TORTS 2 CHAPTER 8 - DAMAGES ................................................................................

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INTRODUCTION.....................................................................................................2 PERSONAL INJURY.................................................................................................4 RODRIGUEZ v. MCDONNELL DOUGLAS CORP...........................................................................4 MCDOUGALD v. GARBER...........................................................................................................6 HAYNES v. YALE—NEW HAVEN HOSPITAL.................................................................................8 WRONGFUL DEATH AND SURVIVAL ACTIONS.........................................................11 ASPINALL v. MCDONNELL DOUGLAS CORP.............................................................................13 McDAVID v. UNITED STATES...................................................................................................14 OTHER COMPENSATORY DAMAGE ISSUES.............................................................16 PUNITIVE DAMAGES ............................................................................................17 STATE FARM MUTUAL AUTO. INS. CO. v. CAMPBELL...............................................................17

CHAPTER 9- AFFIRMATIVE DEFENSES BASED ON PLAINTIFF’S CONDUCT ........21
INTRODUCTION...................................................................................................21 CONTRIBUTORY AND COMPARATIVE NEGLIGENCE .................................................23 HOFFMAN v. JONES ................................................................................................................23 WASSELL v. ADAMS................................................................................................................25 FAILURE TO AVOID CONSEQUENCES; FAILURE TO MITIGATE DAMAGES ...................26 DARE v. SOBULE.....................................................................................................................26 HUTCHINS v. SCHWARTZ.......................................................................................................28 ASSUMPTION OF THE RISK ..................................................................................30 BENNETT v. HIDDEN VALLEY GOLF AND SKI, INC....................................................................30 IMPUTED CONTRIBUTORY FAULT .........................................................................32 CONTINENTAL AUTO LEASE CORP. v. CAMPBELL....................................................................32 WHITE v. LUNDER...................................................................................................................34

CHAPTER 10- OTHER AFFIRMATIVE DEFENSES..............................................36
STATUTES OF LIMITATIONS..................................................................................36 JOLLY V. ELY LILLY & CO..........................................................................................................36 FELTMEIER v. FELTMEIER........................................................................................................38 STATUTES OF REPOSE ........................................................................................40 BRADWAY v. AMERICAN NATIONAL RED CROSS.....................................................................40 EXPRESS ASSUMPTION OF RISK ..........................................................................42 HOLZER v. DAKOTA SPEEDWAY, INC. .....................................................................................42

CHAPTER 11 – COMPARATIVE RESPONSIBILITY IN MULTIPARTY LITIGATION. . . .44
CONTRIBUTION AND INDEMNITY ..........................................................................44 BROCHNER v. WESTERN INSURANCE COMPANY.....................................................................44 JOINT AND SEVERAL LIABILITY ............................................................................46 KAEO v. DAVIS........................................................................................................................46 BROWN v. KEILL .....................................................................................................................48 VARELA v. AMERICAN PETROFINA COMPANY OF TEXAS, INC..................................................49 Partial Settlements ............................................................................................51 MCDERMOTT, INC. v. AMCLYDE ..............................................................................................51 APPLICATION OF COMPARATIVE RESPONSIBILITY TO CAUSES OF ACTION OTHER THAN NEGLIGENCE..............................................................................................54 1

BONPUA v. FAGAN..................................................................................................................54

CHAPTER 12 - IMMUNITIES .........................................................................56
A. GOVERNMENT IMMUNITY ..............................................................................56 1. STATE AND LOCAL GOVERNMENT ....................................................................................56
HICKS v. STATE..................................................................................................................................56

2. FEDERAL GOVERNMENT ...................................................................................................61
a. FEDERAL TORT CLAIMS ACT ........................................................................................................61 UNITED STATES v. GAUBERT .........................................................................................................61 b. JUDICIALLY CREATED IMMUNITY .................................................................................................62 UNITED STATES v. JOHNSON .........................................................................................................62

3. IMMUNITY OF GOVERNMENTAL OFFICERS AND EMPLOYEES.............................................64 4. THE “PUBLIC DUTY” DOCTRINE ........................................................................................64
RISS v. CITY OF NEW YORK................................................................................................................64

B. FAMILY IMMUNITIES......................................................................................66 PRICE v. PRICE........................................................................................................................66 BROADBENT v. BROADBENT...................................................................................................67

CHAPTER 13 - MEDICAL MALPRACTICE..........................................................69
PROFESSIONAL STANDARD OF CARE....................................................................69 MELVILLE v. SOUTHWARD.......................................................................................................69 HARNISH v. CHILDREN’S HOSPITAL MEDICAL CENTER............................................................72

CHAPTER 14 – COMMON LAW STRICT LIABILITY.............................................75
ABNORMALLY DANGEROUS ACTIVITIES.................................................................75 RYLANDS v. FLETCHER............................................................................................................75 SEIGLER v. KUHLMAN..............................................................................................................78

CHAPTER 15 - PRODUCTS LIABILITY.............................................................80
EMERGENCE OF STRICT TORT LIABILITY ...............................................................80 GREENMAN v. YUBA POWER PRODUCTS, INC.........................................................................80 DEFECT ..............................................................................................................81 GRAY v. MANITOWOC CO., INC................................................................................................81 PHILLIPS v. KIMWOOD MACHINE CO........................................................................................82 FELDMAN v. LEDERLE LABORATORIES....................................................................................85 POTTER v. CHICAGO PNEUMATIC TOOL CO.............................................................................87

CHAPTER 8 - DAMAGES
INTRODUCTION
A. Categories of Damages: 2

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There are 3 main categories of damages: nominal damages, compensatory damages, and punitive damages The cause of actions for some intention torts is complete without proof of actual damages. When a plaintiff wins such a case without proving any damages, the court awards nominal damages, which may be defined “as a trivial sum of money awarded to a litigant who has established a cause of action but has not established that he is entitled to compensatory damages.”- Restatement 2d. Designed to vindicate a right. Compensatory Damages- the damages awarded to a person as compensation, indemnity, or restitution for harm sustained by him.”- Restatement 2d. The basic theory behind compensatory damages is restoration of the plaintiff to his or her pre-injury condition, to the extent that an award of money can do that. In causes of action based on strict liability and negligence, the plaintiff must prove compensatory damages as a part of the prima facie case. Most of the litigation occurs under compensatory damages. Punitive Damages- “the damages, other than compensatory or nominal damages, awarded against a person to punish him for his outrageous conduct and to deter him and other like him from similar conduct in the future”- Restatement 2d. – To punish and deter the wrongdoer from heinous conduct (some type of outrageous damages)

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B. Compensatory Damages For Physical Harms to Property For an invasion of land, the basic measure of recovery is any diminution in the land’s value caused by the invasion, or at the plaintiff’s election, the reasonable costs of restoration, plus the value of the plaintiff’s loss of use of the land (the rental value.) When a chattel has been converted or destroyed, the basic measure of damages is its entire value at the time and place of the tort (fair market value). When a chattel has been damaged, but not destroyed, the basic measure of damage is the diminution in value caused by the tort (repair costs are often relevant, but are not the final measure). In all of these cases, the court may also award “consequential” or “incidental” damages. o o Business profits (if proved with sufficient certainty) Example of trespass to land including damages for injury to person or chattels caused by the trespasser.

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C. Compensatory Damages In Personal Injury Cases Three main types of personal injury compensatory damages: 1. Medical (and related) expenses (past and future)- pecuniary damages/ special damages because they are capable of economic evaluation, even though future losses are uncertain. Past medical expenses are established by the hospital, doctor bills. Future losses generally require expert testimony to establish what kinds of expenses are likely to be incurred and how much the expenses are likely to be. 2. Loss of earning capacity (past and future)- includes loss of past earnings pecuniary damages/special damages . Typically past loss of earnings are established by projecting what the plaintiff was earning at the time of the injury through the date of the trial. However, this may require expert testimony if there would have been a change in circumstances, such as promotion, industry layoffs, etc. Future earning capacity loss is typically proven through the use of experts. 3

referring to pain and suffering that can’t be easily measured in dollars. He suffered massive brain damage. and bladder functions. Computer graphics viii. 4 . a. Photographs v. Thermographic imaging. a 630 pound pipe fell on Rodriguez. rehabilitation experts. Facts. He was subsequently hospitalized many times and had many surgeries as well. 399 Page 328 in casebook Procedural History. are those not susceptible of economic evaluation. etc. – This is where juries have the most leeway because there really isn’t anything to follow.non-pecuniary damages. are often part of P’s case iv. Family members iii. These are the type of damages that are sometimes known as general damages. A variety of evidence is used to give the jury a basis for making a finding on the issue of general damages.supposed to show areas of pain according to heat/inflammation PERSONAL INJURY RODRIGUEZ v.App.These may include a variety of types of experts including economists. Charts and diagrams vii. counselors. Wide variety of evidencei.At the conclusion of the trial in 1975. Plaintiff testimony ii. bowl. 3. Due to the negligence of two other contractors. MCDONNELL DOUGLAS CORP California Court of Appeals. Videos vi.5 million dollars. Doctors.3d 626. labor specialists. therapists. Also lost kidney. 1978 87 Cal. McDonnell Douglas was exonerated but found both of the contractors liable for damages to Rodriguez and his wife in the value of over 4. was a sprinkler fitter’s apprentice for a fire protection company that subcontracted to McDonnell Douglas for a hangar modification project. a fractured spine and irreparable damage to his spinal cord.Plaintiff. Physical and mental pain and suffering (past and future). causing him to become a triplegic. 151 CalRptr. Richard Rodriguez. He would never be able to walk again.

An appellate court. then the award is going to be less - - - Earning Capacity o What is the nature of the loss?  What the person could have earned - How does the D deal with testimony of the P’s economist? 5 . in reviewing the amount of damages. must determine every conflict in the evidence in respondent’s favor and give him the benefit of every reasonable inference.Issue(s). The award did not “shock the conscience. it shocks the conscience and suggests passion. prejudice. prejudice or corruption Relatively rare that a judge will overturn an award The jury is not told what other jury’s award other people… so there is no “going rate” when it comes to giving awards to plaintiffs (especially when it comes to pain and suffering.No. there is no real rule) An award could shock the conscience if it is too high or if it is too low.The determination of damages is primarily a factual matter on which the inevitable wide differences of opinion do not call for the intervention of appellate courts. There is a lot of strategizing for where the case is filed depending on the community you are in (juries are different) How does one establish loss of earning capacity? o o Generally an expert witness that is an economist The younger the person is who has a long work history.Did the trial court err in overruling the defendants’ motion for a new trial on the ground that the size of the award suggested that the jury acted on passion and prejudice? Holding.Affirmed Notes from ClassWhat rule did the court apply in reviewing the damage award to the plaintiff? o Appellate may not interfere with the size of the jury’s award unless it is so large that it shocks the conscience and suggests passion. The awards to the plaintiff were reasonable given the grievous nature of the injuries Rodriguez received. An appellate court may not interfere with an award unless ‘the verdict is so large that. at first blush. The defendants produced no evidence that the awards the jury gave reflected passion and prejudice.” Rule(s). Analysis- Disposition. or corruption on the part of the jury.

538 N. companionship. reduce the award.pecuniary damages are generally reduced to present value. nonpecuniary damages are not.2d 246. the spouse of the injured party may have a claim for loss of consortium (loss of sexual relationship. or inconsistencies in their facts What is the obligation of spouse with respect to “attendant care”? o There is not one as a wife to render 24 hours in a day assistance. 536 Page 337 in casebook 6 .In a non death claim. to keep him from talking. companionship. She shouldn’t have to require care around the clock. This would be unreasonable. or guidance in non-fatal cases and some allow parents to recover loss of consortium for injuries to children o o - Reducing awards o New trial (complete or partial)   Remittur – the award was excessive. love and other services Generally applies to spouses Minority view-Some states allow children to recover for loss of society. - Present value.o - Sometimes the best defense is not to say anything. unless you can undermine their data. MCDOUGALD v.2d 937. GARBER New York Court of Appeals. However. The defendant has the option to go back to trial or not. - Inflation o This is taken into account because over time inflation changes and things are not worth the same value as they were before.Y. allows the option to bring the award up to a certain amount of money. the jury didn’t award enough. 1989 73 N. can terminate the case and accept the reduced award or it can be remanded for a new trial Additur.Y.the award was too little.S. - Discount Rate o o o Compounding or calculation of a future value 336-337 Economist picks out the appropriate discount rate based on his experience and education - Present value Consortium o Majority view.

or otherwise aggravated beyond mere negligence.Remanded for a new trial on the issue of nonpecuniary damages for Emma McDougald 7 . McDougald suffered oxygen deprivation which resulted in severe brain damage and left her in a permanent comatose condition. Some states also permit a separate award for loss of enjoyment in addition to the award for pain and suffering. the fact finder does not have to determine degrees of cognitive awareness in order for a plaintiff to recover. Some states do hold that a P need not be conscious to recover damages for loss of enjoyment of life (Hedonic Damages).Y. In addition. Garber.Did the trial court err in instructing the jury that P’s awareness was irrelevant to their consideration of damages for loss of enjoyment of life and in directing the jury to consider that aspect of damages separately from pain and suffering? Does the P have to have some level of awareness? Should loss of enjoyment of life be considered a category of damages separate from pain and suffering? Holding.Plaintiff. Emma McDougald.728 by striking the entire award for future nursing care and reducing the award for conscious pain and suffering and for the loss of the pleasures and pursuits of life. Jury awarded Emma McDougald $9. There must be “some level of awareness” in order for a plaintiff to recover. malicious. Disposition.Yes the trial court erred in instructing the jury that P’s awareness…There must be some cognitive awareness in order to recover nonpecuniary damages for the loss of enjoyment of life. Armengol and Kulkarni. just because enjoyment of life and pain and suffering can be distinguished. Her husband was awarded $1. performed the surgery and defendants.650. Defendant. Court of Appeals.102 in damages for conscious pain and suffering and for the loss of the pleasures and pursuits of life. those which have no compensatory purpose. However.5 million for the loss of his wife’s services.Y. During the surgery. the two do not need to be made into separate categories. Rule(s)1.Action was brought by McDougald and her husband against the defendants for malpractice. On cross appeal.796. Analysis.Jury should not make separate awards for pain and suffering and loss of enjoyment of life. provided the anesthesia. Issue(s). outrageous. are prohibited unless the harmful conduct is intentional. 2. Cognitive awareness is a prerequisite to recovery for loss of enjoyment of life. the appellate division affirmed and later granted defendants leave to appeal to the N. The trial judge reduced her reward to $4. Punitive damages. Infirmary.Procedural History. underwent a C-section and tubal ligation at N. Facts.

- Disagreement among states: o Some allow recovery for loss of enjoyment (hedonic) damages whether or not the P is aware of the loss - A second issue is whether pain and suffering should be treated separately from hedonic damages in making an award o States are split on this - Not all legal jurisdictions make general awards for pain and suffering. courts do not treat them as separate line items. there must be some awareness of pain and suffering Does the plaintiff have to be aware of the loss of pleasures and pursuits of life (hedonic damages)? o o This Court said yes… you have to be aware that you have lost something No standard of awareness though - Should the loss of enjoyment of life be treated as a separate item of damages from pain and suffering? o o No. 699 A. these are really one item.Notes from Class Compensatory purpose v. It is all about what the loss means to the plaintiff. 17. If they are not aware of the loss. Not a damage that is measurable in economic terms. Generally. It would distort the amount of the award and possibly bump it up. Notes 4 and 5 HAYNES v.2d 964 Page 345 in Casebook 8 . YALE—NEW HAVEN HOSPITAL Supreme Court of Connecticut. punitive purpose. however. Other places like Europe do not give out these awards like America does. 1997 243 Conn. punishment/deterrence Does the injured victim (P) have to be cognitively aware of pain and suffering in order to recover damages for such pain and suffering? o o Must be some conscious awareness Not an exact level of consciousness.compensation v. then it does not mean anything to them.

After an hour and a half. She then received $630K from her own insurance agency. and the doctor noticed large amounts of blood in her abdomen due to a laceration of the spleen. The P’s argument would allow her to recover MORE than her full damages. Facts.Affirmed NotesHaynes v.Decedent’s daughter.000.Barbara Freeman. was injured when she was in a car accident with Alan Perrier. Freeman had purchased an additional $900. the other driver.” She was taken into surgery.000 and the insurance company paid Haynes $630. receiving 20K. She was awarded $20.000 she had received from Perrier’s insurance carrier. We are trying to place the injured party in the same position he/she would have been had the accident not occurred. The fundamental principle behind the underinsured motorist insurance is to place the insured in the same position as. She was taken to Yale-New Haven’s emergency room and was treated for a fractured left leg and pelvis. 9 . which was the limit of his insurance coverage. During the surgery she went into cardiac arrest and died.No. Rule(s). Issue(s). but no better than. the limits of the motorist’s liability insurance policy.000 after deducting $20.Did the trial court err in granting the defendants’ motion for summary judgment? Do underinsured motorists benefits fall within the common law rule precluding double recovery or do they fall within the common law collateral source rule? Holding. and received a settlement of $20K from his insurance agency. Susan Haynes. Yale-New Haven Hospital Plaintiff’s mother died in the emergency room following a car wreck caused by another motorist P settled a wrongful death claim against the motorist. An arbitration panel fixed the total damages at $650.Procedural History. the insured would have been had the underinsured tortfeasor been fully insured.000 worth of coverage for herself. brought a wrongful death suit against Perrier. plaintiff’s decedent. the emergency room doctors noticed she was experiencing “an expanding abdominal girth.Double-recovery is precluded by policy. She then filed a malpractice claim against the hospital and the surgeon. The trial court granted the defendants’ motion for summary judgment on the ground that the plaintiff had already received full compensation for the harm suffered by her decedent. Analysis- Disposition.

