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I. Introduction: Legal Process, Institutions, Theories of Liability II. The Negligence Standard [p. 39-106;106-128] Failure To Use Ord/Reas Care [PROVE D-B-C-H] 1. The Standard of Care B. The Central Concept Adams v. Bullock - outside range of prudent foresight! [REVERSED!] o No special danger @ this bridge warned the D that here was need of specific measures of precautions. o Chance of harm, though remote, may betoken neg, if needless. o Facility of protection may impose a duty to protect. EX: Is it possible to insulate the wires? NO! o NEG ANALYSIS DET BY P P makes his choice from among a group of possible contenders and frequently alleges several untaken precautions in the alternative. Braun v. Buffalo GE the deceased, a carpenter, came in contact with the nowexposed wires; electrocuted. o ISSUE: Whether the Respondent in the exercise of RC/foresight should have apprehended and guarded against such contingency? Q FOR JURY What was reasonably to be anticipated?! o D bound to ANTICIPATE what was USUAL buildings being erected on the vacant lot. Personal harm v. Property Damage o Greene v. Sibley cust stumbled over foot of a mechanic who had knelt to look at the underside of the register. TC/AC AFFIRMED JUDG FOR P; CARDOZO REV. BOTH! CARDOZO: P failed to establish negligence on mechanics part Case of personal behavior not unreasonable business judgment o U.S. v. Carroll Towing Co. Bc of Ds neg the Anna C broke loose and rammed against a tanker, whose propeller broke a hole near the bottom of the barge. The Anna C soon filled with water & sank, losing cargo owned by the U.S. [REV/REMANDED for reconsideration of allocation of damages] Connors trying to recover value of barge from Carroll. TC, as fact-finder, found NO NEG on part of the bargee & Carroll appealed that finding among others. Bargee not liable bc no general rule to det when the absence of a bargee/attendant will make the owner liable for injuries to other vessels. NOT CUSTOM CUSTOM SHOULD CONTROL! Since there are occasion when every vessel will break from her moorings, owners duty to provide against resulting injuries is a function of 3 variables: 1. PROB that she will break away 2. GRAVITY of resulting injury [MAG of loss] 3. BURDEN of adequate precautions HANDS FORMULATION OF THE NEG STANDARD o Liability dep on whether: B (burden) < P (prob) x L (loss) PL > B NEGLIGENCE In this case, the likelihood varies with time & place. o EX: Storm danger is greater o B economic benefit from incurring costs necessary to prevent the accident.

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Costs > Benefit of accident avoidance forego acc prev Costs < Benefit of accident avoidance rational o RATIONALE Profit maximizing enterprising will pay tort judgment to the accident victims rather than incur larger cost of avoiding liability! Comp/ent. Made liable in expectation that selfinterest will lead it to adopt the precautions in or to avoid greater cost in tort judgments. DANGER & DUE CARE - Public good demands use of dangerous machinery - Danger is INSIG when weighed v benefits resulting from use of machinery. [until it no longer outweighs the danger to be antic.] o Chicago, Burlington & Quincy R. Co. v Krayenbuhl group of children were playing on the RRs unlocked turntable. Ps leg got caught and was severed. o To render it completely safe would INTERFERE with its beneficial use. Danger is LESSENED by use of a LOCK. o Use of a turntable w/ a lock is SLIGHT that it is OUTWEIGHED by DANGER antic by omission to use it. POSNER no info to quantify these variables (PLB) o McCarty v Pheasant Run, Inc. P assaulted in room at Ds resort by intruder who entered by a sliding glass door; chain fastened but no lock. JV FOR D. Ps JNWV DENIED; AFF ON APPEAL o Moisan v Loftus Car ran off the road o Of the 3 factors, CARE is the ONLY one ever susceptible of QUANTITATIVE estimate and often that is NOT. o Probability VARIES w/ SEVERITY of INJURIES! MARK GRADYS COMPLIANCE ERROR o Type of negligence, linked to the impossibility of driving or engaging in any high-rep prec behavior w/o an occasional lapse o DISTINGUISHED from Hands formula neg that tends to involve the quality of perf rather than high-repetition situation EX: Impossible to drive a car for any period of time w/o missing a required precaution. [special cost of consistent performance; people respond to this cost by trying to est for themselves an EFFICIENT RATE OF ERROR!] o Judges, however, assess penalties for EVERY miss & do NOT recognize special cost of consistency o Bolton v. Stone Visiting team drove ball out of Ds cricket field onto a relatively untraveled road. P was on that road & was hit by the ball. o HOLDING: risk so small that D might reas disregard it o LORD REID even the most careful person CANNOT avoid creating SOME risks and accepting others. o REASONABLE MAN TEST: Whether the risk of damage to a person on the road was so SMALL that a REAS MAN in the position of the appellants, from a safety POV, would have thought it RIGHT to REFRAIN from taking steps to prevent the danger? o Take into consideration: 1. How REMOTE the chance a person may be struck 2. How SERIOUS cons are likely to be if struck

