell) two or three drinks of scotch on the rocks
after ∆ drove Zak home. When Gwinnell left, he was involved in a head on collision with Kelly,
causing her serious injuries
 Proc Hx: Kelly sued Gwinnell and his employer, those ∆s sues the Zaks in a third party action,
Kelly then amended her complaint to include the Zaks as direct ∆s
o Trial Court
 Granted summary judgment for Zaks, concluding that a social host is not liable
for negligence of a guest who becomes intoxicated in the social host’s home
o Appellate Court
 Affirmed, noting that NJ does not have a Dram Shop Act and that common law
has only been extended to social hosts and their serving minors
  Issue: Whether a social host who enables an adult guest at his home to become drunk has a duty
to foresee and prevent reasonable risks of their guest’s intoxication
o What is the liability of the social host?
 Rule: A social host who serves liquor to an adult guest with knowledge that the guest is
intoxicated is liable for any foreseeable injuries which may result from the guest’s intoxication.
 Holding: Reverse summary judgment for the Zaks and remand
 Reasoning:
o Public policy
 There are thousands of deaths each year caused by drunk drivers
 Liquor licensees are prohibited from serving intoxicated guests
 To impose the same duty to social hosts would be reasonable and fair per the
State’s policy
o While they recognize that this may diminish the enjoyment of social gatherings, the
added assurance of just compensation to victims as well as the deterrence effect of the
rule outweigh any other values.
Class notes
 Leg has dealt with this already and chose not to make a law
o Think about TX child abuse case  did not make a law to regulate it
o Dissent says: who are we to make the laws, that’s the legislature’s responsibility and
they already decided that social host should not have liability
 Too big of a burden to bare all the liability
 Commercial licensees have clear systems to regulate customers’ consumption,
social hosts are not as well equipped
 Why does majority conclude that there should be a liability anyway? CARDOZO  risk
perceived defines the duty to be obeyed
o Majority says we can’t just allow this to continue
 This is judicial activism

Enright v. Eli Lilly & Co. (COA of NY, 1991) – p. 372

 Facts: π1 (Karen) = granddaughter of DES ingest, π2 (Patricia) = daughter
o π2 alleges that she developed abnormalities of her reproductive system due to her in utero
exposure to DES and that the abnormalities results in several miscarriages and the
premature birth of π1
o π1 suffers from cerebral palsy and other disabilities that πs attribute to her premature
birth and therefore, grandmother’s ingestions of DES
 Proc Hx:
o Trial Court
 π2’s claims were dismissed
o Appellate division
 Affirmed the dismissal on the negligence, breach of warranty, and fraud claims
but reinstated the strict liability court holding that there is strong public policy in
favor of providing the remedy fords victims
o Π2 and her husband’s claims were still pending
 Issue: Whether strict liability is limited in its applications to claims brought regarding in
prescription drug cases where harm is causes to the third generation
 Rule: Liability of drug companies is limited to those who ingested the drug and those who were
exposed to it in utero.
 Holding: Dismiss π2 claim of strict liability
 Reasoning:
 o It is the FDA responsibility to encourage prescription drug companies to make safe
products
o Also important that drug companies warn of the liability of dangers they know or should
have known
o Dangers of overdeterrence- don’t want to discourage research of products that could be
beneficial to the market
Class Notes:
 Albala  not the same fact pattern, about an abortion procedure which caused damages to the
mother’s ability to have children in the future, has child with defects. Hold that the rippling
effects could cause damage for generations  must cut liability to mother and child (utero)
o ANDREWS  proximate cause/remoteness
 This case, as it follows Albala, is ANDREWS too  cut liability where too remote
 Π’s arguments
o 1) the fact that it’s DES should affect their opinion  banned by FDA, DES benefited
from their breach, there are too many victims to say that none of them are due damages
 This was a foreseeable event, no intervening cause, clearly direct relationship
o 2) based on strict liability, this is definitely a breach  court agrees it was breach
because it was a defective product but matter of public policy, this is too remote
 Court holds that despite the breach, it is too remote, can hold them liability indefinitely for all the
rippling effect

Section 4: Shifting Responsibility

 Three main factors to decide liability
o Contract What it said was the duty of the party, were they in an overseeing position?
o Time  How much time involved
o Control Extent party had direct control over the situation to prevent the harm
 Typical scenario: defendant does something, but claims that it was someone’s elses responsibility
o Ex. Product liability  the maker of the part was liable for the defect not the larger
manufacturer
 Typical prod liability scenario
o Designer, manufacturer, and seller = defendants
 Can a π sue each separately? A π is entitled to a single satisfaction so cannot sue
multiple parties and compound your recovery
 Π can choose who they sue for liability – could sue any of or all of the
defendants
 If π chooses only on ∆, ∆ can bring other ∆s in claiming contribution
 Constitutional problem with contribution  need a case and controversy
 Two ways the claim is not viable
o There has been a release signed bt π and ∆ (release means from all liability)
 W/o a viable claim (because it has been released, there is no claim
o Diff that covenant not to sue (K b/t π and ∆ that π promises not to sue, does NOT release
the claim)
 Contribution can be terminated by a release or statute of limitations
o Cant get contribution for intentional torts
 It’s a favor our legal system gives to ∆, no favors where intentional tort is
committed
o MUST be a viable cause of action between ∆ against whom contribution is sought and
the original plaintiff
 Chapter 7: Joint Tortfeasors
Section 1: Liability and Joinder of Defendants