Then D’s moved for summary judgment on the grounds that plaintiff had already received full compensation of 650k. but you have insurance that will pay 50k. Issue: Did the trial court err in finding that the insurance payment from the mother’s insurer under In other words. It is something that the Plaintiff will have paid for. Motion was granted.received by injured parties from sources other than D. How much can you recover? Collateral benefit says that the insurance doesn’t count toward the 100k that D owes. the worker’s comp insurer o o Typically if a settlement is involved the WC insurer must be involved in the settlement with the tortfeasor. 10 . If you are only entitled to 100k from D. May be granted by statute (typically the worker’s compensation insurer is subrogated by statute to the injured worker’s claim against 3rd persons). Subrogation is also typical in insurance agreements - Insurance issues: o Who gets stuck with the loss between the insurers? - Collateral benefits. or by contract (typically the health insurer is subrogated by contract) Example:  o o If a worker’s comp insurer pays benefits such as medical expenses on behalf of an injured worker. should the underinsured motorist coverage be treaes under the double recovery or the collateral source rule? Double recovery rule o You can only recover one time - - Collateral Source Rule: o A D is not entitled to a credit against the damage award to P for those amounts - The court in this case said that the payments by the underinsured motorist coverage insurer More courts apply the collateral source rule than the double recovery rule to underinsured motorist insurance Subrogation: o o The right to claim recoupment from proceeds paid to the P from the tortfeasor or the tortfeasor’s insurer for payments to the P by P’s insurer (or employer’s insurer) This may in fact result in the right of the subrogated party to sue the tortfeasor directly or to intervene in a lawsuit brought by the injured party to protect the subrogation rights.- P then brought a claim against the hospital and the surgeon alleging malpractice. such as medical or car insurance.

11 o o . typically all beneficiaries must adjudicate their claims in the same suit.” The statutes specified who could recover (usually spouse. If various beneficiaries bring suit. punishable by death. the beneficiaries can bring suit in their own names. Another explanation was that the law generally does not give one person a cause of action for a tort committed against another. then the wrongful death action would apply. Typically the estate rep (the executor of the will or the administrator) must bring the suit. sometimes all the decedent’s legal heirs). and who could bring suit (usually the person authorized to administer the decedent’s estate. they are last in line) Sometimes other heirs and collateral relatives (out of the immediate family) Estate or legatees - - Wrongful death). American jurisdictions adopted statutes permitting actions for “wrongful death. In some states. everything is statute provided o Can recover for:     o o Loss of support Loss of companionship Loss of guidance Loss of services Some states allow for grief and mental anguish (but not in most states) Cause of action exists when the deceased could have brought a claim for his own injuries. Mid-19th century. children.- TORT REFORM WRONGFUL DEATH AND SURVIVAL ACTIONS Common Law permitted no recovery for wrongful death actions. Thus there was no defendant to sue. The explanation was that fell under the felony-merger rule. (Statutorily created with designated beneficiaries) Wrongful death action and survival actions are both statutorily created Beneficiaries (varies from state to state). sometimes parents and siblings. premised on the notion that the negligent or intentional killing of another was a felony. When there has been a tort committed against the deceased for which he could have sought recovery if he had survived. everything is statute provided o o o o o Surviving Spouse is always included Almost all if not all include the children Parents and Siblings may be able to recover in the absence of spouse or children (generally speaking. sometimes any of the persons authorized to recover.

Some states require that the action must be filed before death. A few states allow the recovery of loss of earning capacity in survival actions (i. Sometimes they are recoverable in the wrongful death action. Survival Statutes o o The claim that the deceased could have brought on her own behalf and then she dies. then that claim survives Allows the claims of deceased that came into existence before death to proceed.. Damages would typically include:      o o o o o Post-injury. as long as it falls within the SOL. pre-death pain and suffering of the decedent Loss of earnings from the time of injury until the time of death Medical and incidental expenses Funeral expenses Property damage claims o o A number of states do not permit the survival of defamation claims Punitive damage claims typically do not survive defendant’s death Some states do not permit punitive damage awards when the injured person dies before the judgment Medical and funeral expense claims may depend on who pays them or owes them. earning lost because of the death itself).o - The statute may specifically provide how the proceeds recovered are to be divided among the beneficiaries. 12 . or where the defendant acts with malice or reckless disregard of the safety of others. but subtract personal expenses and support to others (or allow recovery for loss of net savings) Some states have statutes that in essence merge both wrongful death and survival claims into one action Majority. but she could have filed before she died. Others only require the cause of action to have come into being. but do not require filing before death.e.both actions may be brought together o o - Punitive damages: o Purpose:   o To punish (retribution) To deter (defendant and others) Punitive damages may be awarded when the defendant’s conduct may be regarded as willful or wanton. Claims that arose against the decedent before death may be prosecuted against the estate (through the estate representative).

Appellant Aspinall. but never married Aspinall and never adopted her children. he was unmarried and had no issue. it should benefit the public in the state and not only the plaintiff. I. Issue(s).Anthony Price was killed in a plane crash that was manufactured by McDonnell Douglas.Did the district court err in holding that Aspinall and her children were not heirs to the Price estate under the California Wrongful Death Act? 13 .2d 325 Procedural History.o o An intentional tort doesn’t necessarily mean there will be punitive damages. At the time of his death. ASPINALL v. can’t be a “he probably did it” Greater than 51% o o o Punitive damages award may be considered as part of the principal case or it may be considered separately after any compensatory damage award is made. You must prove the intent. MCDONNELL DOUGLAS CORP United States Court of Appeal. he and the appellant lived together for over 4 years and the decedent left his estate to her in his will. Price supported the appellant and her children . Ninth Circuit. Facts. 1980 625 F. appeals from the district court’s order for summary judgment holding that she and her children are not “heirs” to his estate for the purposes of the California Wrongful Death Act. However. a good faith trespass. Standard of proof:   Preponderance of evidence Clear and convincing evidence (Mississippi standard) • • • • • • It is not beyond a reasonable doubt Requires more than “it is more likely than not” Must be obvious Between beyond reasonable doubt and more likely than not Must be convincing to the jury. as representative of the estate of Anthony Price. May state not have caps on punitive damages Some states require that a significant portion of the punitive damages go to the state rather than the plaintiff on the theory that since they are acting on behalf of the public. His parents were deceased and he had no collateral heirs.e.

having no valid will/last testament before death.Whether a decedent’s beneficiaries may recover damages for a decedent’s pain and suffering. W. Rule(s). Page 353 Procedural History.i. Price would have had to have adopted them. where the injuries result in death but the decedent did not institute an action for personal injury prior to his death? Facts. alleging negligence by govt. She also sought damages for his emotional distress and pain and suffering from the time of negligence until his death.No. Government moved to dismiss the claim for pain and suffering. 2003.Holding. The act requires that in order for Aspinall to have been an heir. In order for her children to have been heirs. physicians that caused her husband’s death.Affirmed Wrongful death – for the survivorship (those suing on behalf of the decedent) to recover Survival actions – actions for recovery brought prior to the death of the plaintiff McDAVID v. Issue(s). incurred between the time of injury and the time of death. where the injuries result in death but the decedent did not institute an action for personal injury prior to his death? Holding. Certified question given: Whether a decedent’s beneficiaries may recover damages for a decedent’s pain and suffering. Because he neither married Aspinall nor adopted her children.P sued in federal court.P’s husband died while being treated at a VA hospital.Code 55-7-6. a jury’s verdict may include damages for the decedent’s pain and suffering endured between the time of injury and the time of death. Aspinall and her children cannot be considered heirs under the California Wrongful Death Act.Section 377 of the California Wrongful Death Act defined heirs as “those who would have been eligible to inherit from the decedent’s estate had he died intestate”. UNITED STATES Supreme Court of Appeals of West Virginia.Under the wrongful death act. and for his loss of enjoyment of life. she and Price would have had to have been married.Va. Analysis- Disposition.e. 14 . incurred between the time of injury and the time of death.

Minority Rule for wrongful death acts. Disposition. damages generally are to be assessed in accordance with the loss to the decedent’s survivors. funeral expenses.Under these statutes. “Loss to Survivors” Theory. medical expenses.Majority Rule.where the injury resulted in death but the decedent did not institute an action for personal injury prior to his or her death. The statute may specifically provide how to proceeds recovered are to be divided among the beneficiaries.1. The victim who is permanently disabled is entitled to recover for lost earning capacity for the remainder of his or her expected life. but that can put the tortfeasor whose victim dies in better position than one whose victim is permanently disabled. in most states the tortfeasor has to pay only the portion of the earning that the decedent would have contributed to survivors plus the decedent’s lost earnings from the tort until death The tortfeasor escapes liability for (a) earnings the decedent would have spent on himself or herself and (b) earnings the decedent would have saved and thus passed on to his or her estate.measure damages by the loss to the decedent’s estate.355-56 Loses to the Decedent’s Estate Usually wrongful death recovery gives the survivors only the portion of the decedent’s income that he or she would have spent on them. Rule(s). These allow for the estate to recover its losses—such as lost income. A few states avoid this situation by construing their survival statutes to permit the estate to recover for the wealth the decedent would have likely accumulated during his or her natural lifetime.recovery allowed Notes: Typically all beneficiaries must adjudicate their claims in the same suit. with many states limiting recovery to the pecuniary losses of the decedent’s survivors caused by the decedent’s death. or any other damages related to the decedent’s fatal injury. Note p.the financial support they lost by virtue of the wrongful death Most survival statutes limit recovery to losses sustained before death. When the victim is killed. - - - Loss of Consortium in Non-Fatal Cases 15 .

If the plaintiff chooses to blow the money. Most of the modern American cases confronting the issue have eliminated the discrimination by recognizing a wife’s cause of action for lost consortium. It requires that all future losses be calculated at one moment in time. - Taxation Punitive damages are subject to federal income tax. - Periodic Payments Problems with lump sum payments: o Awards for pecuniary losses usually are reduced to present value on the theory that the plaintiff can use the award to make more money by investing it. and the plaintiff’s condition o - A number of states permit or even require the court to arrange for periodic payment of certain types of judgments (ex. medical costs. inflation. the question naturally arose whether family members of seriously injured persons could recover such damages in non-fatal cases. The court of appeals approved that procedure and said most jurisdictions agree that jurors should be told nothing about taxation. or at least when the suit is filed. precluding future adjustments for changes in earnings. - OTHER COMPENSATORY DAMAGE ISSUES Interest Once a judgment is entered in a personal injury case. McDonald. treatment methods. The majority of jurisdictions confine loss of consortium in non-fatal cases to spouses Some recent decisions have allowed children’s claims for loss of an injured parent’s consortium and parent’s claims for loss of an injured child’s consortium. courts have been inclined (or direct by legislatures) to award prejudgment interest on the theory that the tortfeasor’s obligation to make the victim whole arises when the injury occurs. Supreme Court has held that defendants in Federal Employers Liability Act (FELA) cases are entitled to have the jury told that compensatory damages are not taxed.- Once courts began allowing for the loss of society in wrongful death cases. 16 . the tort system’s objective of making the injured party self-sufficient is frustrated.medical malpractice or against governmental entities) Structured Settlements Far more common are settlement agreements providing for periodic payments rather than a lump sum. In Rodriguez v. Increasingly. the amount normally is treated as a debt owned by the defendant and interest begins to accrue at a rate that is usually set by statute. but compensatory damages are not. the trial court forbade the parties from introducing evidence relating to taxation.

but the Utah courts held that State Farm acted in bad faith in failing to promptly settle the suit against the Campbell’s when they knew that Campbell was at fault.849. CO. Occasionally Congress creates ad hoc compensation plans to bypass tort liability in specific situations. I. 123 S. 408. The idea is that certain classes of injuries. such as automobile accidents. legislatures have imposed caps on compensatory damages In some states the cap applies only to certain types of cases or certain types of damages Opponents of caps argue that they make the most seriously injured plaintiffs bear the costs of tortious conduct while leaving whatever imperfections are thought to require modification of the common law damages rules unaffected in the vast majority of cases where damages do not reach the cap Proponents of caps say that they are a simple way of reducing the cost of tort liability and insurance premiums - Alternative Compensation Schemes Best known alternative is workers’ comp.g. and attempts by employees to get out of the workers’ comp scheme and into the tort scheme generate numerous litigation Another alternative is no fault insurance. at least up to a specified amount. a fixed number of years..Victim Compensation Fund after 9/11 - - - PUNITIVE DAMAGES STATE FARM MUTUAL AUTO.Ct. or until the plaintiff ultimately receives. Cap on Damages In more than half of the states. The Utah SC upheld an award of $1 17 . are compensated by the victim’s own insurance.. 2003 538 U. CAMPBELL Supreme Court of the United States. all states and the federal government have statutes giving employers immunity from most tort liability for on-the-job injuries or occupational diseases in exchange for their contributions to a fund of insurance plan which pay injured worker benefits in amounts that are administratively determined.e.S. over an 8 year period.- Parties often negotiate a structured settlement in which the defendant agrees to buy the plaintiff an annuity that guarantees the plaintiff specified monthly or annual payments for a specified period such as the rest of the plaintiff’s life.A jury determined that Campbell was 100% liable and returned a judgment for $185. State Farm eventually paid the entire award. There are numerous exclusions. for intentional torts. The theory is that this is less costly than a system in which the defendant’s insurance pays only after the victim establishes the defendant’s liability under tort law. v. e. 1513 Procedural History. INS.

and it was an irrational and arbitrary deprivation of the property of the defendant. The court erred in awarding punitive damages to the Campbells to punish and deter conduct that was not related to the Campbells’ harm. State Farm. decided to contest Campbell’s liability in the accident and declined settlement offers from the estates of the others injured. A D should be punished for the conduct that harmed the P. Campbell’s auto insurance company. Gore): o o o The degree of reprehensibility of the defendant’s misconduct The disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award The difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.Did the lower courts err in granting excessive punitive damages in violation of the due process clause of the 14th Amendment? Holding. Disposition.Campbell was involved in a collision with two other individuals. Instead. Issue(s). It also upheld an award of $145 million in punitive damages based on the findings that State Farm’s refusal to settle the case against the Campbells was part of a nationwide scheme to meet corporate financial goals by underpaying claims. Rule(s). One was killed and the other was permanently disabled. 18 . The state of Utah did not have a legitimate concern in imposing punitive damages to punish a D for unlawful act committed outside of its’ jurisdiction.million in compensatory damages for the Campbell’s emotional distress. or where the D’s acts with malice or reckless disregard of the safety of others.Yes. not for being an unsavory individual or business. The punitive award of $145 million was neither reasonable nor proportionate to the wrong committed. 3 guideposts for courts to consider when reviewing punitive damages (BMW of N America v. they took the case to trial. Facts.The Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor.Reversed and remanded Notes -Punitive Damages may be awarded when the D’s conduct may be regarded as willful or wanton.

BMW of North America: o 3 guideposts    Degree of reprehensibility Disparity between actual/potential harm to plaintiff and the punitive damage award The disparity between the punitive damage award and the “civil penalties authorized or imposed in comparable cases” - - Factors in considering reprehensibility o o o Type of harm. Mutual Auto. fraud. which was less than what the insured was exposed to.physical/economic mental state (indifference/reckless disregard) Vulnerability of the victim financially repeated or isolated misconduct Motive. -Many states now have damage caps on punitive damages. the exposure of Campbell was much greater than the policy limit. Ins.malice. 19 . or accident - Disparity between actual/potential damages and punitive award” o o No bright-line ratio.-Standard of Proof: Either by preponderance of the evidence OR clear and convincing (MS) evidence -Punitive damage award may be considered as part of the principal case or it may be considered separately after any compensatory damage award is made. Larger the compensatory award. Campbell Constitutional issue: Due Process Clause (14th Amendment) State Farm had a duty to settle because they had a chance to settle at the policy amount. - State Farm v. the smaller the ratio that is likely to be awarded - Differences between civil penalties that are authorized or imposed in similar cases and the amount of punitive awarded by the jury Other limits: State law cannot reach conduct of the defendant that is lawful in another state to punish such conduct. Some states require that a significant portion of the punitive damages go to the state rather than the plaintiff. but court will look unfavorably on awards that exceed a single digit ratio. In this case. Co. v.

- Punitive damages must relate to relevant conduct Defendant must have notice that the conduct is subject to punitive damage claims Scalia and Thomas dissented on the ground tha the const does not constrain the size of punitive damages 20 .

contributory negligence. Examples of affirmative defenses: o o o o o o o o o Release (as in a settlement agreement) Discharge in bankruptcy Res judicata. is pleaded and proved by the defendant.CHAPTER 9. waiver. arbitration and award. failure of consideration. SOL. estoppel. failure of consideration. discharge in bankruptcy. payment. accord and satisfaction. and any other matter constituting an avoidance or affirmative defense. SOF. SOF. duress. will defeat or reduce the liability that plaintiff has otherwise established. assumption of risk. res judicata.any matter that. the defendant may rely on any relevant admissible evidence introduced by any party to the action. illegality.the thing has already been adjudicated. waiver Laches Statute of Limitations - - Rule 8(c) of the FRCP requires a defendant relying on an affirmative defense to “affirmatively” plead it. - In most states. the defendant must plead and prove contributory or comparative negligence and assumption of risk - Traditional rule was contributory negligence. The defendant has the burden of proof to show that the plaintiff engaged in some kind of conduct that resulted factually and legally in his/her own injury. In bearing the burden of proof. injury by fellow servant. license.negligence of the plaintiff in being a factual and legal cause of his or her own injury is a complete bar to plaintiff’s recovery (recovered nothing) Courts attempted to mitigate harshness: kind of an all or nothing proposition 21 - . and lists as the affected defenses: o Accord and satisfaction.AFFIRMATIVE DEFENSES BASED ON PLAINTIFF’S CONDUCT INTRODUCTION Affirmative defenses. The court has already entered a judgment and it can’t brought again Estoppel. laches. fraud. illegality. not just evidence introduced by the defendant.bared from bringing this claim due to some legal impediment Arbitration and award Fellow servant doctrine (Worker’s Comp) Duress. release. fraud.

even though both were at fault - Under common law rules. the damages might be able to be mitigated (inducement or provocation) - Comparative Negligence o o o o o o Liability is apportioned or shared according to assessment of fault or responsibility Mississippi was the first state to adopt the comparative negligence standard (1910)it was adopted by statute Not until the 1960’s did other states begin moving toward a generally applicable comparative negligence regime for torts By court adoption or by legislation Mississippi did so by legislation. then the P’s negligence is ignored and all of the blame falls on the D. and the D is negligent in failing to perceive that peril and to avoid it. if the tort is intentional. active negligence  If the P is passively negligent and D is actively negligent. 5 contributory jurisdictions:     Alabama Maryland North Carolina Virginia 22 . (Not very sensible) o Last clear chance doctrine  If the P is negligent in putting herself in a position of peril. the P’s negligence does not matter If there is an intentional tort. The court would say that the duty you owe to yourself is not as important as the duty that you owe to others. the same conduct was not deemed to be negligent for the P.o Ignoring plaintiff’s negligence or applying a double standard  What was negligent for the D. then D should be responsible for the loss - All or nothing approach: o Either P or D bore the entire loss. then the D has the last clear chance to avoid the accident. o o o Plaintiff’s negligence is slight in comparison to defendant’s Defendant was grossly negligent or willful and wanton (reckless) Passive v.