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*If it CANT be done W/O creating a SUB RISK It should NOT be DONE AT ALL! *If SR difficulty of remedial measure insignificant Alternatives to Hands Formula: Foreseeable Danger Approach p. 6 Community Expectations Approach p. 53

2. The Reasonable Prudent Person Kelly v. Manhattan Ry. Co. Imposed duty upon common carriers of the exercise of the UTMOST CARE, so far as human skill and FORESIGHT can go. Bethel v. NYC Transit Authority P hurt on Ds bus when the wheelchair accessible seat collapsed under him. P could NOT PROVE D actually knew of the defect but relied on theory of constructive notice. JV for P due to HDOC inst. AD AFF COA REMANDED. o ISSUE: Whether a duty of HIGHEST CARE should continue to be applied, as a MOL, to common carriers? NO! o LEVINE: Court REALIGNED SOC req of common carriers with the tradl, basic neg SORC under the circ. RC under all the circ of the particular case. INST ERROR NOT HARMLESS! Carriers duty of EXTRAORD. CARE NO LONGER VIABLE! The infinite #/variety of situations which arise make it IMPOSSIBLE to fix definite rules in advance for all conceivable human conduct. SOC must be OBJECTIVE a fictional, reas person or ordinary prudence; FLEX to permit juries/cts fully to take into acct the ultrahazardous nature of a tortfeasors activity Wood v. Groh P accidentally shot w/ Ds gun fired by his 15 yr old son who used a screwdriver to take it out of a locked cabinet. JV for D. o Ordinary neg charge. P appealed D owed HIGHEST DEG OF CARE in safekeeping the handgun. AD agreed w P. o Under Bethel, hypo person whose conduct is taken to measure what is reas under the circumstances. o HARPERS TWO-FOLD EXTERNAL STANDARD: Whether the salient measuring stick of DC is the CONDUCT OR STATE OF MIND of the D? Whether it should be MEASURED against the Ds OWN CAPACITY or against an EXTERNAL STANDARD? o When REAS man FAILS to EXERCISE the FORESIGHT of which he is capable of exercises w/ evil intent NEGLIGENCE o The law req a man to possess ordinary cap to AVOID harming his neighbors, unless a CLEAR/MANIFEST INCAPACITY: When a man has a distinct DEFECT of such a nature that all can recognize it as making certain prec impossible. EX: blind man; infant of tender years bound to take prec of which blind/infant are capable NO GEN RULE RE INSANITY Insanity may be admitted as an EXCUSE when it manifestly incap the sufferer from complying w/ the rule hes broken; however, he could be insane yet able to take precautions! NOT LIABLE for UNINTL HARM UNLESS, possessing such capacity, he might and ought to have FORESEEN the danger, or UNLESS a man or ORD

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INTELLIGENCE/FORETHOUGH would have been to blame for acting as he did. Mental Ability o Vaughan v Menlove D landowner piled hay in a way that created a fire hazard to neighbors including P. Fire occurred; P WON. D contended that instead of charging the standard of ord prudence, the judge shouldve asked the jury to decide whether D had acted TO THE BEST OF HIS JUDG; CT REJECTED! Prudence VARIES w/ faculties of man TOO SUBJ! Physical Ability can be proven w/ comparative ease/certainty o Roberts v Ramsbottom D had suffered a stroke a few min before setting out on a drive; NO WARNING SIGNS. Impaired consciousness but SUFF POSSESSION OF FAC. D was @ no time aware of the fact that he has unfit to drive NO MORAL BLAME can be attached to him for driving, BUT D is responsible for FAILING to APPRECIATE the proper sig of his prior mishaps. Escape liability if @ the time actions wholly beyond his control. [Sudden unconsciousness] EXCEPTIONS: Retained some control and driving was below the req standard LIABLE CANNOT avoid liability on basis that owing to some malfunc of the brain, his cons was impaired. Alternate Ground of Liability: o Ds FAILURE to REALIZE, after one or two misadv on the road, that he was UNFIT to drive. DOESNT CONSIDER DEF OF ELDERLY/HANDIC Bashi v. Wodarz D rear-ended a car; left scene and collided w P. D claims little recall of events; no control of her actions. TJ granted SJ for D unanticip sudden onset of MI. COA REVERSED. o RES 283B/C Unless the actor is a child, his insanity or other mental def does NOT relieve the actor from liability for conduct which does NOT conform to the SORM under like circ/disability. o JUSTIFICATIONS: Difficulty of drawing any satisfactory line between mental deficiency and those variations of temperament, intellect, and emotional balance which cannot be considered in imposing liability The unsatisfactory char of the evidence of MD in many cases, together w the ease with which it can be feigned IF MD are to live in the world they should pay for the damage they do The expectation that liability will stimulate those who have charge of them or their estate to look after them, keep them in order, and see that they do NOT do harm. Superior Attributes o RES 289B D, in add to exercising the attn., perception of the circ, memory, knowledge of other pertinent matters, intelligence & judgment, as would a reas person, must ALSO exercise such superior attributes on the listed items as the actor himself has. Children