Bierczynski v. Rogers (SCT of Delaware, 1968) – p. 385

 Facts: Two people engaged in a street race (Race and Bierczynski), Race was next to Bier in the
lane of opposite traffic. When they saw the plaintiffs’ car, both slowed down but Race lose
control of his car and skidded into the front of the plaintiffs’ car. Bier remained in the correct lane
at all times, brought his car to a stop about 35 ft from the area of the collison. Never came into
contacts with the plaintiffs’ car
 Proc Hx: Plaintiffs sued both of them alleging their joint negligence. Trial court found that both
were negligent and that negligence was the proximate cause of the plaintiffs’ injuries. Bier
appeals, Race does not
 Issue: Whether a defendant who participated in the negligent act but did not directly cause harm
to another can be held liable for concurrent negligence
 Rule: If injuries result from a concurrent negligent act, each participant can be imposed with
liability for injuries which result from the act.
 Reasoning:
o No Delaware law that specifically states that street racing is illegal but it is negligence
because a reasonably prudent person would not engage in such conduct
o Generally held that person who engages in a race on the highway does so at their own
risk and are liable for injury or damages sustained by a third person that results from the
race
o Because Bier was engaged in the speed competition, he is liable for any injuries which
result from the race
Class notes:
 Summers case (hunters shooting) compared to this case
o In summers, the hunters both shot in the same direction and unknown who specifically
hurt the plaintiff
o In this case, the harm was clearly caused by Race, no question about it
 So why impose liability on both?
o Concert of action case  planned together to do something (the race), did the race
according to plan therefore, liability for the harm caused by the race (which both
contributed to)
 Important to note who is contributing?
 Had there been friends watching the race, would they be liable?
o Likely no because not a contributor, could likely escape liability
 The person who shot the gun at the beginning of the race?
o Probably a contributor

Elbaor v. Smith (SCT of Texas, 1992) – p. 404

 Facts: Smith was in a car accident and treated by several doctors. She filed medical malpractice
action against Syrquin, DFW Medical Center, Elbaror, Stephens, Gatmaitan and ACH. She
settled and dismissed her case against DFW and nonsuited her claim against Gatmaitan. Entered
into a Mary Cafter settlement with Syrquin, Stephens and ACH—agreed to pay her $425K
o Trial Court
 Elbaor requested that MC agreements be voided as it was against public policy or
that ∆s be dismissed from trial  TC denied this request
 Settling ∆s were present at trial and presented definite bias against Elbaor,
attempting to sway the jury to side against Elbaor
  Judgment entered against Elbaor for $1,872,848
o COA affirmed
 Issue: Whether a Mary Carter partial settlement serve their purpose to promote compromise and
discourage litigation
 Rule: Mary Carter partial settlements create a sham of adversity by skewing the trial process,
misleading juries, promoting unethical collusion, and creating the high likelihood that remaining
defendants will be found culpable and therefore, do not serve their purpose to promote
compromise and discourage litigation.
 Reasoning:
o Use bias presented in this case – p. 405
o Create sham of adversity between the plaintiff and ∆ who are actually allied for the
purpose of securing judgment against the remaining defendant
o Public policy favors fail trials over partial settlements

Class notes:
 Mary carter settlements:
o Important to know that benefits exists
 Mixed feeling in the legal community
 Common practice in Canada
o PROS (Dissent)
 makes it was less risky for the π to go to trial, guaranteed to get money from
someone
 wont confuse juries – they can work this out to understand the situation
o CONS (Majority)
 Biased against the remaining defendant
 Mary carter defendants are motivated to have the plaintiff win
 Champerty: someone is involved in the case because they have a big
financial interest
o No one is supposed to be an investor in a case’s outcome
o Always linked with barratry (ambulance chaser, stirring up
lawsuits where they should not be)
 Creates a sham of adversity in the perspective of the jury

Knell v. Feltman (US Ct of Appeals, DC, 1949) – p. 409

 Facts: Langlands were guest passengers in a car driven by Knell. The car collide with a taxicab
and Ms. Langland sustained injuries.
 Proc Hx: She sued Feltman the driver of the taxicab, Feltman filed a third-party complaint
against Knell, asserting the collision was in part or solely due to their negligence
o T/C found both Feltman and Knell liable were negligent, awarding damages
o Knell appealed arguing that contribution should not be available bc πs had not alleged
that Knell was a joint tortfeasor with Feltman
 Issue: Whether contribution by tortfeasors should be enforced only when a plaintiff seeks and
receives judgment against those tortfeasors
 Rule: When a tort is committed by the concurrent negligence of two or more persons who are not
intentional wrongdoers, contribution should be enforced
 Reasoning:
o Use public policy and past decisions to make determination – Merryweather case