D. which certified the following question the state supreme court: Whether or not the Court should replace the contributory negligence rule with the principles of comparative negligence? Facts. in some degree. the jury should apportion the negligence of the P and the negligence of the D.P’s husband was killed in a traffic accident that resulted from a combination of his own negligence of the other driver. a legal cause of the injury to the P.Remanded to trial court for a decision consistent with this ruling 23 . The trial judge gave the standard contributory negligence instruction. this does not defeat the P’s recovery entirely. the jury should give the P only such amount proportioned with his negligence and the negligence of the D. P appealed to the intermediate appellate court.Yes.The trial judge denied P’s request to instruct the jury on comparative negligence. JONES Supreme Court of Florida. To allow a jury to apportion fault as it sees fit between negligent parties whose negligence was part of the legal and proximate cause of any loss or injury. 1973 280 So. Issue(s). In other words. A plaintiff in an action for negligence will no longer be denied any recovery because of his contributory negligence. Washington.Did the trial court err in denying P’s request to instruct the jury on comparative negligence? Holding.C. and 2. Rule(s)1. and the jury returned a verdict for the defendant.2d 431 Procedural History. The jury in assessing damages as in the jury’s judgment the negligence of the D caused to the P. then in reaching the amount due the P. CONTRIBUTORY AND COMPARATIVE NEGLIGENCE HOFFMAN v. If it appears from the evidence that both P and D were guilty of negligence which was. To apportion the total damages resulting from the loss or injury according to the proportionate fault of each party Analysis- Disposition.

- Modified 51% system.NotesShould Florida judicially adopt comparative negligence regime in place of contributory negligence rule? o Yes… the court did adopt this as the new rule Contributory negligence is a judicially created rule Generally regarded as unjust and harsh Movement has been away from contributory negligence toward comparative negligence Justifications for contributory negligence are not valid in the modern era Comparative negligence is more equitable.7 p. Look at n. One system says if there is a 50/50. and modified 50% system o o o o If the P’s negligence exceeds a certain %. Efforts by the courts to ameliorate the harshness of the rule are unsatisfactory Florida adopted “pure” comparative fault o Plaintiff may recover damages in the amount of the percentage of responsibility of the defendant for the accident after apportioning responsibility between the plaintiff and the defendant (if the plaintiff is also at fault). It doesn’t matter what the % are. as long as they add up to 100%.do you tell the jury about the effect of p’s negligence? – tendency to tell the jury. then the D is not required to pay for any damages.Must be 50% or less for P to recover The other says if the P is above 51%. but maybe half and half 24 . then P does not recover Majority of states that use modified rules.385. P gets nothing – If P is equally or more negligent than D.P gets nothing. Contributory negligence rule is often disregarded by juries. use the 50% standard. regarding set-off Jury instructions in modified systems.

When she returned from fetching the water.Did the district court judge err in denying P’s request for JNOV? Did the district court judge err in not allowing P’s motion for a new trial? Holding. and must be considered simple negligence. their negligence was not willful or wanton. P has suffered great emotional distress. 7th Circuit.2D 849 Page 386 Procedural History. she would have opened the door no matter how dangerous she believed the neighborhood to be. P’s attorney moved for JNOV on the grounds that she had either not been negligent as a matter of law or that her negligence was immaterial because the D’s negligence was willful and wanton in their disregard for her safety. Subsequently. Issue(s). The negligent P could recover nothing. 855 F. Reasoning/Analysis. 25 .P was a tenant of the Rin-Ric Motel. and was told that there was nobody by that name there. Rule(s). Thus. -Appellate Courts are not the trier of fact. which was owned by the defendants.After the date the action was filed. He then asked for a glass of water to which the P obliged.Trial Court jury awarded P $850. and they are only authorized to upset the jury’s apportionment if persuaded that the trial judge abused his discretion in determining that the Jury’s verdict was not against the clear weight of the evidence. He asked for another woman. Thinking this. 1989. Note. P was awoken by a knock at her door around 1:00 a.It is unlikely that a warning would have averted the attack.The common law refused to compare the P’s and the D’s negligence. Judge denied to motions and P appeals.000 worth of damages. IL adopted a new statute that bars a P from recovery when they are more than 50% negligent in causing the injury for which recovery is sought.No.WASSELL v. No rational jury could find that the D’s consciously disregarded a high probability of serious physical harm. He proceeded to rape her. This was located in a bad area of town. the man was in her room. which was reduced to $25.000 since she was ruled to be 97% at fault. Facts. P testified that she thought the man who had knocked on the door was her fiancé. unless the D’s culpability was of a higher degree than simple negligence (willful or wanton). A well dressed black man was on the other side of the door.m. ADAMS United States Court of Appeals.

Because Colorado is a modified comparative fault state. Wassell rapist situation? FAILURE TO AVOID CONSEQUENCES.g. 1984 674 P.mutually agree fight (or in the circumstance of fighting words exchanged) v. FAILURE TO MITIGATE DAMAGES DARE v. The trial court refused to enter the evidence to the jury that failure to wear a helmet while operating a motorcycle is not contributory negligence.2d 960 Procedural History.Affirmed.Disposition. The Circuit court of appeals affirmed. two witnesses testified that decedent was not wearing a protective helmet at the time of the accident. good or bad. 26 ..losing favor Intentional torts o Comparative fault. SOBULE Supreme Court of Colorado. Petitioners did not object to the introduction of the evidence.does it depend on the facts?  E. the plaintiff took nothing and appealed.Petitioner’s (Dare) brought this action against Sobule to recover damages for the wrongful death of their son. The jury found that both the decedent and the defendant were negligent. NotesAppeal from denial of motions for JNOV What happens to the distinctions at common law involving “willful and wanton” and “gross” negligence? Do these survive insofar as preventing plaintiff’s negligence from being considered in reduction of her recovery? What should the effect of conscious disregard of another’s safety be in a comparative negligence system? How do juries apportion damages between a P and D when both have acted negligently? Is it really a matter of comparing costs of avoidance? Is it a matter of declining the degree of departure from the norm? Is it mostly an intuitive matter? Ameliorative doctrines. The decedent was found to be 80% liable and the defendant was 20% liable. At trial.

Third. Second. evidence of a plaintiff’s failure to wear a protective helmet while riding a motorcycle is inadmissible to show negligence on the part of the plaintiff or to mitigate damages. for three reasons. First. allowing the defense would lead to a battle of experts as to what injuries would have or would not have been avoided had the P been wearing a helmet. decedent.Tracy Dare. evidence of a plaintiff’s failure to wear a protective helmet while riding a motorcycle is inadmissible to show negligence on the part of the plaintiff or to mitigate damages. The motorcycle struck the vehicle and Dare was thrown over the car. -Rational behind Dare: 1. Disposition. landed on his head. Yes. a D should not diminish the consequences of his negligence by the failure of the injured party to anticipate D’s negligence in causing the accident itself.The improper admission of evidence of failure to wear a protective helmet provides rational explanation for the jury’s findings that the decedent was 80% liable. 2.Reversed and remanded NotesEvidence of failure to wear motorcycle helmet or seatbelt is not admissible to establish contributory negligence or to reduce the plaintiff’s damages. Under the law of comparative negligence in the state of Colorado. a defense premised on an injured party’s failure to wear a protective helmet would result in a windfall to tortfeasors who pay only partially for the harm their negligence caused. Rule(s). Analysis.The General Assembly of Colorado has not mandated the use of protective helmets as a standard of conduct. Under the law of comparative negligence in the state of Colorado. was riding a motorcycle when Sobule. Rule avoids windfall to D in allowing him to avoid full consequences of his misconduct 27 - . who was driving an automobile made a left turn in front of Dare’s motorcycle. Issue(s)1. Whether the court should impose a standard of conduct for those riding motorcycles? Holding1.Facts. and died as a result of head injuries. You don’t need to anticipate the negligence of others. No. Did the trial court err in refusing to instruct the jury that failure to wear a helmet when riding a motorcycle was not contributory negligence? 2.

2d 1194 Procedural History. 28 . The jury was instructed to disregard all evidence relating to Hutchins’ failure to wear a seatbelt. This motion was denied and P’s appealed. This request was denied by the trial judge. and a broken big toe. No.P sued D for $275K in compensatory damages. Defendant should not diminish consequences of his negligence by failure of innocent party to anticipate the defendant’s wrongful conduct Other arguments o o Absence of legislative mandate No duty to mitigate before injury occurs HUTCHINS v. Issue(s)1. bruises on his chest. SCHWARTZ Supreme Court of Alaska. The judge granted Hutchins’ motion for a directed verdict on the seatbelt issue. then the jury should be permitted to consider the factor in assessing damages. 1986 724 P. The awarded Hutchins $1.Hutchins was injured in an automobile accident with Schwartz.09 in damages. Hutchins was not wearing his seatbelt at the time of the accident and sustained cuts on his head. Facts. Did the trial court err by admitting evidence of Hutchins’ failure to wear a seatbelt? 2. knee and wrist. The jury found that Hutchins was 40% liable and Schwartz was 60% liable. If under the facts and circumstances of the case a reasonably prudent person would have used a seatbelt and if plaintiff suffered more severe injuries as a result of not wearing a seatbelt.937. Avoids battle of the experts (least compelling of the three made here) 3. He filed a motion in limine to exclude evidence of his failure to wear a seatbelt. Did the trial court err by denying his motion for JNOV and/or new trial? 3.2. Whether the court should impose a duty upon a person to wear a seatbelt when driving a car equipped with one? Holding1. Hutchins moved for JNOV and/or a new trial.

Many states forbid introduction of seatbelt evidence to show comparative fault negligence. especially when that conduct involves an unnecessary risk. Insurance Co. The fact that many motorists do not wear seatbelts may suggest that a failure to wear a seatbelt does not violate a substantial standard of care. the general availability of seatbelts. Generally they do not have a negative impact on P’s recovery. and a few other areas. Rule(s)Foley v. Automobile accidents are foreseeable. Use comparative fault to allocate that value. the jury could have found that Hutchins was traveling too fast for the road conditions. He is not liable for the value of the enhanced injury that is attributable to the P’s failure to mitigate. the court concluded that failure to wear one could be a pertinent factor for the jury to consider in determining damages. there is an evidentiary basis for the jury’s finding that Hutchins was 40% comparatively negligent. In some jurisdictions it can be introduced in products liability. A plaintiff only recovers damages for injuries caused by defendant and not for those that plaintiff could have prevented by wearing a seatbelt. Just because you are in a comparative negligence system. Yes. City of West Allis. reasonable minds could differ as to whether Hutchins’ headlights were on or off. and the public knowledge that riders and drivers should “buckle up for safety. You are not generally required to anticipate the negligent conduct of another person. the D may be entitled to reduction of damages. 3. Comparative (or contributory) negligence: Pre-accident conduct by the victim that was a cause of the accident and hence all of the injuries or damages. If he fails to do so. Actions that could have been taken by P beforehand. No. In conclusion. - AnalysisDisposition. Failure to mitigate damages refers to what you do after the injury happens. Pasakarnis-In light of the importance of the seatbelt as a safety precaution and the minimal effort required to fasten an available seatbelt.” those who fail to use available seatbelts should be held responsible for the incremental harm caused by their failure to wear available seatbelts. Plaintiff has a duty to act reasonably after the damage is done in order to recover. Notes 2 and 3 on page 401 - - - - 29 .Affirmed NotesThis is a minority view.2. the fact that a majority of people act in a certain manner does not make that conduct reasonable. However.In light of the realities of the frequency of automobile accident and the extensive injuries they cause. After reviewing the evidence. of North America v. does not mean that you do not talk about the P’s contributory negligence in the accident. Failure to avoid consequences is generally not required. Additionally.

She was thrown about 5 feet forward and hit the ground limp. Bennett moved for a judgment as a matter of law. Eighth Circuit. or experience”. United States Court of Appeals. barricade. The jury returned a verdict in favor of Hidden Valley. Bennett claims injuries as a result of the accident.No and no. in permitting obstructions. protect. ability.Bennett’s action against Hidden Valley alleged that Hidden Valley was negligent in the design. Under Missouri law. She had limited experience as a skier. Did the DC err in denying Bennett’s motion for judgment as a matter of law because Hidden Valley did not make out an assumption of risk defense? Holding. and staffing of its skiing facilities. regardless of her subjective knowledge of those risks. and in failing “to guard against. in failing to “warn of dangers and obstructions which it knew or reasonably should have known were present at its facilities and ski slopes”. to “exist in the path of skiers at a time when (it)…should have known that such obstructions posed a hazard or risk of injury”. The case proceeded to a jury trial. At the close of all of the evidence. including tress and jumps. INC. The DC denied the motion. 2003 318 F. claiming that Hidden Valley had not established its affirmative defense as assumption of the risk. a voluntary skier assumes the risk inherent in or incidental to skiing. While she was skiing down a slope marked for intermediate difficulty. in providing its customers with “unrestricted access to advanced and intermediate ski areas without assessing (their) ski aptitude. By directing the jury to find for Hidden Valley if it determined that the conditions on the ski slope at the time Bennett 30 . in the supervision of its customers “so as to prevent or cure dangers created by such business invitees”.ASSUMPTION OF THE RISK BENNETT v. Bennett appealed. Did the DC err in instructing the jury to find for Hidden Valley if the conditions Bennett encountered “were risks inherent in the sport of skiing?” 2. Facts.” Hidden Valley denied negligence and raised assumption of the risk as a defense. She was 16 years old at the time. including brain damage and a diminished future earning capacity. HIDDEN VALLEY GOLF AND SKI. but had formed as skiers and snow boarders cut across the slope and moved the snow. maintenance. she fell on a bump in the ski slope. or cushion knowable obstructions in the path of skiers upon its ski slopes.3d 868 Procedural History.Bennett went with two older male friends to Hidden Valley for a midnight ski lesson. The proprietor of a ski area has no duty to protect a skier from those risks incidental in skiing. Issue(s)1. The bump on the slope was not intentionally created by Hidden Valley.

This does not mean that he assumes the risk of being injured by the proprietor’s negligence but that by voluntarily entering into the sport as a spectator but that by voluntarily entering into the sport as a spectator he knowingly accepts the reasonable risks and hazards inherent in and incident to the game.Affirmed NotesAssumption of the risk Three uses of the term: o Express assumption of the risk  o When there is a written assumption of the risk in writing by the P. The DC therefore did not abuse its discretion by giving this charge. who waives the negligence claim prior to the injury (ex. Rule(s). A participant in sport accepts those hazards that reasonably inherent in the sport so far as they are obvious and usually incident to the game 2.was injured were inherent risks of skiing. involuntary and unreasonable knowing of the risk Use to be a complete bar to recovery 31 . Analysis- Disposition. Instruction 7 fairly and adequately submitted the issue to the jury.Affirmative defense in the State of Missouri: The defense applies where the parties have voluntarily entered a relationship in which the plaintiff assumes well-known incidental risks.amateur drag racing) Implied primary assumption of the risk    Come about in the context of comparative negligence In the nature of a lack of duty. the defendant has no duty to protect the plaintiff 1.” A plaintiff’s consent to assume the risk is implied from the act of electing to participate in the activity and as to those risks. The patron subjects himself to the dangers necessarily and usually incident to and inherent in the game.more like a no duty rule Used to be a complete bar to recovery o Secondary implied assumption of the risk    Most often associated with assumption of the risk A knowing.

CAMPBELL Court of Appeals of New York. During said rental. 32 . even though both drivers were found to be contributory negligent. but returned a verdict for Continental.- Express assumption of the risk o Contractual in nature. subjective and arguably stronger than arguing contributory negligence - Mississippi has abolished assumption of the risk as a separate defense that acts as a total bar to recovery and treats the plaintiff’s conduct under general principles of comparative negligence.an agreement not to hold someone liable for negligence prior to some activity or occurrence. Issue(s). Appellate Division affirmed. still applies in AL). 19 N. Upon the trial. No duty issue.is the risk inherently dangerous? And is it generally known? - Secondary Implied Assumption of the Risk o Plaintiff has knowledge and appreciation of the danger posed by defendant’s negligence and voluntarily chose to expose himself to the danger (most states that use comparative fault have abolished this kind.Did the trial court err in ruling that the negligence of Kamman was not imputable to Continental? Or if it was imputable to Continental. - Implied Primary Assumption of the Risk o o o No duty Plaintiff assumes any risk inherent in an activity (typically as a participant or spectator in a sport) Objective test. assumption of the risk is a complete bar to recovery - Note 4 IMPUTED CONTRIBUTORY FAULT CONTINENTAL AUTO LEASE CORP.2d 350 Page 411 Procedural History. Facts. the jury found both drivers negligent. Shepard has since died. 1967. and Campbell is his administrator. Kamman was involved in an automobile accident with Ralph B. rented a car to a gentlemen by the name of Kamman for a 4 day period. should Continental’s recovery have been barred by contributory negligence. Shepard. except in products liability cases o In products liability cases in MS.Trial Court jury awarded judgment for Continental.Continental Auto Lease Corp. v.Y.