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Apart from statutes, parents are RARELY VL for their children. They may, however, be LIABLE for their OWN NEG in PERMITTING children to do something beyond their ability or in FAILING to exercise CONTROL a DANGEROUS CHILD. o Ps must often SUE CHILD DIRECTLY. o Children HELD TO BLENDED STANDARD: one that recog their age/abilities as well as obj component children must exercise the care that a REAS CHILD in their actual age/intel/experience would exercise. Mastland, Inc. v Evans Furniture Inc. Jurys inquiries 1. SUBJ: What was the CAP of the PART CHILD given what the evidence shows about his age/intel/exper to perceive and aovid the particular risk in this case? 2. OBJ: How would a REAS CHILD of LIKE CAP have acted under SIMILAR CIRC? 3. NEG ONLY IF ACTIONS FALL SHORT OF WHAT IS REAS EXP OF CHILDREN OF SIM CAPACITY! Ellis v. DAngelo 4 yr old charged w neg shoving a babysitter to the floor. 4 yr olds dont have MC to foresee poss of their inadvertent conduct NOT NEG! Price v. Kits Transit Children BELOW 6/7 conclusively presumed to be UNABLE to comprehend risk suff to be held negligent. REBUTTABLE PRESUMP for 7-14 Dellwo v Pearson When child engage in adult condition apply adult standard [oper of car/airplane/powerboat] Goss v Allen 17 yr old beg skier, whe attempting to negotiate a turn, collided w P. Skiing act for all ages cant be held to adult stand. 18 approp age for holding persons to adult standard. Stevens v. Veenstra 14 yr old student driver taking a DEd course held to adult standard for conduct duing his first lesson w/ an instructor. When the prob of/or potential harm assoc w/ a particular is GREAT, anyone engaged in the activity must be held to a certain min level of competence! [lack of competence is NO excuse!] Emergency Doctrine A person confronting an emergency NOT of his/her OWN MAKING is REQ to EXHIBIT only an HONEST exercise of judgment. o Levey v. DeNardo D rear-ended P who had stop suddenly when a car came across her path. TJ refused to inst jury to judge Ds conduct under emergency doctrine. ERROR REVERSED! Confrontation w SUDDEN, UNFORESEEABLE occurrence bc of shortness of time in which to react should NOT be held to the same SOC as someone confronted w a foreseeable occurrence. Many states refuse to give an ED charge in ANY neg case. Bjorndal v. Wettman - Neg standard focuses on whether a person acted w/ RC to avoid harm to others, in light of all the circumstance including any emergency o

a. Roles of Judge/Jury a. In General 1. Baltimore & Ohio RR Co. v. Goodman SC 27 driving truck hit by train. Suit brought by widow/admin of D v petitioner for causing his death by running him down at a grade crossing. Verdict/judgment for P. REVERSED

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a. D was familiar with the crossing; daylight NOTHING to RELIEVE D from responsibility for his own death b. If a driver cant be sure whether a train is dangerously near he must stop, get out & look. Imposes a spec duty on drivers @ grade crossings. c. Question of due care left to jury, but when we are dealing w/ standard of conduct and it is clear it should be laid down! 2. Pokora v. Wabash Railway Co. 34 P was driving his truck across 4 tracks of Ds RR. A string of boxcars on the switch tracks north of the crossway cut off Ps view of the track. As he moved past that track, he listened but heard no bell/whistle. As he reached the main track he was struck by a train. Relying on Goodman, COA UPHELD DV for RR DUTY to look along the track. HELD Goodman imposes a standard for app by the judge. LIMITED it accordingly. REVERSED/REMANDED a. Question for jury whether reas caution forbade his going fwd in reliance on the sense of hearing unaided by that of sight. b. FELL SHORT OF THE LEGAL STANDARD OF DUTY EST FOR TRAVELER WHEN HE FAILED TO LOOK & SEE! c. What constitutes reas care under the circ ordinarily is a question for the jury but not every case is for the jury. 3. Andrews v. United Airlines, Inc. 94 A briefcase fell from an overhead compartment and seriously injured P. P claims injury was foreseeable and airline didnt prevent it. DC dismissed suit on SJ. HELD heightened duty of CC, even small risk of injury to passengers may form basis of liability SJ NOT APPROPRIATE REVERSED/REMANDED a. Issue: whether the hazard is serious enough to warrant more than a warning? b. D is a COMMON CARRIER owes both a DUTY of utmost care and vigilance of a very cautious person towards its passengers. c. Announcement/warning industry standard d. P made a SUFF CASE to OVERCOME SJ e. A jury could find D failed to do all that human care, vigilance and foresight reas can do under all the circ f. Given awareness of hazard, D may not have done everything tech permits & prudence dictates to elim it. g. Jurors well equipped to decide whether D had a duty to do more than warn passengers. 4. Good Samaritan Laws protect doctors from neg claims req proof of recklessness/gross neg in order to subject them to liability for damages. b. Role of Custom 1. Trimarco v Klein NY 82 P was badly cut when he fell through the glass door that enclosed his tub in Ds apt bldg. (door ordinary thin glass installed in 1953) Ct REVERSED/DISMISSAL/ORDERED NEW TRIAL error in admitting certain evidence hurting defense. a. Since the 50s a practice of using shatterproof glass in bathroom enclosures had come into common use GLASS NO LONGER CONFORMED to accepted safety standards. b. Even if there was custom/usage; there was NO COMMON LAW DUTY on D to replace unless prior notice had come to D from P or by reason of similar accident. c. Garthe v. Ruppert P slipped on wet brewery floor & tried to show it was FEASIBLE to keep floor dry by demonstrating ONE

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brewery had a tech for keeping floors from getting wed. CT HELD EVIDENCE INADMISSIBLE! i. When certain dangers have been removed by a custom way of doing things safely, this custom may be proved to show that D has fallen below the required standard. d. Proof of accept practice + evidence D conf = DC e. Proof of accept practice + evidence D ignored + PC of accident = liability f. Question in each instance is whether it meets the test of REASONABLENESS of Ds cond under all the circ. g. ? for jury to det. whether or not the evidence does est. a general custom or practice 2. T.J. Hooper 32 A tug plying the Atlantic Coast sank in a storm, causing the loss of barges it was towing and their cargoes. No radio to learn of storm in time to avoid. a. Lack of radios standard of care? b. General practice sets the standard? c. Hand: there are precautions so imperative that even their universal disregard will not excuse their omission d. Here there was NO CUSTOM 3. La Valle v. Vermont Motor Inns P fell in his room during a power outage @ Ds motel. TC GRANTED DV - held evidence INSUFF as MOL to show motel owner had failed to exercise ordinary care to P. UPHELD ON APPEAL a. Past power outages but NO INJURIES b. No motel had emergency lighting in room c. INDUSTRY CUSTOM NOT conclusive but USEFUL GUIDE UNLESS under past circ. A REAS PERSON would not conform to industry-wide custom. 4. Levine v. Russell Blaine Co. P cut her hand on a rope while operating a dumbwaiter; infected amputated arm. D owner failed to follow custom of using smooth rope. TC held if P could show PURPOSE of smooth rope was to AVOID INJURY ADMISSIBLE a. P can achieve this by simply proving OTHERS in the industry developed SAFER techniques than P. [SEE GARTHE ^] c. Role of Statutes b. Proof of Negligence c. Medical Malpractice III. The Duty Requirement: Physical Injuries [p. 129-217] A. INTRODUCTION In CH. 2, D did NOT DENY an obligation to behave reasonably toward P. CH 2 is ref to as a BOD a clear indication that SOME DUTY must EXIST before a D can be said to have committed actionable negligence. SPECIAL R/S appeared to be the BASES for IMPOSING DOC. o EX: inn-keeper/guest, carrier/passenger, highway collision cases general obligations of care to others. o FAILURE to EST a RELATIONAL setting was often FATAL to CLAIM that D should be held responsible for lack of DC.

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Privity Doctrine: Manufacturer of a product generally owed a DOC in its manuf ONLY to person who ACQUIRED prod from the maker. [NO DUTY to REMOTE buyers/users] o MacPherson v. Buick Motor Co Car manuf owed a DODC to someone who bought a car from an INTERMEDIATE dealer. When its the nature of the thing to place life/limb in peril when neg. made a thing of danger [CAR] Danger + Knowledge it will be used by persons OTHER than the purchaser manuf is under duty to make it carefully. DUTY to SAFEGUARD when FORESEEABLE cons. B. AFFIRMATIVE OBLIGATIONS TO ACT R3T s 40 Liability for Physical Harm: The ? of whether any r/s is SUFF to impose a duty is a ? for the CT but whether on the facts of the case, such a r/s exists is a ? for the JURY! o Q OF LAW The EXISTENCE of a DUTY o Q OF FACT - Some FACTUAL CIRC give RISE to a DUTY Instances where: o a person is in imminent peril; o another is subject to a less imminent risk Harper v Herman SC Minn 1993 TC jud for D; SJ OWED NO DUTY. COA REVERSED D, the owner & operator of a private boat on lack had [and assumed] DUTY to WARN P, a guest on the boat, that water surrounding the boat was TOO SHALLOW for diving. SC REVERSED/REINSTATED Jud for D. o ISSUE Whether a boat owner who is a social host owed a DOC to warn a guest on the boat that the water is too shallow for diving. o HOLDING The fact that an actor realizes or should realize that action on his part is NEC for anothers aid/protection is NOT itself SUFF to impose a duty to take such action UNLESS SPEC R/S! DUTY ONLY WHEN SPECIAL R/S EXISTS! o D did NOT have CUSTODY of P; P was NOT under circ where he was DEPRIVED of normal opportunities to protect himself; NO allegation that P EXPECTED protection from Herman. Andrade Ellefson Minn 1986 Actual KNOW of a dang cond tends to impose a special duty to do something about that cond. SUPERIOR KNOW of a dang cond by itself, in ABSENCE of DUTY to provide protection is INSUFF to est liability in neg. Harpers know = liability! EXCEPTIONS TO NO DUTY TO RESCUE RULE: a. SPECIAL R/S o Bjerke v. Johnosn Minn 07 Court found special r/s based on surrogate parent/custodial role to which D agreed when she invited P to live @ stable. b. UNDERTAKINGS Farwell v Keaton, Randi v Muroc c. NON-NEGLIGENT INJURY o Maldonado v South Pac Trans Ariz 81 If the actor KNOWS or has REASON to KNOW that by his CONDUCT, whether tortious or innocent, he has CAUSED bodily HARM to another so as to make him helpless or in danger of more harm DUTY to exercise RC to PREVENT further harm. d. NON-NEGLIGENT CREATION OF RISK o Simonsen v Thorin Neb 31 D knocked light pole into st and drove on. Suit by driver who ran into pole. HELD: AFF DUTY