Continental had no interest in where or when the vehicle was driven and no relationship to Kamman consistent with the inference that it had the right to control in any manner Kamman’s conduct as a driver. If P were D.based on an injury to someone else (consortium. That person’s negligence is treated as if it were the plaintiff’s own negligence in terms of its effect on the plaintiff’s recovery against a third person. Reasoning/AnalysisDisposition.Affirmed. the employees negligence can be imputed to the employer to offset the damages of a third party Most common ways to impute damages (Both Ways Rule) o o o Employer/ Employee Employer/ Independent Contractor Joint Venture or Enterprise (Partnership in business) - Imputed damages o Derivative claims. when the employer is the P. Notes. could he be held vicariously liable? If yes. 2. Rule(s)-1. If a car owner’s relationship to the driver of his car is such that a degree of physical control over the driver can reasonably be deemed to exist. wrongful death and survival.Holding. then his claim can be imputed If the employer is vicariously liable.Imputed contributory negligence Similar in concept to vicarious liability But purpose is different. then the negligence of the driver can be imputed to bar the owner’s recovery against a negligent 3rd party. Kamman’s negligence should not be imputed to Continental to bar its recovery in this action. One who is injured by the negligent operation of a motor vehicle should have recourse to a financially responsible defendant. 33 .When the plaintiff’s cause of action is derivative. bystander) - Case Notes o NY 1967:  o Is the fault of a bailee of a commercial bailor imputable to the bailor in the bailor’s claim against the bailee’s co-tortfeasor? No imputed negligence to commercial bailor for bailee’s negligence in claim by bailor against third person for negligent damage to bailor’s property. parent’s claim for medical expenses incurred for child (not always).to restrict liability rather than broaden liability Imputed contributory negligence is when the plaintiff is held accountable in terms of assessing responsibility for an injury for the negligence of someone else. Accordingly.No.

Lloyd White.WHITE v. Issue(s). LUNDER Supreme Court of Wisconsin. Additionally. was precluded from recovery because he and his wife were 63% contributory negligent. Lloyd White. that will allow recovery in derivative actions where the causal negligence of the person against whom recovery is sought is greater than either the husband or wife can be accomplished by reducing the entire award both medical expenses and loss of consortium by the percentage of negligence attributed to the injured spouse.Did the trial court judge err in combining the negligence of both the Plaintiff and his wife for the purposes of comparing negligence with that of the third party for a claim for medical expenses and loss of consortium? Are these claims derivative? Holding. when dealing with multiple parties who are contributory negligent to an accident. when dealing with derivative claims.Trial Court ruled in favor of defendant.Rosemary White and her husband. consistent with the statute. By this method the person who was found to be causally negligent in greatest degree cannot escape all liability but his liability is decreased by an amount proportionate to the two other tortfeasors. he was barred from recovery. 66 Wis. as well as James Lunder were involved in a boating accident. 30%. A workable construction. 1975. but any damages allowed shall be diminished in the proportion to the amount of negligence attributable to the person recovering. These were derivative actions. 33%. Accordingly. and Lunder. Notes34 . ruling that P/Appellant.2d 563 Page 414 Procedural History. the apportionments should not be added together for the purposes of deciding whether recovery should be precluded.A person should not be precluded for summary judgment. Rule(s). The trial court judge combined the negligence apportionment of Plaintiff and his wife (63% total). so long as his contribution to the negligence is less than that of the person to which he seeks to recover.Reversed.Yes. 37%. The Wisconsin statute for comparative negligence provides that contributory negligence shall not bar recovery if such negligence was not as great as the negligence of the person against whom recovery is sought. Award for Plaintiff/Appellant consistent with this opinion. Lloyd White. Reasoning/AnalysisDisposition. and further reducing the entire award by the percentage of causal negligence attributable to the claiming spouse. The trial court jury apportioned the causal negligence among the parties to Rosemary White. Facts.

- What is the effect of the wife’s negligence on husband’s consortium claim against defendant? Wisconsin’s early comparative neg standard.if P’s negligence is equal to or > D’s negligence= no recovery Note 2 after case Imputed negligence doesn’t apply to claims by persons against others as to whom negligence might be imputed when an “outsider” makes the claim 35 .

P could have filed suit against a “Doe Party. from the time such a complaint is filed.No. Here. she must decide whether to file suit or sit on her rights. the P has 3 years to identify and serve the defendant. P attempted to find the manufacturer of the drug. P was aware or at least suspected. She went for a check up and was diagnosed as having adenosis. and the pharmacist who filled the prescription did not have records indicating the brand of DES prescribed. Doe Party Rule.CHAPTER 10. P suspected as much no later than 1978. 1988. P underwent a complete hysterectomy and a partial vaginectomy in order to remove malignancy.Discovery Rule. Rule(s). The limitations period begins when the P suspects. Unfortunately.Provides that the accrual date of a cause of action is delayed until the P is aware of her injury and its negligent cause. In 1972. she had an abnormal pap smear and underwent a procedure to remove the abnormal tissue. A plaintiff is held to her actual knowledge as well as knowledge that could reasonably be discoverable through investigation of sources open to her. it is clear that the P must go find the facts. As of 1972. that she has been wronged. the doctor who had provided the medication had died. In 1978. Section 474. So long as a suspicion exists.Affirmed. is time-barred. that her condition was a result of her mother’s ingestion of DES during pregnancy.P was born in 1951 from a mother who ingested DES for the prevention of miscarriage. she cannot wait for the facts to find her. Supreme Court of California. There is a 1 year statute of limitations for an action “for injury caused by the wrongful act or neglect of another. Page 418 Procedural HistoryFacts. he suit. Because she did not file suit until 1981.” In these actions.” Issue(s). or should suspect. P learned that DES daughters could suffer injuries from DES in utero. Reasoning/AnalysisDisposition. 36 . Starting in 1972.Pursuant to Cal. In 1976. Code of Civ Pro. and therefore an incentive to sue.Did the trial court err in ruling that the Plaintiff’s claim was barred by the statute of limitations? Holding. ELY LILLY & CO. unless otherwise saved. Once the P has a suspicion of wrongdoing.OTHER AFFIRMATIVE DEFENSES STATUTES OF LIMITATIONS JOLLY V.

accrual date of a cause of action is delayed until the plaintiff is aware of her injury and its negligent cause SOL in this case was when she has enough facts that would give her reasonable suspicion there was a causal connection between her injury and someone else’s misconduct or negligence. (Discovery Rule) -----More commonly applied version Policy reasons for SOL:     Protect D from defending stale claims Loss of evidence Inability to plan for future contingencies Plaintiffs should diligently pursue their claims.419 (footnote in case)  o D’s argue that the statute should commence when the P knows of her injury and its factual cause. The P must take steps necessary to preserve her right to a remedy by investigating and bringing suit within the statutory period. Defendant must plead and prove the facts that would establish the existence of a time bar. Her SOL had at least run out by 1972. Eli o o Discovery rule.NotesStatutes that prescribe the period of time in which an action must be brought or which will then be time-barred Affirmative defense. the statute begins to run. o o o o Once P has knowledge sufficient to excite suspicion of inquiry. She had been suspicious since at least 1972 of the DES product. Awareness or knowledge is both actual and constructive Constructive knowledge is knowledge that is reasonably discoverable through investigation of sources available to plaintiff How most states start the SOL: o o Last point in time of continuing tort Time of injury Jolly v.statute continues to run SOL begins to run when the plaintiff has a suspicion or should have a suspicion that someone has injured her by wrongdoing Note 4. 37 o . SOL avoids stale claims Ignorance of legal significance of facts.

after the divorce. o Note 2  When the tort occurs. Facts. On the first issue. Ps are free to seek change in the common law when they believe the law to be unjust or inadequate. Robert Feltmeier. Lynn Feltmeier . FELTMEIER Supreme Court of Illinois. She alleged that he engaged in a pattern of emotion and physical abuse which began shortly after the marriage and continued through and after the divorce. The claim is time-barred.o Effect of change in the law after the statute has otherwise run?  None. 2003 798 N. look at the statutes o Note 3   Facts establishing wrongdoing Or facts establishing cause of injury whether or not “wrongdoing” is suspected or known o o Ps may have other theories available to them. abused her verbally. o Policy reasons for not reopening time-barred cases    Case management problems for court Need for finality for parties. stalked her. In 199. and.E. the SC held that the conduct alleged was extreme and a there was a valid claim of IIED. kicked her. The appellate court affirmed and Robert appealed. Lynn sued Robert for IIED.and Defendant. prevented her from leaving the house.Trial court denied Robert’s motion but certified all three issues for interlocutory appeal. FELTMEIER v. A change in the law does not revive a claim that is time barred. particularly defendants Stale claims o o Doe Party Complaints Discovery Rule   Not applied in every state and limited to specific kinds of cases in other states Often SOL’s do not run against minors or others with mental incapacity. were married in 1986 and divorced in 1997.2d 75 Procedural History.Plaintiff. Lynn alleged that Robert hit her. threw things at her. Robert 38 .

where there is a single overt act from which subsequent damages may flow. are not barred by the applicable statute of limitations. the termination of the conduct provides the most sensible place to being the running of the prescriptive period. filed August 25. 1997. because Lynn’s complaint includes allegations of tortious behavior by Robert occurring as late as that month. including employment. Because it is impossible to pinpoint the specific moment when enough conduct has occurred to become actionable. - - Analysis- Disposition. It would be logically inconsistent to say that each act must be independently actionable while at the same time asserting that often it is the cumulative nature of the acts that give rise to IIED. and this is so despite the continuing nature of the injury Pavlik v. course and accumulation of acts that make the conduct sufficiently extreme to be actionable. Likewise. we cannot say that cumulative continuous acts may be required to constitute the tort but that prescription runs from the date of the first act.moved to dismiss on the ground that the complaint failed to state a claim and that the claim was barred by the SOL. that’s when the SOL starts running Problem. Lynn’s complaint. The two year SOL for this action began to run in August of 1999.Affirmed NotesContinuing tort: o o o Effect on running of SOL? When the conduct of a continuing nature stops.“Illinois courts have said that in many contexts.where a tort involves a continuing or repeated injury. It may be the pattern. Kornhaber holding. repetition of the behavior may be a critical factor in raising offensive acts to actionably outrageous ones.what conduct constitutes a continuous tort? 39 . 1999. Issue(s).No. Rule(s)Continuing tort rule. the statute begins to run on the date the defendant invaded the plaintiff’s interest and inflicted injury. the limitations period does not begin to run until the date of the last injury or the date the tortious acts cease General SOL rule. whereas one instance of such behavior might not be. was clearly timely and her claims based on conduct prior to August 25. Applying the continuing tort rule to the instant case.Did the appellate court err in holding that the conduct was a continuous tort and the SOL of limitation did not being to toll until after the divorce was final? Holding.

.” and dismissed the case as barred by GA’s statute of repose. The Red Cross moved the DC to dismiss the action as barred by Georgia’s SOL and ultimate repose for med mal suits.Plaintiff and her husband filed a complaint alleging that P contracted AIDS during her 1983 blood transfusion. AMERICAN NATIONAL RED CROSS United States Court of Appeals..” Facts.a tort involving continuing ot repeated injury.e. “an action against a blood bank for the negligent collection and supply of human blood is an action for med mal. The hospital obtained the blood from an American National Red Cross blood bank. and that “it is a jury question as to when P became infected with the AIDS virus.Note 2 STATUTES OF REPOSE BRADWAY v. Distinguishing continuing ill effects from continuing unlawful conduct Single acts v. 1993 992 F.No.2d 298 Procedural History. Eleventh Circuit.Plaintiff underwent reconstructive surgery for facial birth defects. when P became infected. repeated conduct that is seen as a continuous whole Pattern of conduct that as a whole can be seen as extreme and outrageous conduct necessary to establish IIED. The Red Cross had no direct connection with the Plaintiff. Rule(s)- 40 . Generally involves a pattern of conduct as opposed to one act SOL does not begin to run until the date of the last injury or the date the tortious acts cease. Issue(s). P’s sought compensatory damages.- Continuing tort. contending that the Red Cross was negligent in screening blood donors and in testing blood samples for the presence of HIV.Did the DC err in classifying the case as a medical malpractice suit barred by GA’s statute of repose rather than classifying it as an ordinary negligence case? Holding. The DC concluded that under GA law. i. She received 2 units of whole blood by transfusion after the surgery. P’s argue that the action did not accrue until the wrong was completed.Med Mal or Legal Mal.

G. 41 . Disposition. which might be wrongful which might not have triggered any results yet. The injuries need not have occurred.The term “action for medical malpractice. hospital authority.governs the time within which legal proceedings must be commenced after the cause of action accrues.limits time within which action must be brought without regard to when the cause of action accrued or whether it has yet accrued. § 9-3-71o Except as otherwise provided in this article. or employee thereof acting within the scope of his employment o - O. treatment.runs from the act. Different from an SOLo o SOL SOR. or Care or service rendered by any public or private hospital. clinic. facility. dental. § 9-3-70. or institution. in no event may an action for medical malpractice be brought more than 5 years after the date on which the negligent or wrongful act or omission occurred.The plain language of the repose statute indicated that the period begins on the date on which the negligent or wrongful act or omission occurred. Subject to the discovery rule. or care rendered by a person authorized by law to perform such service or by any person acting under the supervision and control for the lawfully authorized person.- O. the wrongful act was the blood transfusion… the SOR was triggered at that date. much less have been discovered. medical.limits the time within which an action may be brought and is not related to the accrual of any cause of action. Statutes of Repose.cause of action might have no accrued. o - SOL. an action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred.A.A. or by any officer. lack of knowledge of the existence of the cause of action does not toll a statute of repose. diagnosis. Analysis. nursing home. prescription. Thus.G.Affirmed NotesStatutes of Repose. although she did not test positive for HIV/AIDS for another 5 years. or surgical service.” means any claim for damages resulting from the death of injury to any person arising out of: o Health. In this case.C.C. agent.

The circuit court granted D’s motion for summary judgment based on a pre-accident released signed by P. observing. Signing the release was a condition to being allowed into any restricted area such as the pit. 2000 610 N. and applied to anyone competing.2d 787 Procedural History. He had done this twice before as well. the SOR bars the claim because it gives 5 years from the date of the act. or participating in races at the speedway.” P signed and submitted it.This case arose from a personal injury accident. working for. insurers and discharge them from any and all liability. printed by each signature line was the heading “I HAVE READ THIS RELEASE. and is barred by 2 years. (ordinary SOL) But in no event may such a claim be brought in more than 5 years after the date on which the negligent or wrongful act or omission occurred Note 3- EXPRESS ASSUMPTION OF RISK HOLZER v. officiating.W. Supreme Court of South Dakota. INC. GA statute bars claims for med mal unless brought within 2 years of the negligent or wrongful act or omission. Assumption of Risk and Indemnity Agreement. At the bottom of the release. Examples of types of cases in which legislatures have enacted statutes of repose: o o o Medical malpractice Architects and building contractors Products liability - Negligence involved in the collection and supplying of blood gives rise to a med mal action SOR began running on the date that the negligent act or omission occurred. DAKOTA SPEEDWAY. Issue(s).” All individuals wishing to enter the pit area were required to sign the release form.Before entering the pit area of the racetrack (to serve on the pit crew for one of the racers). when a race car’s wheel detached and hit and injured the plaintiff. Holzer was requested by Speedway to sign as “Release and Waiver of Liability. Facts. In addition.- Filing a case of action against a blood bank is a med mal case.Did the lower court err in granting D’s motion for summary judgment based on a preaccident release signed by the plaintiff? 42 . not when the negligence was discovered by plaintiff or when injury occurred. This document provided that the signees covenant not to sue the track owners.

a release must be fairly and knowingly made One who accepts a contract is conclusively presumed to know its contents and to assent to them. conspicuous (understandable language) May not disclaim willful negligence or intentional wrongdoing May not disclaim liability when a matter of public interest is involved May not disclaim liability for utilities or quasi-public entities supplying essential services Meaningful opportunity to be apprised of the waiver Fairly and voluntarily made But signatures are not mere ornaments to contracts See note 1 o Some states choose to limit the ability of parties to waive personal injury claims in some situations Commercial parties o Relative bargaining strength - Consumers o Not equal bargaining power. but rather a private agreement between individuals. He was not forced to sign it. P participated in Speedway races as a form of recreation.Affirmed NotesExpress Assumption of the Risk Exculpatory Clauses Explicit. Clear. The release in this matter does not involve a matter of public policy. If he had problems reading/understanding the release (as his father indicated).he was a volunteer and was therefore not compelled in any way to enter the Speedway racing pit area. he should have asked someone to read and or explain it to him.Holding.No.adhesionary situation 43 . there was no evidence in the record that P was denied the opportunity to step out of line at any time and read the release. It is his own fault that he didn’t read it… READ SHIT BEFORE YOU SIGN IT!!! Rule(s)To be valid. In addition. or other wrongful act by another contracting party Analysis- Disposition. misrepresentation. in the absence of fraud.

CHAPTER 11 – COMPARATIVE RESPONSIBILITY IN MULTIPARTY LITIGATION CONTRIBUTION AND INDEMNITY BROCHNER v. she will recover. As long as P is less than 51% negligent. before filing suit against a state or local govt notice must be provided within a specified period following the injury as a condition of the right to sue. WESTERN INSURANCE COMPANY Supreme Court of Colorado. 1986 44 . - Types of Comparative Negligence Regimes: o Pure     o Ms LA FL Neglience od P is never a bar to recovery Modified  50% • • • • • P may recover as long as the P’s negligence is less than that of the D P must be less than 50% negligent TN GA AR  51% • P may recover only if the P’s negligence is equal to or less than D’s negligence.- UCC warranty provisions o Opportunities were parties may waive warranty options concerning negligence and or product liability - Notice of claims o Sometimes.