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to use DC to remove/warn others even if not liable for creating the hazard. o Menu v. Minor Col 87 Driver lost control, hit the median and came to rest, blocking lane of interstate highway. Cab picked him up and drove him away. Ps then crashed into Ds disable car. Suit against cab comp. HELD cab had NO DUTY to stay/warn others. o Tresemer v Barke 78 P seriously injured due to IUD placed by physician D. HELD P stated COA; D FAILED to warn her of NEWLY-DISC DANGER! e. STATUTES o Uhr v. East Greenbush Farwell v Keaton SC Mich 76 TC JV for P. COA REV; SC REV/REINSTATED. Siegrist FAILED to exercise RC after VOL coming to AID of P NEG was PROX CAUSE of Ps DEATH! o Siegrist drove P around for 2 hours; drove P to gpas house and left him in the driveway! Siegrist KNEW P badly injured/ shouldve done something DUTY to come to FARWELLS AID! o 85-88% chance of survival had he been seen an hour after fight o LEGAL DUTY TO AVOID AFF ACTS MAKING SIT WORSE! If PERF has BEGUN DUTY OF CARE! Jury must det if D ATTEMPTED to AID victim. If SO, a DUTY AROSE req P to ACT as a REAS PERSON! Siegrist BREACHED legal duty owed to P. Siegrist and P were companions of a social venture COMMON UNDERTAKING understanding of assistance if in peril. Cts will FIND a DUTY where, in general, reasonable men would recognize it and agree it exists. Siegrist KNEW of peril and COUD AID W/O ENDANGERING HIMSELF AFF DUTY TO AID P! o FITZGERALD DISSENT: close r/s does NOT est a legal duty. Ds NONFEASANCE or passive inaction/failure to take steps to protect the decedent from harm was NOT the proximate COD. Facts w/in Ds knowledge do NOT indicate immediate med attn. was necessary! Neg is operative ONLY AFTER ct has est duty is owed! Mixon v Dobbs Houses, Inc. GA 79 Mgr said hed tell P if wife called. Wife went into labor and mgr forgot to tell P. o DUTY of RC exists if the actor INCREASES the RISK of harm or if others RELY on actors undertaking. Randi W v Muroc Joint Unified School Dist SC Cali 97 P, 13 yr old student, alleged 4 school dist, former employers of Robert Gadams, placed affirmative ref in a placement file despite their knowledge of prior charges/complaints of sex miscon/impropriety against him. SC granted dem/COA rev/SC affirmed on neg misrep/fraud, but reversed on 3rd theory. ISSUES Did Ds owe her a DUTY? Did they BREACH that duty by making misreps or giving false info? Did Livingstons reasonable RELIANCE CAUSE Ps INJURY? Policy considerations NO DUTY BUT liability may be IMPOSED if the recom letters amount to AFF MISREP presenting FORESEEABLE/SUB RISK PH to 3rd person.

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HOLDING Contrary to COA judgment, Ds alleged failure to report the charges of Gadams improper activities to approp authorities pursuant to state statutory law FAILS to afford an alt basis of tort liability. TC prop sust demurrer In light of the factors/policy cons listed below, ct held that the writer of the LOR OWES to 3rd PERSONS a DUTY NOT TO MISREP the facts in describing the qual/character of former employee if doing so would present a SUB & FORESEEABLE RISK of PI. NO PI? NO SPECIAL R/S NO DUTY! A. R2T 311 - NEGLIGENT MISREP/FRAUD/HALF-TRUTHS: One who neg gives false info to another is subject to liability for PH caused by action taken by the other in REAS RELIANCE upon such info, where such harm results o To another, or o To such 3rd persons as the actor should reasonably expect to put in peril by the action taken Such negligence may consist of failure to exercise reasonable care a. In ascertaining the ACCURACY of info, or b. In the MANNER in which it is COMMUNICATED DUTY TO P R2T 315: Generally NO DUTY to WARN those threatened by 3rd persons conduct. [DUTY HERE!] o Thompson v. County of Alameda DUTY to WARN READILY IDENTIFIABLE victim o Tarasoff v Regents of Univ of Cali SPEC R/S creates DUTY to WARN or CONTROL anothers conduct o Garcia v. Superior Court The absence of a duty to speak does NOT entitle one to speak falsely! CHOOSING to COMM INFO DUTY TO USE RC IN DOING SO! o GEN RULE DUTY to use RC to PREVENT others from being INJURED as result of their CONDUCT. o Rowland v. Christian Considerations to determine whether a departure from the general rule is approp: Foreseeability of harm to the P [GENERALLY] Degree of certainty that P suffered injury Closeness of the conn btwn Ds conduct & injury Moral blame attached to Ds conduct Policy of preventing future harm Extent of Ds burden Consequences to the comm of imposing a duty Availability, cost & prev of insurance for risk a. FORESEEABILITY AND CAUSALITY 1. Could Ds REAS have FORESEEN that the reps/omissions in their LORs would RESULT in PI to someone? ASSAULT REAS FORESEEABLE! b. MORAL BLAME Depends on proof at trial 2. Unreserved rec + failure to disclose facts reas nec to avoid or min risk of further child molestationMB! c. AVAILABILITY OF INS/ALT COURSE OF COND 3. We may assume that standard business liability insurance is available to cover instances of neg misrep/nondisc; NOT AVAIL for fraud/intenl misc

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4. Alt COC 1. Writing a full disc letter; writing a no comment letter omitting any affirmative reps. 5. Employer DOES NOT have an AFF DUTY of disclosure precluding a no comment letter! 6. Liability may NOT be imposed for mere nondisc or failure to act in absence of special r/s -not here d. PUBLIC POLICY CONSIDERATIONS 7. Policy of PREVENTING harms of kind alleged 8. Ds urge competing econ/social policies may disfavor imposition of liability for misrep/nondisc (detriment to employers/employees) MISLEADING MISREPS OR MERE NONDISCLOSURE? o Misleading HALF-TRUTHS that could invoke an EXCEPTION to GENERAL RULE excluding liability for mere nondisclosure or other failure to act. RELIANCE o Allegations of Livingstons reliance were sufficient! Jackson v State Montana 98 State did NOT tell Ps known info, inc results of psych eval performed on adoptees biological parents. HELD adopting agencys DUTY based on VOL DISSEM of health info concerning the child to potl parents. D was subject to a duty of DC based on providing background info to the Ps. Passmore v Multi Mngmt Serv, Inc. Ind 04 Ct refused to adopt R2T 311 to protect the free-flow of info btwn past and prospective employers. MISSING TARASOFF & UHR!!! C. POLICY BASES FOR INVOKING NO DUTY D has played a role in CREATING the RISK that harmed P BUT still some cts will determine NO DUTY exists, thereby w/drawing poss that D is liable even if neg. o EX: Burden on 1st amend principles of free speech would be TOO GREAT if movie producers could be held liable when a move influenced someone to commit a copycat assault, rape or killing. Strauss v Belle Realty Co. COA NY 85 77 yr old tenant fell on def basement stairs. TC denied Con Eds MTD. AD REV/DISMISSED; COA AFF REVERSAL on PP. o ISSUE: Whether Con Ed owed a DOC to a tenant who suffered PI in a common area of an apt bldg. where his landlord (not he) had a K r/s with the utility. o HOLDING: In cases like these, LIABILITY for injuries in a bldgs common areas should, as a matter of public policy, be LIMITED by the K R/S. FORESEEABLE INJURIES + NO SPECIAL R/S = NO LIABILITY o Arrangement no diff than those Con Ed had w/ other customers tenants as narrowly defined class [#s] but identities subject to change! o Permitting recovery in these circ would VIOLATE the cts RESPONSIBILITY to DEFINE an ORBIT of DUTY placing contractual LIMITS on liability. o Justice Gibbens DISSENT: EXTENSION of duty TOLERABLE here bc tenants constitute DEFINED, LIMITED & KNOWN GROUP. [FORES. INJURY] o Justice Meyer DISSENT: Con Ed can increase rates/seek reduction to pay judgments against it. Ct ignores burden placed on P injured by Con