Dr. Appellate Division affirmed.Joint tortfeasors are now subject to contribution among themselves based upon their relative degrees of fault. awarded $150.000. the hospital has no right to seek indemnity from Brochner. Brochner performed a craniotomy on Esther Cortez which resulted in injury to Cortez. Disposition. Facts. The Hospital settled the claim for $150.Because both Brochner and the hospital settled with Cortex. Rule(s).000 for expenses incurred as a result of the lawsuit. A tortfeasor may no longer be unfairly forced to pay all or a disproportionate share of damages suffered by an injured party as the result of negligent conduct by two or more joint tortfeasors. its sole remedy lies in contribution pursuant to the terms of the act which provides: o When a release or a covenant not to sue or not to enforce judgment is given in good faith to one or two or more persons liable in tort for the same injury or the same wrongful death:  It discharges the tortfeasor to whom it is given from all liability for contribution to any other tortfeasor. Brochner? Holding.2d 1293 Procedural History. AnalysisAs a joint tortfeasor. was sanctioned by the hospital several times.Did the trial court and appellate division err in ruling that Western Insurance Company was entitled to receive the full amount of the settlement as the Hospital’s negligence had only been secondary and passive to that of Dr. Brochner on the grounds that his negligence was the primary cause of Cortez’s injury and the Hospital’s negligence was passive and secondary. The trial court awarded Western their requests.724 P.000 to Western Insurance Company for indemnity as well as $10. In November of 1968. Brochner. neither is entitled to contribution from the other. Brochner to acquire consultations before performing craniotomies. Cortez. who was granted staff privileges by the Community Health Association to perform craniotomies at Boulder Community Hospital. Western sought indemnity from Dr. This new provision extends the principle that liability for negligence should be based on proportionate fault. The two claims were subrogated. Cortez brought an action against the hospital and Dr. Brochner.Yes.Trial Court. Because both Brochner and the hospital settled with Cortez. as it appeared as though he was performing unneeded surgeries. in an indemnity action to recover monies paid in a settlement to Ms. neither is entitled to contribution from the other Notes45 . Issue(s). The Hospital required that Dr.

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Contribution and Indemnity o Indemnity- the right to full reimbursement for damages paid by one party from another  Examples • • • o Vicarious liability- employer/employee Contractual indemnity Legal indemnity- seller-manufacturer

Contribution- the right to obtain a partial reimbursement of damages paid by one party against another   The reimbursement is by apportionment between the party who has paid and another party who has some portion of liability Many jurisdictions with comparative fault apportion by degree of responsibility for the injury

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Abolishing Joint and Several Liability: o A significant number of states have abolished joint and several liability, so that there is no need for contribution. Each party bears his or her own share of the responsibility. MS and LA- no longer have joint and several liability for negligence based actions However, joint and several liability has been retained for acts committed with “specific and wrongful intent” or for conscious and deliberate wrongs. Contribution is retained for cases involving such concerts of action

o o o -

Bochner v. Western Insurance Co. o A negligent party defendant may not recover full indemnity from another negligent party (joint tortfeasor), but may only seek contribution in proportion to the fault of the joint tortfeasor. Under existing CO law in effect before legislative abolishment of joint and several liability The court abolished the “active/passive negligence” distinction for purposes of indemnity because of the adoption of comparative fault A good faith settlement of the plaintiff’s claim by one tortfeasor discharges that tortfeasor from all liability and bars a claim from a joint tortfeasor for contribution

o o o

JOINT AND SEVERAL LIABILITY
KAEO v. DAVIS
Supreme Court of Hawaii, 1986 46

719 P.2d 387

Procedural History- Kido’s guardian sued Davis and the City of Honolulu. The City’s alleged negligence was failure to maintain the road in a safe condition. The jury found that Davis was 99% negligent and the City was 1% negligent. It also found that P suffered $725k in damages. A judgment holding the City and Davis jointly and severally liable for the damages was entered. City appealed.

Facts- Kido and Davis were drinking at a bar, and then went for a drive. Davis, who had been drinking, was unable to keep the car on the winding road and hit a utility pole. Kido was severely injured.

Issue(s)- Did the trial court err in excluding all evidence of Davis’ alcohol consumption? Did the trial court err in refusing to give a jury instruction “that would have apprised the jury of the possible legal consequences of its verdict on the negligence attributable to each putative joint tortfeasor?”

Holding- Yes. The trial court erred in refusing to admit evidence of Davis’ alcohol consumption. The trial court should have informed the jury of the possible legal consequence of a verdict apportioning negligence among the joint tortfeasors

Rule(s)- The trial court, if requested and when appropriate, should inform the jury of the possible legal consequence of a verdict apportioning negligence among joint tortfeasors.

Analysis- Wisconsin uses the Blindfold Rule, whereby the jury is not instructed on the effect that their verdict will have as far as which defendant may ultimately be held responsible for the entire sum. It is not the function of the jury in a case between private parties on the determination of comparative negligence to be influenced by sympathy for either party, nor should it attempt to manipulate the apportionment of negligence to achieve a result that may seem socially desirable.

Disposition- Reversed and remanded.

Notes- Joint and Several Liability A jury should be informed, when requested by a party, of the legal effect of apportionment of liability among joint tortfeasors

47

BROWN v. KEILL
Supreme Court of Kansas, 1978 580 P.2d 867

Procedural History- This is an appeal from a judgment for damage to P’s car resulting in a two car accident. The trial court found: (1) that P was guilty of no negligence; (2) the son was responsible for 90% of the causal negligence; (3) the D was responsible for 10% of the causal negligence; (4) P sustained total damages in the amount of $5,423.00; and (5) P was entitled to recover $542.30 in damages from D. P appealed

Facts- P, Brown, allowed his son to drive his Jag, and got into a car accident with D, Keill. The reasonable cost of repair was $5,423.00. D settled her claim against the son out of court. P then sued to recover his property loss. D did not seek to have the son joined as an additional party, and did not file a cross or counter claim against him.

Issue(s)- (1)Did the trial court err in refusing to apply the rule of joint and several liability of joint tortfeasors in the state of Kansas under a comparative negligence statute? (2) Additionally, is the causal negligence or fault of all parties to a collision or occurrence giving rise to P’s claim in a comparative negligence action to be considered even though one of said parties is not served with process or joined as a formal party to the action?

Holding- (1)No Trial court did not err. The concept of joint and several liability between joint tortfeasors previously existing in Kansas no longer applies in comparative negligence actions, due to K.S.A. 60-258(a). Yes, Although D and P both had an opportunity to bring in the third party by way of motion, they did not take advantage of this. There is nothing in the particular statute which specifically requires P to bring his action or file a claim against any particular person or group of persons.

Rules(s)Absent evidence of a joint venture, agency or circumstances giving rise to vicarious liability, the negligence of a bailee of a vehicle is not imputable to the bailor in an action by the bailor against a third party for damage to the bailed vehicle. The purpose and legislative intent of K.S.A. 60-258a was to impose individual liability for damages based on the proportionate fault of all parties to the occurrence which gave rise to the injuries and damages even though one or more parties cannot be joined formally as a litigant or be held responsible for his or her proportionate fault.

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Analysis48

“Any party” – does this mean parties to the litigation or participants to the tort… - Effect of joint and several liability: o o Each D is liable for the full amount of damages apportioned to the D’s. The jury further found damages in the amount of $606.who bears the risk of the insolvent joint tortfeasor? The other remaining solvent Ds will absorb an insolvent party. After settling his workers’ comp claim. 49 . Judgment was rendered for the amount of damages found by the jury reduced by the proportion of negligence of both the employee and the employer.Varela was employed by Hydrocarbon. etc.Disposition. The trial court rendered judgment for 43% of the total damages. Varela was injured due to a premises defect. pari material. The jury apportioned the negligence of the parties as follows: Varela 15%. bailor is not liable for torts of bailee.Affirmed NotesAbsent joint venture. regardless of the degree of fault of each individual D Insolvency. Does KA retain joint and several liability? o o No Note p.This is an appeal from the third-party negligence action brought by an employee covered by workers’ comp. or other special circumstances.800.444 – rule of statutory interpretation (construction. purpose. AMERICAN PETROFINA COMPANY OF TEXAS. who was performing a “turnaround” on a fluid catalytic cracking unit owned and operated by Petrofina.W. INC Supreme Court of Texas. and Petrofina 43%. agency. VARELA v. Hydrocarbon 42%.) Is the negligence of a non-party joint tortfeasor considered in the allocation of responsibility for the plaintiff’s injuries? o Yes. Valera sued Petrofina for the damages resulting from his injuries. 1983 658 S.2d 561 Procedural History. During the course of performing the job. The court of appeals affirmed Facts.

Employer is responsible for 100% of damages for employee acting in nature and scope of employment. Abolition of joint and several liability has nothing to do with vicarious liability. Judgment is rendered for Varela in the amount of $515. NotesJurisdictions that have abolished joint and several liability have retained it in intentional torts Vicarious liability is different from Joint and Several liability.Did the trial court err in considering the negligence of the employer in a third-party negligence action brought by an employee arising out of an accidental injury covered under workers’ compensation insurance? Holding.Issue(s).Reversed and remanded.780 plus interest from the date of judgment. and the compensation carrier is entitled to reimbursement for all compensation and medical expenses paid. Analysis- Disposition. Petrofina has no claim for contribution from employer. In the event of recovery. the employee shall recover the total amount of damages as found by the jury diminished only in proportion to the amount of the negligence attributed to the employee. Rule(s). Whose fault should be considered in apportioning responsibility? o o Non parties Immune persons    o Employers under workers’ comp Governmental immunities Family immunities - Phantom defendants (non-parties that are alleged to be liability in some capacity) May a jury consider the negligence of and assign If not how is fault otherwise attributable to the employer allocated? o To the non-employer tortfeasor 50 . -Since the Work Comp Act precluded P from recovering from the employer for common law negligence.Where the D’s negligence is equal to or greater than that of the employee.Yes. the negligent 3rd party is barred from seeking contribution or indemnity from the employer. The injured employee may seek recovery from a 3rd party whose negligence contributed to the injury.

and 30% jointly to McDermott and the sling defendants.McDermott. Petitioner entered into a $1 million settlement dismissing the “sling defendants. The malfunction may have been caused by petitioner’s negligent operation of the crane. AMCLYDE Supreme Court of the United States. who were not parties to the settlement.1 million. There is no reason to allocate any shortfall to the other defendants. The Appellate Court reversed the judgment award and reduced it as follows: First. 38% River Don.” They released them from all liability for either deck or crane damages. Court denied motion to reduce the judgment by the $1 million dollar settlement. On the eve of trial. INC. by a defect in the hook supplied by River Don.Should the liability of the non-settling defendants be calculated with reference to the jury’s allocation of proportionate responsibility? Or should the Court give the non-settling Ds a credit for the dollar amount of the settlement? Holding. the P’s recovery against the settling D has been limited not by outside forces. or by one or more of 3 other companies that supplied the supporting steel slings.47 million. Just as the other defendants are 51 .000 and against River Don $798. Facts. Issue(s).S.000 ton crane from AmClyde. it deducted the 1 million received in settlement to reach $470. v. Court of Appeals held that a contractual provision precluded any recovery against AmClyde and that the trial judge improperly denied a pro tanto settlement agreement. When Petitioner first used the crane to attempt to move an oil and gas production platform. Responsibility was allocated as follows: 32% AmClyde. 1994 511 U. and entered judgment against AmClyde for $672.- Note 1 Note 2 Note 3 MS by recent legislature allows employer’s negligence to be considered in allocating percentage of responsibility for each party involved in cause the injury MS allows consideration of fault of any actor who had a causal role Partial Settlements MCDERMOTT. 202 Procedural History.000. bought a 5. McDermott assumed any liability the slings may have had in causing the accident. Next. This came to $1. petitioner. and agreed to indemnify them against any contribution action. it reduced the 30% negligence on the part of McDermott.000. causing massive damage to the deck and to the crane itself.The proportionate share rule announced in this opinion applies when there has been a settlement.Jury found damages of 2. In such cases. by AmClyde’s faulty design or construction. a prong off the crane’s main hook broke. but by its own agreement to settle.

-By disadvantaging the party that spurns settlement offers.” is likely to lead to inequitable apportionments of liability. -The pro tanto approach. Settling tortfeasor and the proportionate share approach-The money paid extinguishes any claim that the injured party has against the released tortfeasor and also diminishes the claim that the injured party has against other tortfeasors by the amount of the equitable share of the obligation of the released tortfeasor. because settlement can only disadvantage the settling defendant. 2. The Court uses this approach here.not entitled to a reduction in liability when P negotiates a generous settlement. -The first 2 alternatives involve the kind of “pro tanto” credit that respondents urge the Court to adopt. Analysis. Rule(s). the nonsettling D’s are entitled to a credit for that settlement. Pro tanto rule without contribution-The money paid extinguishes both any claims on the part of the injured party and any claim for contribution by another tortfeasor who has paid more than his equitable share of the obligation and seeks contribution. The additional incentive provided by the pro tanto rule comes at too high a price in unfairness. the pro tanto rule puts pressure on all defendants to settle.The proportionate share rule announced in this opinion applies when there has been a settlement. The third alternative involves a credit for the settling defendants’ “proportionate share” of responsibility for the total obligation. but the transaction does not affect a claim for contribution by another tortfeasor who has paid more than his equitable share of the obligation. Historically. The only difference is the recognition of a right of contribution against a settling defendant in the first but not the second. even when supplemented with “good-faith hearings. In such cases. 3 alternatives outline by the American Law Institute: 1. -This discourages settlement. As in Alternative #1. they are not required to shoulder disproportionate liability when the P negotiates a meager one. One Satisfaction Rule. 3.This is no longer good law. if he had settled with and released another. Pro Tanto set off with right to contribution against the settling D-The money paid extinguishes any claim that the injured party has against the party released and the amount of his remaining claim against the other tortfeasor is reached by crediting the amount received. the amount of the injured party’s claim against the other tortfeasors is calculated by subtracting the amount of the settlement from the P’s damages. the P’s recovery against the settling D has been limited not by 52 .It is generally agreed that when a P settles with one of several joint tortfeasors. this rule barred a P from litigating against another joint tortfeasor.

Just as the other defendants are not entitled to a reduction in liability when P negotiates a generous settlement.you release all of them Modified. who were not parties to the settlement. The nonsettling defendant would pay in the amount that However. they are not required to shoulder disproportionate liability when the P negotiates a meager one. but by its own agreement to settle. In most jurisdictions the settling D who pays (at least in good faith) less than what turns out to be his fair share is completely released and no claim for contribution may be made against the settling D.the award is reduced by the % of responsibility attributed to the settling defendant - - McDermott o Issue:  o In an admiralty case. then you can release A and still sue B and C Typically the release is a release of the party of who is on the release only… everyone else is still liable if you have a claim against them.a dollar for dollar reduction allowed against the award Proportionate: more modern trend.    Common law rule. There is no reason to allocate any shortfall to the other defendants. Partial Settlements o Is there joint and several liability?    If not. but reserve the right to sue B and C. Disposition.if you release A. then contribution allowed (Restatement 3d). should the amount of settlement with settling D’s who pays more than its fair share of the damages Holding 53 .Reversed court of appeals decision and remanded NotesWhat happens if joint and several liability and a D settles for more than his fair share? o Did the release include or exclude the other D’? If settlement released other D’s also.outside forces.a release to any of the D’s. where there is joint and several • Several methods have been used: o o o Pro rata-(equal division among the D’s without regard to % of responsibility for the injury) Pro tanto. then settlement by on D will not affect the liability of a joint tortfeasor.

any negligence or other fault of P would not bar or reduce his claim.Court goes with this approach. FAGAN Superior Court of NJ.Yes. D appeals. D was convicted of aggravated assault and sentenced to a 7 year prison sentence.Did the trial court err in partially granting P’s motion for summary judgment. and he was forced to defend himself. regardless of whether their conduct was negligent or intentional. 1987. 1992 Page 461 Procedural History. and that under the Comparative Negligence Act. regardless of whether their conduct was negligent or intentional.The Comparative Negligence Act requires the tries of fact to apportion the fault of all culpable parties.Trial Court partially granted P’s Motion for Summary judgment on the grounds that D’s conviction for aggravated assault conclusively established that he committed an intentional tort upon P. Defendant’s criminal conviction does not preclude him from relying upon the Comparative Negligence Act as a defense to P’s claim. The Comparative Negligence Act requires the tries of fact to apportion the fault of all culpable parties. Both P and D have suffered injuries. Rule(s).P and D were involved in a physical altercation in the parking lot behind Cammarano’s Bar in Long Beach on March 26. -A criminal conviction does not place a limitation on the Act 54 .” D claims that he walked over to P’s car and P began hitting him. P’s claim against the settling D is released and the claim APPLICATION OF COMPARATIVE RESPONSIBILITY TO CAUSES OF ACTION OTHER THAN NEGLIGENCE BONPUA v. Appellate Division.  Pro-tanto Proportionate. This fight stemmed from an altercation in the bar in which P called D a “faggot. Issue(s). Facts. striking defendant’s affirmative defense of comparative negligence? Holding.

Reasoning/Analysis. in products)? Tendency is for courts to use comparative fault in reducing the claim against the strictly liable party. Cases involving a mis of intentional torts and negligence Apportionment by causation and fault in the same case. Notes Apportionment of fault when fault claim is other than negligence Should comparative fault be used in allocation of fault involving intentional torts? Should comparative fault be used in allocation of responsibility involving strict liability claims (esp. Thus. a finding that both P and D were negligent in causing the injury to P would not be inconsistent with the criminal jury’s finding.Reverse and remanded. Mostly unresolved by the courts (Section F. on 466) - 55 .The criminal jury could have returned a guilty verdict even though it believed P initiated the altercation if it found that D responded to P’s verbal abuse by assaulting him or used excessive force in repelling P’s aggression. Disposition.

IMMUNITIES A. when a school bus collided with a cattle truck on a bridge built and maintained by the State Highway Dept.“ no reasons exist for continuing to adhere to the doctrine of governmental immunity. Philie Board of Pub. Facts- Issue(s). It can no longer be justified by existing circumstances and has long been devoid of any valid justification. However. Sovereign immunity may no longer be interposed as a defense by the state. its continuance is causing a great degree of injustice. or any of its political subdivisions.” Analysis. Education.The argument has been made that eliminating sovereign immunity will result in a massive financial burden on the state. GOVERNMENT IMMUNITY STATE AND LOCAL GOVERNMENT HICKS v. 56 . Rule(s).Yes. In addition. rather than placing the financial burden on the individual alone. Just because a court made rule has been in effect for many years does not render it invulnerable to judicial attack once it reaches a point of obsolescence. 1975 Page 470 Procedural History.Did the DC err in granting D’s MTD based on the common law principle of sovereign immunity? Holding. it is clear that no public policy considerations presently justify its retention.CHAPTER 12 . or any of its political subdivisions. in tort actions. The doctrine of sovereign immunity has always been a judicial creation without statutory codification. In addition. STATE Supreme Court of New Mexico. Ayala v. Whatever may have been the basis for the inception of the doctrine. D filed a MTD which was granted by the DC. this is a weak argument because insurance should cure that problem. 1. because they can afford it. Suit was originally brought to recover damages for the wrongful death of P’s wife and daughter for the negligence of the State Highway Dept.This is an appeal from an order of the DC dismissing P’s complaint on the basis of sovereign immunity.. in tort actions.Common law sovereign immunity may no longer be interposed as a defense by the state. The DC stated that the doctrine of sovereign immunity was a long-standing common law principle which could now be changed only by legislation. placing the financial burden on the state would be fair.

Because the wife’s identity was subsumed into the husband’s. Immunity may take the form of an affirmative defense or as a preclusion of subject matter jurisdiction (governmental).Reversed Motion on Rehearing- Issue: Whether this decision should apply (1) only to cases arising in the future.Should only apply to cases arising in the future so that the government may have ample notice and obtain liability insurance. Exhusbands and wives could not sue each other in common law. Immunity is in effect the freedoms liability for conduct that otherwise create liability. Employer immunity in tort (Worker’s Comp. or (3) to cases arising in the future.an area which has been diminishing in importance.) o o o   - Hicks v. Holding.old rule. (2) to cases arising in the future and to the case at bar. these institutions wouldn’t offer their services for the public good. it wouldn’t make sense for the husband to sue himself. Family immunities. NotesImmunities o Immunity is a defense that bars the P’s claim even if the D would otherwise be liable and is based on the status of the D or the legal relationship between the P and D. State o Should New Mexico retain the doctrine of sovereign immunity in tort claims against the state?  NO!!! Not any more 57 . Types:   Sovereign immunity/ governmental immunity Charitable immunity. because the husband and wife had a single identity.charitable institutions had immunity under common law because without this immunity.Disposition. Has largely been abolished or severely restricted (almost no longer exists). to the case at bar and to all similar pending actions.

equity. that the court has the power to abolish if it so chooses (if it is a common law rule. and justice Public should bear the loss of governmental mistakes as opposed to the injured individual bear the entire cost/injury alone Common law rule created by the court.  o Proprietary v. then it seems as though. The other philosophy is that major changes in the law should come from legislatures that are elected to change it by the democracy.o Policies behind sovereign immunity     Govt can do its job properly as opposed to being distracted Public inconvenience Keeps taxes lower Cost of insurance is too much o Policies for abolition      Individual shouldn’t bear the burden alone Govt can get insurance Matter of fairness.the govt is reliable.) Spreading the costs of the injury so that no one individual is catastrophically affected through no fault of his own. governmental functions of municipal (city. o Note 1  Most states have at least partially abolished sovereign immunity o o o Note 2 Note 3 Note 4 – federalism and the federal constitution   Can’t sue a state in federal court in tort Generally a matter of state law and fed courts will not take jurisdiction except in the case of civil rights cases 58 . the judges have the authority to change it. county and other local government units)  Proprietary function.

S. misrepresentation.- Federal Government Immunity governed by the Federal Tort Claims Act (FTCA) o FTCA o Involves claims against the federal govt.S. false arrest. false imprisonment. agencies or employees Jurisdiction  Exclusively in the federal district courts for money damages by torts of federal employees acting in the scope of employment o Time Limits    2 years to file a claim with the agency (maximum time) Must sue within 6 months of final denial of claim (file suit in federal court) If agency fails to act on timely claim. U. is liable for compensatory damages instead (measured by the pecuniary damages)  Compensatory instead of punitive o Exceptions:  No liability to the US for torts that: • •  Are based on employees exercising due care in executing statutes or regulations (without regard to validity of the statute of regulation) Or arise from performance or not of discretionary functions No claims for assault. if only damages under applicable state law are punitive. battery. or malicious prosecution with regard to actions or omissions by federal law enforcement or investigative officers (with law enforcement powers) o o No claims arising from combat activities during war time No claims arising in foreign countries 59 .S. is liable. except:   No punitive damages No pre-judgment interest o In wrongful death claims. If U. it is liable for the same damages that would be available against a private person. abuse of process. abuse of process. defamation. battery. false imprisonment. claimant may file suit after 6 months (but claim must be “timely”) o o No jury trial against the U. deceit or interference with contracts o Exceptions to the exceptions:  Assault. malicious prosecution.

o No claims for Treasury fiscal operations or monetary regulation 60 .

after a few months the new directors announced that IASA has a substantial negative net worth. FEDERAL TORT CLAIMS ACT SCOTUS.2.” because “the employee has no rightful option but to adhere to the directive. Although IASA was thought to be financially stable while Guabert managed it. Thereafter. seeking $100 million damages for the lost value of his shares and for the property forfeited under his personal guarantee on the ground that the FHLBB and Dallas division were negligent in carrying out their supervisory activities. and the Federal Savings and Loan Insurance Corporation assumed receivership of the institution. During the savings and loan crisis of the FHLBB and the branch in Dallas oversaw certain operations of Independent American Savings Association (IASA).S. -The requirement of judgment or choice is not satisfied if a “federal statute.Gaubert filed an action in the DC against the US under the Federal Tort Claims Act (FTCA).” 61 .” which fall within the discretionary function exception. Facts. there is nothing in that description that refers exclusively to policymaking or planning functions. v.” which it believed were not within the exception.” which fall within the exception. 1991 Page 478 UNITED STATES v. FEDERAL GOVERNMENT a. GAUBERT Procedural History. the Court of Appeals found that the claims concerning the regulators’ activities after they assumed a supervisory role in IASA’s day-to-day affairs were not “policy decisions. regulation. They did so and were then replaced. Relying on Indian Towing Co. U. At the FHLBB’s request.” and “it is the nature of the conduct. FHLBB-Dallas became more involved in IASA’s everyday business activity. acts that “involve an element of judgment or choice. rather than the status of the actor” that governs whether the exception applies. Later the regulators threatened to close IASA unless all management resigned. Rule(s).The exception covers only acts that are discretionary in nature. Issue(s). but instituted no formal action against the institutions. The DC granted D’s MTD for lack of SMJ on the ground that the regulator’s actions fell within the discretionary function exception to the FTCA.” which it believed were not within the exception? Holding. or policy specifically prescribes a course of action for the employee to follow.Did the Court of Appeals err when it reversed in part on the ground that the claims concerning the regulators’ activities after they assumed a supervisory role in IASA’s day-to-day affairs were not “policy decisions. respondent Gaubert removed himself from IASA’s management and posted $25 million as security for his personal guarantee that IASA’s net worth would exceed regulatory minimums. but were “operational actions. A discretionary act is one that involves choice or judgment.Yes..a federal statute authorized the Federal Home Loan Bank Board (FHLBB) to proscribe rules and regulations governing federal savings and loan associations. but were “operational actions.

Johnson’s Coast Guard Station received a distress call from a boat lost in the area. or agency guidelines. JOHNSON Procedural History.” -When established governmental policy.Reversed and remanded Case NotesNote 3 Note 2 Note 1 Note 4-5 b. 1987 Page 486 UNITED STATES v. Analysis- Disposition. regulation. economic.Johnson was a pilot for the US Coast Guard. allows a Government agent to exercise discretion. as expressed or implied by statute. Facts. The Court of Appeals for the 11th Circuit reversed. The court found that the evolution of the doctrine since the Feres decision warranted a qualification of the original holding according to the status of the alleged tortfeasor. The DC dismissed the complaint relying on the Feres decision. it must be presumed that the agent’s acts are grounded in policy when exercising that discretion. Johnson and a crew of several other Coast Guard 62 . and political policy through the medium of an action in tort.” The exception only “protects governmental actions and decisions based on considerations of public policy. JUDICIALLY CREATED IMMUNITY SCOTUS.” Accordingly it found that Feres did not bar respondent’s suit. Johnson’s wife.Respondent.-Discretionary function exception is only intended to “prevent judicial secondguessing of legislative and administrative decisions grounded in social. sought damages from the US on the ground that the FAA flight controllers negligently caused her husband’s death. The court found “absolutely no hint that the conduct of any alleged tortfeasor even remotely connected to the military will be scrutinized if this case proceeds to trial.

When this is present.S. Shortly thereafter. These are the types of claims that. There is no doubt that Johnson was killed while performing a rescue mission on the high seas. so Johnson requested radar assistance from the Federal Aviation Administration (FAA). was killed in the crash. Johnson. Disposition.Feres Fatual Paradigm. along with all of the other crew members. Analysis. when the injury occurs while the military employee is involved in a service activity? 11th Circuit held in this case: Feres doctrine applies only to bar claims of military personnel when injured by other military personal. The Feres Doctrine should have been applied. the helicopter crashed into the side of a mountain.Yes. because Johnson was acting pursuant to the standard of operating procedures of the Coast Guard. 3 broad rationales underlying the Feres decision: 1. if generally permitted. 2. his injuries arose directly from that mission.Reversed and remanded NotesIssue: Does a military employee of the U. Issue(s). 3. “Did the injury arise out of or during the course of an activity incident to service?” The government is not liable under the FTCA for injuries of servicemen where the injuries arise out of or are in the course of activity incident to service. the potential that this suit could implicate military discipline is substantial. the question becomes. have FTCA claim against the government for negligent harm caused by a civilian federal employee. not when injured by civilian employees of the federal government. for the negligence of a government employee.Did the Court of Appeals err in concluding that the Feres Doctrine did not bar recovery when negligence is alleged on the part of a Federal Government Employee who is not a member of the military? Holding. servicemen included. the FAA controllers assumed positive radar control over the helicopter.Dissent says.Exists when a service member alleges negligence on the part of another member of the military. a civilian agency of the Federal Govt. The relationship between the Government and members of its armed forces is “distinctively federal in character”. 63 - . would involve the judiciary in sensitive military affairs at the expense of military discipline and effectiveness.READ THE STATUTE AS IT WAS WRITTEN!! This would render the federal government liable to any individual. his wife continues to receive death benefits. Rule(s).members were dispatched to search for the vessel. Generous statutory disability and death benefits are provided as a remedy. Inclement weather decreased the visibility.

whether the injury is casued by civilian or military government Rationale: o o Military employment is by its nature risky. THE “PUBLIC DUTY” DOCTRINE RISS v. and high-ranking executives. federal employees are immune upon the employee’s request. - IMMUNITY OF GOVERNMENTAL OFFICERS AND EMPLOYEES Federal Liability Reform and Tort Compensation Act of 1988. Qualified immunity is usually provided to other employees for torts committed within the scope of their employment if they act in good faith belief that the acts are lawful Generally state or local governments cover all or part of judgments against employees acting within scope.- Feres doctrine. in this case: bars tort liability for the govt in any case in which service member is injured arising out od or in the course of activity incident to service. so a remedy is available - - Congress has not amended the statute providing for benefits to injured service personnel since the Feres doctrine was declared. Site of injury should not affect govt’s liability Service related injuries are subject to statutory benefits. 1968 Page 495 64 . Scalia: The statutory language is plain. prosecutors. according to the S.. - o 4. acting within powers of their offices. CITY OF NEW YORK New York Court of Appeals. Absent violation of Constitution or federal stature. Congress did not create an exception governing military personnel except in combat situations. o o No presumption as to Congress’ intent in passing in the FTCA should be drawn from the lack of amendment by subsequent Congressess None of the supporting rationales offered by the majority withstand scrutiny 3.Ct. the attorney general certifies that the employee was acting within the scope of employ State Immunity o o Absolute immunity generally provided to judges. Congress was unlikely to have intended both tort recovery and recovery under the Veteran’s Benefit Act To permit torts liability in such cases would involve the judiciary in matters best left to military. Judicial involvement could negatively affect military discipline and effectiveness.

She was blind in one eye.Affirmed NotesPublic duty doctrine o o o No duty to rescue No general duty to protect third parties from harm by third persons No duties to protect specific individuals from harm where there is a duty owed to the general public 65 . Rule(s). lost substantial vision in the other. and her face was scarred. the psycho called her and told her it was her “last chance.Procedural History. Burton Pugach. Appellate division affirmed. Before such extension of responsibilities should be dictated by the indirect imposition of tort liabilities. she called the police. At their engagement party. without adequate protection.No. to the risks which then materialize into actual loss. Linda subsequently was engaged to another man. -However. He repeatedly threatened to kill or injure her if she did not go out with him. In fear for her life. but they did nothing. this immunity would not apply if the police authorities undertook responsibilities to particular members of the public and then exposed them. Issue(s). After the assault.Trial court dismissed the complaint.” She then called the police again and was refused assistance. Police resources are limited by the resources of the community and by a legislative-executive decision as to how those resources may be deployed.Police officers can’t be held liable to members of the public who are injured by criminal third parties. there should be a legislative determination that that should be the scope of public responsibility. The next day Pugach hired a “thug” to throw lye in Linda’s face.Did the appellate division err in affirming the trial court’s decision to dismiss the complaint because the police department owed the public no duty to prevent this kind of injury? Holding.Linda Riss was stalked for over 6 months by a psycho. Analysis- Disposition. Facts.5 years from the police. It would be impractical for the Court to carve out an area of tort liability for police protection to members of the public. she was afforded round-the-clock protection for the next 3.

driven by her future husband. Kimberly Price appeals. if the police authorities undertake responsibilities to specific members of the public. relying on the doctrine that one spouse could not sue another for negligence (Interspousal Immunity). However. collided with a truck. Court distinguished this kind of govt activity from others activities such as duties that arise in the course of operating public The court did not feel that it was appropriate to become involved with the choices of eth allocation of resources by local govt. Kimberly married Duane 6 months later and brought suit against Duane and the other truck driver. Duane Price? 66 .W. B. Duane Price.Did the Court of Appeals err in ruling that the doctrine of interspousal immunity barred Kimberly Price from recovering against her husband. Court is not competent to make such determinations.o Some state limit the public duty doctrine to police protection Riss: Local govt does not owe a duty to one individual to protect them from harm caused by criminal wrongdoers. The driver of the truck and his employer settled out of court.Kimberly Price was injured in July of 1983 when the motorcycle of which she was a passenger. alleging that their negligence combined to cause her injury. Facts.Summary Judgment was granted for defendant. Issue(s). the govt can be held for negligence in failing to act reasonably performing such undertakings. PRICE Procedural History. The level of police protection was better left to leg decisions. but the court issued summary judgment for Duane. in this negligence action. 732 S. Court of Appeals affirmed the judgment.2d 316 PRICE v. Duane Price. FAMILY IMMUNITIES Supreme Court of Texas. 1987.

The trier of fact must decide whether the mother in leaving the 2 and ½ year old child unattended next to the swimming pool is reasonable or prudent. She found him floating in the deep end of the pool and began CPR on him. It is difficult to fathom how denying a forum for the redress of any wrong could be said to encourage domestic tranquility. Facts. and to have the right to sue in regards to their own property in contracts. Due to the long length of oxygen depravation. Laura left Christopher by the side of the pool to go answer the telephone even though she had seen him remove his floaties.The common law rule for interspousal immunity is no longer good law. BROADBENT Supreme Court of Arizona. and his mother.Holding. Page 503 Procedural History. Issue(s). Rule(s). acquire and dispose of property. as he was only 2 and ½ years old and did not know how to swim. Plaintiff/Appellant. spousal harmony. Christopher was wearing his floaties. The Doctrine of Spousal Immunity is abolished completely as to any cause of action. The Common law holding that a “husband and wife are one person” is no longer valid. Traditional justifications for the rule (of spousal immunity): legal unity.Did the Trial Court err in granting summary judgment for the Defendant under the parental immunity doctrine? Holding.Yes. husband’s status. and collusive suits Disposition. The interspousal immunity doctrine is no longer good law and his abolished. The Doctrine of Spousal Immunity is abolished completely as to any cause of action. The Married Women Acts gave wives the right to own. The paramedics arrived shortly thereafter and Christopher was finally revived at the hospital.Reversed and Remanded.Christopher Broadbent. 1995. Laura Broadbent. 67 . BROADBENT v.Yes. Motion for Summary Judgment on the grounds that the parental immunity doctrine applied to the facts of this case. went swimming at their residence on April 13. Laura talked on the phone for 5-10 minutes before she noticed that she could not see Christopher from where she was talking. The trier of fact must apply the “Reasonable Parent” Standard. Defendant/Appallee. 1984.Trial Court granted the mother. Christopher suffered sever brain damage and now has lost his motor skills and voluntary movement. Laura Broadbent’s. to contract.

-Overrules Sandoval. other children). (so parent gets to keep the money in the 1st place. if a third party is liable for the tort. foster parent. -The “Reasonable Parent” standard attempts to fashion an objective standard that does not result in second-guessing parent in the management of their family affairs. and control. (5) Suing one’s parents would interfere with parental care. if the child is emancipated. (1) (2) (3) (4) Reasoning/Analysis- Disposition. And. then the immunity of the parent does not protect that third party. or recklessly. (see above) 68 . and if the tortfeasor is standing in loco parentis. and undue intrusion by the states into matters of the family. Reasons in Support of Parental Immunity: Suing one’s parents would disturb domestic tranquility.Reversed and Remanded Parental Immunity Notes Under what circumstances should a parent be held liable in tort to a child for injury caused by parent’s fault? American common law rule – parents are immune from tort suits by minor or emancipated children.Rule(s). or teacher.A parent’s conduct is judged by whether that parent’s conduct comported with that of a reasonable and prudent parent in a similar situation!!! A parent is not immune from liability for tortious conduct directed toward his child solely by reason of that relationship. Awarding damages to the child would benefit the parent if the child predeceases the parent and the parent inherits the child’s damages. parental discipline. the immunity does not apply. Suing one’s parents would create a danger of fraud and collusion. “Reasonable Parent” Standard for Parent-Child Suits. which created the “duty to the world at large versus duty to the child alone” distinction. such as a grandparent. assuming the parent wouldn’t spend the money on something else. family resources for other family members (spec. Parental inheritance by wrongdoing parent. if the child or parent dies. Also overrules the Goller Standard and Test. discipline.Exceptions to Parental Immunity: if the parent is acting outside his parental role and within the scope of employment. Policy reasons: family harmony. a parent is not liable for an act or omission that injured his child if the parent acted as a reasonable and prudent parent in the situation would. Awarding damages to the child would deplete family resources. if the parent acts willfully. wantonly.