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Eds gross neg. Its like saying, the more persons injured by tort feasors GN, the less the responsibility of injuries incurred. Pulka v Edelman NY 76 D may be held LIABLE for neg ONLY when it BREACHES a DUTY OWED to P. o An obligation rooted in K may engender a duty owed to those NOT in privity but cts resp, in fixing orbit of duty, to limit the legal cons of wrongs to K degree. Fish v Waverly Electric Light & Power Co. NY 1907 An electric co which had K w/ Ps employer to install ceiling lights had a DUTY to P to EXERCISE DC! Moch Co v Rensselaer Water Co. NY 1928 A water works co K w/ the city to satisfy its water requirements. Ps warehouse burned down so P sued water co based on its NEG in FAILING to SUPPLY suff WATER pressure to citys hydrants. COA held complaint should be DISMISSED! o Ct denied recovery proposed enlargement of zone of duty would UNDULY & INDEFINITELY EXTEND LIABILITY o MERE NEG OMISSION, unaccompanied by malice or other aggravating elements at most, a DENIAL of a BENEFIT NOT COMM OF A WRONG! o CARDOZO no common law tort action available to users of the water for city. o Glanzer v Shepard NY 22 One who ASSUMES to ACT, even though GRATUITOUSLY, may thereby become subject to the DUTY of ACTING CAREFULLY, IF he ACTS at ALL! o MISFEASANCE V. NONFEASANCE EX: SURGEON, even if operating w/o pay, is LIABLE for his NEG though it arises out of OMISSION to STERILIZE instruments; or ENGINEER FAILING to SHUT OFF steam! o Libbey v Hampton Water Works Co NH 78 DENIED RECOVERY due to fact that water co dont charge higher rates in areas that have high fire risks. o Clay Electric Co-Op Inc v Johnson FL 03 HELD that utility under K to a city to maintain street lights might owe a duty to a pedestrian who was run down in a darkened area due to utilitys neg in maintaining street lights. REJECTED MOCH FOR FAILING TO RECOG DIST BTWN INSTALLING V. MAINT. White v Guarente NY 1977 Acct firm retained by a lim partnership to perform an audit and prepare tax returns. Ct REFUSED to DISMISS NEG ACTION! o Services were extended to a KNOWN GROUP of people possessed of vested rights, marked by a DEFINABLE LIMIT and made up of certain components. 1. SINGLE ISOLATED TRANSACTION 2. PROTECTION OF IDENTIFIABLE INDIVIDUALS o Ability to extend Ds duty to COVER SPEC FORESEEABLE PARTIES @ same time to CONTAIN LIABILITY to manageable levels. Palka v. Servicemaster Mngmt Serv Corp 1994 P nurse injured when a wallmounted fan in a patients room fell. Ct held that to find a duty, the r/s btwn Ds K obligation & the injured nonK partys reliance/injury MUST be DIRECT and DEMONSTRABLE, not incidental or merely collateral. o Functions of D were not directed to a faceless or unlimited universe of patrons., but rather a KNOWN IDENTIFIABLE GROUP. o Responsibility to perform/maintain services w/ ordinary prud of care!

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The very AIM of the K was to make it SOLE privatized prov for a safe hospital! TAKE HOME ASBESTOS CASES o Where an employee who works w asbestos brings home asbestos fibers on his/her clothes, exposing family members to it. o Re NYC Asbestos Litigation NY 05 P spouse sued husbands employer, the Port Authority, which owned bldgs where husband was exposed to asbestos. HELD NO DUTY TO P neither as employer or landowner! LIMITLESS LIABILITY CONCERN Employee should take risk reduction effort employer has NO DUTY to CONTROL a 3RD PARTY! o Olivo v Owens Ill, Inc. NJ 06 Relying on foreseeability of harm to the spouse, Ct brushed aside the limitless liability concern. D was AWARE of the EXPOSURE of SUFF DURATION/INTENSITY to asbestos dust or raw asbestos & its ASSOCIATION w/ ASBESTOS! [NJ FOUND LIABILITY!] o Martin v Cin Gas & Elec Co 09 - Ct found RISK of harm to family members to be UNFORESEEABLE D owed NO DUTY to decedent, employees son. Reynolds v Hicks SC Wash 98 Steven Hicks had drinks @ uncles weeding where there was a hosted bar. Left in siss car and crashed into P. TC DISMISSED Ps PI action on SJ v D. SC WASH AFF DISMISSAL finding that D social hosts owed NO DUTY to 3rd person. o ISSUE: Whether D social hosts who furnished alcohol to a minor owe DOC to 3rd persons injured by the intoxicated minor? o Hansen v Friend Wash 92 A minor who is injured as a result of alcohol intox has a COA v social host who supplies alcohol based on RCW 66.44.270. o HOLDING: Such an EXPANSION of Hansen is NOT WARRANTED by the statute or Washington case law. Inherent diff btwn social hosts and commercial vendors Social hosts are NOT as CAPABLE of monitorting guests alcohol consumption Comm proprietors have a proprietary interest and profit motive should execise GREATER SUPERVISION Implications of social host liability more unpred/touch more adults o SCOPE OF DUTY WOULD BE ILL-DEFINED! o UNREALISTIC/FAR-REACHING SOCIAL IMPLIC. COA exceptions to liability in RCW lend weight to argument that the statute was NOT enacted to protect 3rd persons. Authorizes a parent/guardian to legally give alcohol to minors JOHNSON DISSENT: Where leg has made it a crim offense to furnish alcohol to a minor, that minor has a civil COA AS WELL AS 3rd parties FORESEEABLY injured by that minor. INSUPPORTABLE DISTINC! Social hosts in BEST POSITION to know ages of guests NO JUSTIFICATION for applying different standards! o