Facts. D told P that her wound was healing properly.000 award for malpractice of a podiatrist. Reasonable parent rule permits sufficient discretion and flexibility to accommodate different styles of parenting.Trial Court awarded P a $56. which resulted in a permanent foot injury.In 1980. P consulted with D about an ingrown toenail. SOUTHWARD Supreme Court of CO. The next day P noticed fluid coming out of the area near the incision and called her family physician. (does create a conflict of interests) -Likelihood of inheritance by parent is remote. Plaintiff appeals. P complained that her foot was red.Rule eroded over time – no immunity for intentional torts. Parents are liable in tort when they have failed to act as reasonable parents in the situation. -Insurance is gen available to cover liability or suit is not brought. D removed the ingrown toenail and also suggested that P have a metatarsal osteotomy to relieve discomfort. then no immunity when duty is one owed generally to others. - CHAPTER 13 . no immunity in auto accidents. who in turn referred her to Dr.MEDICAL MALPRACTICE PROFESSIONAL STANDARD OF CARE MELVILLE v. no immunity for reckless. Barnard. The podiatrist performed the surgery a month later in his office. After another week. The doctor said that he did not like the looks of the foot. -serious injuries are mor likely to occur in exercising parental authority when the parent acts in a willful pr wanton manner (such as severely beating a child) and such conduct should not be protected. Court of Appeals overruled. This continued to the point that parents are liable exept with reference to matters of legal obligations. an ortho surgeon. and painful. Two days later. the P returned to D’s office for a checkup. Parents are gen the parties who actually initiate the suit against themselves. willful torts. Continued to the point of where the law was at the time of Broadbent Broadbent case: Parental immunity is abolished. and provided P an additional antibiotic. Barnard testified that the osteotomy procedure was below the standard of care for 2 reasons: (1) Because it was unnecessary and (2) the procedure was performed in an unsterile 69 . One week later. 1990 Page 512 Procedural History. swollen. D told her to increase the amount of vinegar and soak the foot more frequently.

a podiatrist? Was the Court of Appeals correct in ruling that the testimony offered by Dr.Did the trial court err in allowing an orthopedic surgeon to be an expert witness as to the degree of care owed by another specialty. experience. The P failed to establish an evidentiary foundation that Dr.Standard of Care (Other physicians in the same school of medicine – whether a reasonably careful physician (mentally competent person) of the same school of medicine would have acted the same way) BreachCause in factLegal CauseDamages 70 o o o o . was so substantially familiar with the standard of care for podiatric surgery as to render his opinion testimony as well informed as that of a podiatrist. by reason of his knowledge. the P must establish that the D failed to conform to the standard of care ordinarily possessed and exercised by members of the same school of medicine practiced by the Defendant. The court must make 2 preliminary determinations regarding the expert testimony: (1) Will the expert testimony assist the trier of fact in understanding the evidence or in determining a fact in issue. (2) Is the expert witness properly qualified by knowledge. Bernard. Reasoning/Analysis- Disposition. skill. Issue(s). He also testified that the post-operative standard of care was also below the standard. -In order to establish what the controlling standard of care owed is. or education. Notes• Negligence: (must show all of these) o Duty. training. or education to offer an opinion on the issue in question. -The standard of care in a medical malpractice case is measured by whether a reasonably careful physician of the same school of medicine as the D would have acted in the same manner as did the D in treating and caring for the P.Yes.Remanded to the district court for a new trial. skill.office environment. the P must introduce expert testimony. Rule(s). training. experience. Bernard with regard to the standard of care during and after the operation was nothing more than opinion testimony? Holding.In a medical malpractice case. Nor did the P establish that the standard of care for the procedure performed was identical for both orthopedics and podiatrists.

In medical malpractice cases the standard of care is measured by the skills ordinarily possessed and exercised by members of the same field or school of medicine as practiced by the defendant. (think about this as what the bas level of minimum competency accepted within the profession, not what the skill level of the “average” m.d. would be) Duty is to use reasonable care, but reasonable care is defined by reference to the professional standard of care for the applicable profession, specialty or subspecialty of the profession involved. (where one has a “recognized profession”- licensed or regulatedhave established standards of care, or rules of ethics) Other courts: o The standard of care is the standard of a minimally competent practitioner in that specialty or field. (What is reasonable in that specialty?) The test is then, what would a minimally competent or qualified doctor in that field have done under the circumstances?

Note: Not the “average doctor.” (1/2 would be below that standard) o In other words,

Expert testimony: o o o Ordinarily needed to establish what the standard of care is The expert must be familiar with the defendant’s specialty (usually in the same specialty) or be in a specialty which has substantially identical standards of care. Note: the expert’s personal opinion of what should have been done is not sufficient. The expert must establish what the standard of care is for the specialty, not his personal standard or preference.

There are two parts to the expert opinion needed: o o What is the Standard of care applicable to the D? Did the D fail to meet the applicable SOC?

• • • •

P must establish both- and then must also establish cause in fact and legal cause As to cause in fact, that often will require expert testimony as well, but is really a separate matter. The expert need not be in the same specialty to establish cause in fact Professional standards in other professions: o lawyers, accountants, architects, engineers

National v. Local standard o o Specialties- generally national General practices Most states- either “modified” local (i.e., same or similar communities) or national 71

 •

But generally can take in account availability of facilities- rural vs. city

Alternative medicine:- Note 5 page 519 o Holistic, eastern, etc.

HARNISH v. CHILDREN’S HOSPITAL MEDICAL CENTER
Supreme Judicial Court of MA, 1982. Page 520 Procedural History- A medical malpractice tribunal concluded that the P’s offer of proof was insufficient to raise a question appropriate for judicial inquiry. The action was dismissed after P failed to produce a bond. P appeals the dismissal. Facts- P underwent an operation to remove a tumor in her neck. During the procedure, her hypoglossal nerve was severed, allegedly resulting in permanent and almost total loss of her tongue. P’s complaint charges the physicians and the hospital with failing to inform her before surgery of the risk of loss of tongue function. Further, the complaint alleges that the loss of the tongue function was a material and foreseeable risk, and that, had she been informed of the risk, she would not have consented to the operation. A medical malpractice tribunal concluded that the P’s offer of proof was insufficient to raise a question appropriate for judicial inquiry. Issue(s)- Did the medical malpractice tribunal err in ruling that P’s offer of proof was insufficient to raise a question appropriate for judicial inquiry? Holding- Yes. A physician’s failure to divulge in a reasonable manner to a competent adult patient sufficient information to enable the patient to make an informed judgment on whether to give or withhold consent to a medical or surgical procedure constitutes professional misconduct. P must only prove that had the proper information been provided neither she nor a reasonable person in similar circumstances would have undergone the procedure. Rule(s)-The Rule of Liability- The performance of a surgical procedure by a physician without the patient’s consent constitutes professional misconduct. Doctrine of Informed Consent- “It is the prerogative of the patient, not the physician, to determine the direction in which his interests lie.” -Every competent adult has the right to forgo treatment, or even cure, if it entails what for him are intolerable consequences or risks however unwise his sense of values may be in the eyes of the medical profession. A physician owes to his patient the duty to disclose in a reasonable manner all significant medical information that the physician possesses or reasonably should possess that is material to an intelligent decision by the patient whether to undergo a proposed procedure. The information that a physician reasonably should possess is that information possessed by the average qualified physician or, in the case of a specialty, by the average qualified physician practicing that specialty. 72

The extent to which he must share that information with his patient depends upon what information he should reasonably recognize is material to the plaintiff’s decision. Materiality may be said to be the significance of a reasonable person, in what the physicians knows or should know is his patient’s position, would attach to the disclosed risk or risks in deciding whether to submit or not submit to the treatment. Reasoning/AnalysisDisposition- Reverse dismissal of claim against Dr. Holmes and Dr. Mulliken, uphold the dismissal against the hospital and Dr. Gilman.

NotesPhysician should disclose the material risks that may occur during the proposed procedure Material risks will vary depending on the type of surgery, whether it be elective or life saving. Doctor must disclose the risks that are material and inherent in the procedure, in addition to the risks of non treatment and alternative treatments. Informed Consent o Battery or Negligence   o Battery if no consent at all is given and the touching is intentional and harmful Negligence if consent to medical treatment by a physician, but the consent is based on inadequate disclosure of risks.

Why have informed consent?  Protects the patient’s sense of self-autonomy or bodily integrity – the patient should have the right to say what should be done to him. (not to individuals specifically, it is more general. Reasonable person standard) Protects patient’s decision making

 -

Harnish v. Children’s Medical Center o o Physician is guilty of malpractice when the physician performs surgery without the patient’s consent P must prove the failure of the Dr. to disclose the material facts. In addition, she must prove that but for the Dr. telling her, she wouldn’t have gone through with the surgery. Then P must prove that a reasonable person would have acted the same given the circumstances

o -

Policy: Patient’s interest o Physician is under a duty to disclose in a reasonable manner to competent adult patients sufficient information to enable patient to make an informed judgment as 73

what would a reasonable physician disclose to a patient as being a material risk Disclosure required is: all significant medical information possessed by physician or that he or she reasonable possesses. that is material to an intelligent decision by the patient whether to undergo a proposed. breach. What the physician should known in this context must be established by expert testimony (what knowledge should be possessed in the doctor’s field of practice) Materiality determination. Legal cause (was it foreseeable?) If the physician then breaches the duty of informed consent. cause in fact (But for test…). results are reversible Alternative procedures with the attendant risks and benefits - - Court adopts “patient-centered” approach. – Other half the states.patient autonomy standard Other side.half the states. if relevant.not exclusive or exhaustive) o o o o o o Nature of condition Nature and probability of risks Benefits expected Uncertainty of results Whether.physician centered standardmore modern trend rule.what information has significance in the decision making process to one in the patient’s situation as known to the physician or what as it should be known to the physician Materiality determination DOES NOT require expert testimony Factors to be disclosed: (merely an illustrative list. 74 .to whether to undergo medical or surgical treatment. (promotes more patient centered autonomy as opposed to the other side).Harnish Case o Reasonableness of disclosure is based on what a “reasonable patient” would need to know - About half the state have “physician-centered approach” o What would a reasonable physician disclose? (or what is customarily disclosed)  Expert testimony to establish what is customary in the field - Which approach is better? o o Patient center approach is more uncertain We are trying to balance the two- - Duty. patient still must prove o Cause in fact of harm as result of undergoing the procedure and the occurrence of that harm from an undisclosed risk that should have been disclosed.

brings on his land and collect and keeps there anything likely to do mischief if it escapes. for his own purposes. Page 526 Procedural History. The Appellate Court. FLETCHER House of Lords.Trial Court.No.. are the owners of a mill in P’s neighborhood.Plaintiff. for his own purposes. D appeals Facts. The Defendant. must keep it in at his peril. and if he does not do so. courts have generally applied an objective test regarding what must be disclosed (probably correctly so) and whether the patient would have undergone the procedure with disclosure. The defendants hired an engineer and contractor to build a reservoir to hold water under their land. 75 .Did the Court of Appeal err in ruling that the P had presented a cause of action which entitled him to damages? Holding. do all reasonable people have the same degree of risk tolerance? - Despite the rules’ obvious shortcomings. Issue(s). and if he does not do so. CHAPTER 14 – COMMON LAW STRICT LIABILITY ABNORMALLY DANGEROUS ACTIVITIES RYLANDS v. is prima facie answerable for all the damage which the natural consequence of its escape. et al. A person who. the Court of Exchequer Chamber. Fletcher.- P must also prove that a reasonable person would not have undergone the procedure Problem: is there a range of acceptable reasonable responses to risks? o In other words. Rylands. Rule(s). the water breached the vertical shafts and spewed onto P’s mines. causing considerable damage.A person who. overruled and held P was entitled to damages for the cause of action. is prima facie answerable for all the damage which the natural consequence of its escape. held that P had established no cause of action. Court of Exchequer. When they began to fill the reservoir with water. 1868. brings on his land and collect and keeps there anything likely to do mischief if it escapes. mined a piece of property that he occupies. must keep it in at his peril.

what arguments would the P make against the landowner?  o Non delegable duty Rylands as later interpreted and applied: 76 . should the thing escape from the owner’s land.liability without fault for damages caused by trespassing animals (livestock) American common lawo o o o o fencing out. comparative negligence may be used as a defense o - Abnormally Dangerous Activities o o One who brings onto his land something which poses risk of harm to others. – Rylands v. Fletcher If the engineers were negligent in the Rylands case. Abnormally Dangerous Activities. legal cause must still be established. then you must fence your animals in local variations in same state Wild animals. i.farmer oriented – if you want to hold your neighbors liable.Reasoning/Analysis- Disposition. the harm must be of the type reasonably foreseeable given the nature of the animal and plaintiff must be reasonably foreseeable In modern applications of the strict liability rule. then you have to have a fence around your property fencing in.rancher oriented.e.Affirmed Strict Liability Notes Liability without fault Animals. Products Liability - Animals: o Under English Common law.if you want to hold your neighbors liable.Both English and American common law impose strict liability Domestic Animals  Strict liability if reason to know of vicious propensity Otherwise must prove negligence o When animal owner is subject to strict liability. is liable without fault.

It is more equitable for the person who is engaging in the abnormally dangerous activity to bear the loss because they are the person that is creating the risk of loss to others.” – Restatement (3d) – can use this standard or the one above for the test Always considered an abnormally dangerous activity:   Dynamiting Pile driving o o - Not really looking at the danger to yourself in strict liability. then there is no claim o An activity is abnormally dangerous and therefore subject to strict liability if it “creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised” and it is “not a matter of common usage. 77 .   o o o Activities that are abnormally dangerous (abnormal use or activity) Creates danger to others Give rise to strict liability for injuries cause by such activities Strict liability has not been universally applied by US in abnormally dangerous activities How to determine what is abnormally dangerous? Factors to consider in making a determination as to whether activity is abnormally dangerous: Restatement (2d) § 520       High degree of risk of harm Likelihood that such harm will be great Effectiveness of reasonable care in avoiding the harm Common usage (more common= less likely it is to be abnormally dangerous) Appropriateness of the activity in the place where it occurs Value to the community o The kind of harm (and person harmed) must be foreseeable  Is what happened the foreseeable result of this conduct? • If No. Looking at dangers to other people in performing a certain activity Purpose of strict liability rule o Person who is not engaging in the activity should not have to bear the loss.

for his own purposes. Section 519-Strict Liability (1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person. Facts. 78 . she was involved in an accident with a gasoline tanker that was driven by Aaron L.Trial Court issued directed judgment for defendants. (b) Whether the gravity of the harm which may result from it is likely to be great. (c) Whether the risk cannot be eliminated by the exercise of reasonable care. P appealed to S. although he has exercised the utmost care to prevent such harm. of Washington which reverses. 1967. it is a risk of great harm and injury. KUHLMAN Supreme Court of Washington. Section 520. Transporting gasoline as freight carries a high degree of risk. Kuhlman testified that he was driving down hill when he felt a jerk and notice in the rearview mirrors that the trailer had disengaged from his truck.SEIGLER v. There was no evidence of impact with the vehicle. Rule(s). land or chattels of others.C. This is a case of strict liability as the activity that caused the injury is considered abnormally dangerous. The tank trailer catapulted off the freeway through a chain-link fence and landed upside down on Capital Lake Drive. On the early evening of November 22. (2) Such strict liability is limited to the kind of harm. brings on his land and collect and keeps there anything likely to do mischief if it escapes. the risk of which makes the activity abnormally dangerous Restatement of Torts. Issue(s). Kuhlman of Pacific Intermountain Express.Did the trial court err in refusing to give an instruction on res ispa loquitor? Should the trial court and Appellate Court have used strict liability arising as a matter of law from the circumstances of the event? Holding-Yes. Restatement of Torts.17 year old Carol House died in a gasoline explosion after her car encountered a pool of thousands of gallons of gasoline. the following factors are to be considered: (a) Whether the activity involves a high degree of risk of harm to the person. and it creates dangers that cannot be eliminated by the exercise of reasonable care. while driving home from after school job in Olympia. must keep it in at his peril. P appealed to Court of Appeals.A person who.What Constitutes Abnormally Dangerous Act? In determining whether activity is abnormally dangerous. 1972 Page 530 Procedural History. is prima facie answerable for all the damage which the natural consequence of its escape. and if he does not do so. land or chattels of another resulting from the activity. which affirmed. except for the fact that the left front headlight was broken.

(e) Whether the activity is inappropriate to the place where it is carried on.Reversed 79 . and (f) The value of the activity to the community. Reasoning/Analysis- Disposition.(d) Whether the activity is not a matter of common usage.

000 for plaintiff against the manufacturer.No. Issue(s). In 1957. Facts.PRODUCTS LIABILITY EMERGENCE OF STRICT TORT LIABILITY GREENMAN v. the attachment flew out of the wood and struck him in the head. His experts testified that inadequate set screws were used to hold parts of the machine together so that normal vibration caused the tailstock of the lathe to move away from the piece of wood being turned permitting it to fly out of the lathe. INC. it was sufficient that P proved that he was injured while using the Shopsmith in a way it was intended to be used as a result of a defect in the design and manufacture. After he had worked on a piece of wood several times. drill. Even if Plaintiff did not give timely notice of breach of warranty to the manufacturer. 1963. he bought the necessary attachments needed for a project he was working on. The purpose of strict tort liability is to ensure that the costs of the injuries resulting from defective products are borne by the manufacturers who put such products on the market rather than the injured person who are powerless in protecting themselves.CHAPTER 15 . 80 . a combination power tool that could be used as a saw. Plaintiff appeals. his cause of action on the representations contained in the brochure was not barred. and wood lathe. but returned a verdict for the retailer against the P. seeking a reversal of the judgment in favor of the retailer. Trial Court jury returned a verdict of $65. Page 540 Procedural History.Trial Court ruled that there was no evidence that the retailer was negligent or had breached any express warranty and that the manufacturer was not liable for any breach of an implied warranty.Did the trial court err in granting judgment for the plaintiff against the manufacturer in that Plaintiff did not give it notice of the breach of warranty within a reasonable time. Supreme Court of CA. 10 and ½ months later he notified the retailer and manufacturer of his claim for breaches of warranties and filed a claim for said breaches and negligence. therefore barring it from action under 1769 of the Civil Code? Holding. YUBA POWER PRODUCTS. of which P was not aware. His wife bought P a Shopsmith as a Christmas present in 1955.Plaintiff brought this action for damages against the retailer and manufacturer of Shopsmith. that made the Shopsmith unsafe for its intended use. Plaintiff introduced adequate evidence that his injuries were caused by defective design and construction of the Shopsmith. To establish the manufacturer’s liability.

INC. should have equipped the crane with mirrors. striking Gray in the back. which was denied. -Trial Court jury returned a verdict in favor of the Gray’s. in addition to already requiring signalcallers on the ground. or closed circuit television cameras.. His wife joined the action alleging loss of consortium and companionship.Rule(s).Plaintiff was struck in 2 separate incidents by the butt end of the boom of a Manitowoc 4100W crane while working as an ironworker foreman on a project near Port Gibson. MANITOWOC CO. proves to have a defect that causes injury to a human being. knowing that it is to be used without inspection for defects. appeals. Gray contends that Manitowoc. Plaintiffs.Earnest Gray and his wife Hughlene Gray. Plaintiffs. Page 544 Procedural History. Reasoning/Analysis- Disposition. for various things arising from personal injuries sustained by Earnest when he was struck by the boom of a construction crane manufactured by Manitowoc. 5th Circuit. or involve human activity to bring to market) DEFECT GRAY v. United States Court of Appeals.A manufacturer is strictly liable in tort when an article he place on the market. These incidents occurred while Gray’s crew was changing sections of the crane’s boom and had placed the boom in a roughly parallel position to the ground. Gray was standing on the left side of the crane supervising when the crane operator swung the lowered boom in Gray’s direction. Defendant moved for a j. Products Liability Notes A specific type of tort law Narrow and focused on a specific range of cases Refers to civil liability for injuries caused by defective products (humanly processed items. Manitowoc. Facts.o. 81 . Defendant. They sued under theories of strict liability. and negligence by asserting that Gray’s injuries were caused by a defect in the design of the crane and Manitowoc had failed to provide adequate warning of the defect.v. brought an action against the Manitowoc Company. 1985. artificial.Affirmed. MS. Testimony at trial established that the operator’s vision to the left side of the crane is obscured by the boom when the crane is in boom-down position.n. implied warranty.

n.The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchase it. Supreme Court of Oregon. KIMWOOD MACHINE CO. have been granted? Holding. “Product does not meet the reasonable expectations of the ordinary consumer as to its safety. No reasonable jury could have concluded that the blind spot of the 4100W was not open and obvious.Yes. The sanding machine was purchased from the defendant. 82 . as required by MS law? Should the j. Consumer Expectation Test of 402ADefective Condition. nor could any reasonable jury have concluded the 4100W was dangerous to a degree not anticipated by the ordinary consumer of that product. Rule(s). Kimwood.Plaintiff was injured while feeding a fiberboard into a sanding machine during the course of his employment with Pope and Talbot. the existence of a product defect must be established before recovery may be obtained for a resulting injury. Phillips appeals.Reverse and render judgment. At the completion of testimony. which will be unreasonably dangerous to him. Failure to Warn? PHILLIPS v. The record does not support a finding that the blind spot in the 4100W was a latent hazard.MS version of strict liability for hazardous products says that manufacturers are not insurers of the products they produce.Did the trial court err in allowing the jury verdict for the plaintiffs to stand? Did the evidence establish that there was a latent hazard. Plaintiff brought this action on a products liability theory.Issue(s).v. The evidence was overwhelming that the existence of this blind spot was common knowledge in the construction industry. at the time it leaves the seller’s hands. in a condition not contemplated by the ultimate consumer. with the ordinary knowledge common to the community as to its characteristics.o. contending the sanding machine was unreasonably dangerous by virtue of defective design. 1974 Page 548 Procedural History. Reasoning/Analysis- Disposition.Only applies where the product is. trial court judge granted D’s motion for a directed verdict.” Unreasonably Dangerous.

-Test for what is a dangerously defective article: Whether the seller would be negligent if he sold the article knowing of the risk involved. a thin sheet was mixed with the lot. P was engaged in feeding thick sheets of fiberboard into the sander. There was evidence presented that established that for a relatively low price. Evidence was also presented that after the accident.Reversed and Remanded NotesPhillips v. Reasoning/Analysis- Disposition. is liable. Seller-oriented standard v. and who failed to warn the employer of the problem. A dangerously defective article would be one by which a reasonable person would not put into the stream of commerce if he had knowledge of its harmful character. and inserted into the machine. hitting him in the abdomen and causing him injury.Did the trial court err in providing directed motion for Defendant? Holding. Rule(s)-Misdesign v. Although the employer decided to buy the machine without the automatic feeder from D.Facts.The process of determining what is unreasonably dangerously defective is much easier in the case of mismanufacture than misdesign. Somehow. who knew that the P’s company intended to feed the machine manually and who had constructive knowledge of the machine’s propensity to regurgitate smaller pieces of wood. The machine regurgitated the thin piece of wood back at P. that these safety “teeth” were inserted on the machines by the employer. Issue(s). Mismanufacture. Kimwood Machine Co.These standards are not inconsistent with one another as they both turn on foreseeable risks. User-oriented Standard. o o What is the appropriate test for unreasonably dangerous defect? Consumer expectation or Risk/utility (but in hindsight) 83 . P contends that the machine’s design was defective because it did not have safety devices to protect the person feeding the machine from the regurgitation of wood. a failure to warn can make a product unreasonably dangerous. A product is defective and unreasonably dangerous when a reasonable seller would not sell the product if he knew of the risk involved or if the risks are greater than the reasonable buyer would expect.On the day of the accident.Yes. They are two sides of the same standard. the machines could have been installed with a safety device to stop these types of injuries. The D.

Most courts have moved to a risk/utility based approach for design cases Less explicit about manufacturing defect cases. Flaw is particularly apparent in the effect of open and obvious dangers. look at cost and performance 84 . so that the product is unreasonably dangerous. In manufacturing defects:  Strict liability is generally applied (with negligence being an alternative) o o In design cases: jurisdictions are more divided    Strict liability using consumer expectation Strict liability using risk/utility in hindsight Strict liability using negligence: o • Reasonable alternative design available at the time of sale Reasonable design involves a risk/utility analysis.strict liability. failed to provide adequate warning about proper use.o o o o o o o On the other hand they like the fact that open and obvious dangers bar recovery and that the plaintiff has the burden of proof Mismanufacture. foreseeability of the risk o Alternative design test for design defect.built to specification but the design is dangerous and poses a risk of harm to consumers Court tries (unconvincingly) to reconcile the two approaches.the product deviates from the original blueprint/specifications (can be compared to others that are perfectly normal) Design defect. etc. courts generally adopt a negligence based approach: (information defect)  Seller/manufacturer must warn about dangers that were known or that were reasonably knowable (constructive knowledge) at the time the product was sold o Phillips bucks this trend by attempting to make warnings cases truly strict liability:  Would a reasonable manufacturer have warned if it had known what is known at the time of trial? o o o Design defect: the concept makes the product unreasonably dangerous Manufacturing defect: the produce deviated from the concept (blueprint) in such a way as to cause the product to be unreasonably dangerous Warnings defect: the manufacturer failed to give adequate warning about the product’s risks. where consumer expectation still is a significant factor in some sense In warnings cases..do not look at foreseeability. performance issues. and involves cost issues.

Duty to Warn of defects? FELDMAN v. the suit was brought for the failure to warn about the drug’s side effect.is this product more dangerous than a reasonable consumer would expect it to be? Most courts have moved to a risk/utlity based approach for design cases Less explicit about manufacturing defect cases. where consumer expectation still is a significant factor in some sense. SC of NJ remanded the cases to the Court of Appeals and it was again affirmed. Facts. The drug was manufactured by Defendant.Plaintiff has gray teeth as a result of taking a tetracycline drug. administered her the drug when she was an infant to control upper respiratory and other types of infections. Evidence was sharply contradicted as to whether the D knew of the side effect in 1960.is it something that is available? Consumer expectation test. 85 .negligence .Trial Court ruled for D. tooth discoloration. P took the meds from 1960-63. P appeals yet again on the issue of strict liability. Declomycin. Page 554 Procedural History.difference between Other risks involved. 1984.is the new product as efficient as the older design? Foreseeability issues. D did know of the risk and amended its labeling. Appellate Division Affirmed. Plaintiff brought suit not because the drug was defective in controlling infections.utility issues.     Cost issuesPerformance issues. D claimed that it was not liable because it did not know of the risk at the time its literature and product were disseminated. Most courts will use the negligence test Drug Manufacturers. but by 1962.beneficial to the point that they are worth some degree of risk   o o o o Aesthetics Technology. LEDERLE LABORATORIES Supreme Court of New Jersey. rather. a physician. Plaintiffs father.are the new dangers created by creating an alternative design more dangerous that the only risk? Value of the products use • Rx drugs.

or in other words. the defendant is assumed to know of the dangerous propensity of the product. he acted in a reasonably prudent manner in marketing the product or in providing the warnings given. the D should properly bear the burden of proving that the information was not reasonably available or obtainable and that it therefore lacked actual or constructive knowledge of the defect. may contain defects that could have been avoided by better manufacturing or design.Did the trial court err in ruling that the Doctrine of Strict Products Liability applies drug manufacturers? Was the medicine prescribed unavoidably unsafe? Holding. The medicine was not unsafe or unavoidably so.again 86 . given the scientific.No. and other information available when the product was distributed. the P must prove that the D knew or should have known of the danger. assuming the manufacturer knew of the defect in the product. -As to warnings. like any other product. -The question in strict liability design—defect and warning cases is whether. technological.Drug manufacturers have a duty to warn of dangers of which they know or should have known on the basis of reasonably obtainable or available knowledge. generally conduct should be measured by knowledge at the time the manufacturer distributed the product. whereas in a negligence case. of the danger. did he have actual or constructive knowledge? -In strict liability warning cases. Prescription drug manufacturers should not get a “blanket immunity” from strict liability manufacturing and design defect claims under comment K.Reverse and Remanded…. Whether a drug is unavoidable unsafe must be determined on a case-by-case basis. -The difference between strict liability and negligence is commonly expressed by stating that in a strict liability analysis. Reasoning/Analysis- Disposition. Did the D know. Rule(s). or should he have known. Drugs.Issue(s). Drug manufacturers have a duty to warn of dangers of which they know or should have known on the basis of reasonably obtainable or available knowledge.

Issue(s). Comment i of 402A. prove in order to establish that a product’s risks outweigh its utlity. Rule(s)-Consumer Expectation Test. the court abandon that standard and require the P to prove the existence of a reasonable alternative design in order to prevail on a design defect claim? Holding.Did the trial court err in applying the consumer expectation test to determine whether liability should be enforced? Should. Or Modified Consumer Expectation Test-Balancing Test that inquires whether a product’s risks outweigh its benefits.Shipyard workers claim they were injured as a result of using defectively designed pneumatic hand tools manufactured by Ds. Page 561 Procedural History- Facts. This would also require the P to obtain an expert witness. The feasible alternative design requirement imposes an undue burden on Ps that might preclude otherwise valid claims from jury consideration. 1997. as defendants urge.A manufacturer is strictly liable for any condition not contemplated by the ultimate consumer that will be unreasonably dangerous to the consumer.Design Defect Claims POTTER v.Section 402A.article sold must be dangerous to an extent beyond that which contemplated by the ordinary consumer who purchases it.Under the risk/utility test. The availability of a feasible alternative design is a factor the P may. Connecticut Supreme Court. with the ordinary knowledge common to the community as to its characteristics. usefulness of the product 87 . and in CN. it has commonly been held that an expert is not needed if the jury can infer a defect from the evidence. CHICAGO PNEUMATIC TOOL CO.No.Unreasonably Dangerous. the manufacturer bears the burden of proving that the product’s utility is not outweighed by its risks in light of various factors such as: 1. rather than must.

Reasoning/Analysis- Disposition-Affirmed. in MS. the ability to reduce the product’s danger without impairing its usefulness or cost 6. the likelihood and severity of the danger posed by the design 3. the feasibility of an alternative design 4.2.you have to prove BOTH consumer expectation AND reasonable alternative design theory.or… Causation Must be proven in products liability Cause-in-fact. the feasibility of spreading the loss by increasing the product’s price -Other jurisdictions apply only a risk/utility test to determine whether a manufacturer is liable. the financial cost of an improved design 5.what is technologically feasible and cost effective… or… standard custom of the injury…. State of the art.remains a required element of proof. use either or. NotesIf you can prove consumer expectation or reasonable alternative design theory. HOWEVER. even in strict liability Difficyl cases for plaintiffs: o Warnings  o Rebuttable presumption Crashworthy cases  Do car manufacturer’s have the duty to take into account crashes? Even from driver’s negligence? • Courts typically say yes o Test o Drug cases.who manufactured? Duty 88 .

danger need not have been foreseeable (at lease if the use was foreseeable).” Potter v. court is likely to use foreseeability in some way. even then.  o Negligence? Strict liability? Breach    Collapses with causation in a strict liability case Defect existed when the product left the manufacturer’s control and there was a causal relationship between the injury and the defect If product was changed after it left the manufacturer’s control. as in “now that we know the risk.more dangerous than contemplated by ordinary consumer who purchaser with common knowledge of the community - Connecticut court: o Feasible alternative design may be a factor to consider in determining whether a product is defective. but not the strongest. if hindsight test. is the risk one that would be considered reasonably foreseeable in the future. then it is not the same product. However. Chicago Pneumatic Tool Co What is the appropriate test for defect? o o o Consumer expectations Risk Utility Combination? Restatement 3d (general approach in the US. therefore no liability o Cause in fact  Injury was caused by an unreasonably dangerous product o o - Legal cause Damages Legal cause is very rarely and issue o o o Foreseeability is hindsight Would this injury have been foreseeable if the defect was known before? Plaintiff must be foreseeable but. but it is not a requirement 89 .there is a lot of mixture) o Unreasonably dangerous when the foreseeable risk of harm could have been avoided or reduced by adoption of a reasonable alternative design - Either or approach – Restatement 2d o Consumer expectation.

danger need not be foreseeable (at lease if the use was foreseeable) However.but for test In most states. but if hindsight test. is the risk one that would be considered reasonably foreseeable in the future - By standers: o Elmore v. court is likely to use foreseeability in some way. strict liability applies to any seller of a defective product.DES cases. as long as the seller is in the business of selling the product  Includes manufacturers.who manufactured?. wholesalers. even then.foreseeability Cause in fact. Still must pass test of foreseeability Have to prove causal connection • • o Legal cause. American Motors Corp. ex.o o o - Some products may be unreasonably dangerous even though there is no feasible alternative design A jury may be able to infer a defect in some circumstances without expert testimony as to alternative design Not comfortable with adopting the Restatement 3d Causation: o o o Cause in in fact remains a required element of proof P must prove that the defect existed when the product left the manufacturer’s/seller’s control P must prove that the defect was a cause in fact of the injury - Difficult cases for P’s: o Warnings  o o Rebuttable presumption Crashworthiness cases.trying to figure out how much of the injury could have been avoided had the product been property designed (car airbags. and retailers o A few states apply strict liability only to manufacturers (must be within the jurisdiction of the court and not bankrupt) 90 .how to decide who manufactured the drugs? - Legal Cause o o P must be foreseeable. as in “now that we know the risk.    Bystanders injured by product defect may bring strict tort liability claims. ) Drug cases.

then that establishes the standard (in place of duty of reasonable care) and breach simply becomes a matter of establishing that the standard of strict liability applies to these facts) o Products liability:  Duty: Determine which theory(ies) apply.  Can contributory negligence of P reduce P’s recovery in a strict liability products claim? • o o Comparative YES!!!!!! Torts Review Strict liability o o Animals Abnormally dangerous activities  (note: structure is the same as strict products liability. P may recover for physical damage to other property caused by Saratoga Fishing Note 1. However. wholesalers.Majority view: cannot recover in tort for damage to the product itsef Note 2. retailers • Negligence 91 .. As to defendants. you can sue for the damage done to the house. generally manufacturers.- Pure economic loss o o General rule: P may not recover damages in tort for physical damage to the product itself. Generally rules apply to users and bystanders (unless determined to be unforeseeable as matter of legal cause) as plaintiffs. If strict liability is the appropriate rule.damages approach. then normal duty-breach-cif-legal cause.e. (Ordinarily such a claim sounds in warranty or contract) If you buy a computer and it blows up. you can’t sue for the damage to the computer. General Motors Corp. Have to sue under warranty or contracts instead for the damage to the computer. if it burns the house down.what is the standard that pploes: strict liability or negligence? If negligence (i. not abnormally dangerous).tort recovery is allowed for physical damage to other property and economic loss caused by such physical damage or personal injury o o o o - Defenses based on consumer conduct: o Daly v.

• Strict liability o o Manufacturing Design  402-A • •  Consumer risk expectation Risk/utility in hindsight Restatement 3d 92 .

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