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Estate of Templeton v Daffern Wash 00 Ct REFUSED to IMPOSE DUTY of DC on social hosts where a minor brought his OWN alcohol. Marcum v Bowden SC 07 Ct adopted a DUTY NOT TO KNOWINGLY/INTENTIONALLY SERVE someone under 21. Those who did subject to LIABILITY to ALL those who were injured as result. Gilger v Hernandez Utah 00 Ct REFUSED to IMPOSE a duty on SH to protect guests from another guest who had become drunk @ party. NO SOCIAL HOST LIABILITY DRAM SHOP ACTS NO SPECIAL R/S DUTY INCAPABLE OF PERFORMANCE NO ELEMENT OF DEPENDENCY/ABLE TO PROTECT DUTY ARISES AFTER GUEST IS INJURED Luoni v Berube Mass 00 REJECTED DUTY on the host where one guests actions w/ firework injured another guest. White v Sabatino Hawaii 06 A person who AGREES to ACT as a DES DRIVER has a DUTY to 3rd PERSONS. DUTY ARISES FROM UNDERTAKING ONLY IF PERFORMANCE BEGINS! DRAM SHOP ACTS Impose liability on comm enterprise for harm resulting from intoxication when they serve a person to the point of intoxication or serve an intoxicated person! NEGLIGENT ENTRUSTMENT o Vince v Wilson SC Vt 89 P, seriously injured in an auto accident, brought suit against D who had provided funding for her grandnephew, the driver of the car in which P was a passenger @ the time of the accident, to purchase the vehicle. TC DV in favor of D [Dealer/Pres]; claim v aunt sent to jury. [JV4P] HOLDING: Viewing evidence in light most favorable to the P, evidence indicates WILSON KNEW that the operator had NO DL/failed test/abused alcohol/drugs. TC ERRED in DV favor of Dealer/Pres, but AFF cts decision to submit Q to jury as to judg v Wilson. [REMANDED!] o DiCranian v Foster Vt 46 Liability arises out of the combined negligence of BOTH, the NEG of one in ENTRUSTING the auto to an incomp drive and of the OTHER in its OPERATION. [COMBINED NEG OF 2+ PERSONS!] Limit recovery to situation where D is owner or has right to control, R/S of D to INSTRUMENTALITY is but a FACTOR to be considered! KEY FACTOR NE theory REQ SHOWING that the ENTRUSTOR KNEW or shouldve known some REASON why entrusting the item to another was FOOLISH/NEG! o Peterson v Halsted Colo 92 D father cosigned a financial note so his daughter could get financing for a car. She made all payments & after 3 years, she caused an accident due to her drunk driving. Large # of variable in fin agreement! HOLDING: Ct DECLINED to IMPOSE a DUTY on A CO-SIGNER!

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In this case, NO COMMON LAW DUTY is or can be imposed on parents TO REFRAIN from helping their daughter. o Lydia v Horton SC 03 Injured driver could NOT employ a NE claim v owner friend. As a MOL, drivers fault > entrusters fault. o Osborn v Hertz Corp 88 Ct REJECTED a claim that the RC had a DUTY to INVESTIGATE the DRIVING RECORD of a sober cust who had a valid DL. o West v East Tennessee Pioneer Oil Co Tenn 05 Ct REJECTED Ds claim that SPECIAL R/S REQ before DUTY of RC existed. D OWED DUTY based on its CONDUCT in assisting the driver in his purchase of gas. Ps NE claim could go fwd APPLIES TO SALES & ENTRUSTER DOESNT HAVE TO RETAIN CONTROL! KEYS IN THE IGNITION thief takes opportunity to steal the car and neg runs into P causing injuries for which a claim is brought v the only SOLVENT party, the car OWNER, alleging NEG in LEAVING the CAR VULNERABLE to THEFT! o Liability violation of a statute in some states! o Palma v. U.S. Industrial Fasteners Cal 84 D driver left truck unlocked overnight w the key in the ignition in a HIGHLY dangerous neighborhood. SPEC CIRC REQ in order to find a duty owed by car owners to general public: AREA in which truck was parked INTENT that the truck remain in the location for a rel long pd of time SIZE of the vehicle [truck is capable of inflicting more serious injury] OPERATION not a matter of common experience? [CDL] *COMBINED FORESEEABLE RISK OF HARM IMPOSES DUTY TO REFRAIN FROM EXPOSING 3RD PERSONS TO RISK! o Kitchen v KMART Co FL 97 P ex, who had been drinking all day, bought a gun and ammo @ D, sought P and shot her. JV v D UPHELD! R2T 390: One who supplies chattels to another is NOT entitled to assume that it will be used carefully if supplier knows or has reason to know that the other is likely to use it dangerously, as where the other belongs to a class which is notoriously incompetent to use it safely, lacks training & experience necessary for such use. o Weirum v RKO General, Inc. Cali 75 D radio station found liable for the death of a driver forced off the highway by a minor driver pursuing a DJ. o Rice v Paladin Enterprises 97 Murders allegedly accomplished by following Ds book Hit Man. SJ for D on 1st amend REV/REMANDED. D had KNOW/INTENT for the book to be used to assist criminals in K murders. D. THE DUTIES OF LANDOWNERS/OCCUPIERS Duties owed to ENTRANTS by those who own, or are in possession of, land for harm arising from cond on the land. [DIFF RULES APPLY WHEN HARM IS RESULT OF ACTIVE OPERATIONS OF LANDOWNER] PREMISE LIABILITY SOC [invitee or licensee] is a QUESTION OF LAW o TRESPASSERS: all entrants UNTIL GIVEN PERMISSION GENERALLY NO DUTY

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R2T S 333: Except as stated in s 335-339, a possessor of land is NOT LIABLE to tresp for PH caused by his failure to exercise RC a. to put land in a cond reasonably safe for their reception, or b. to carry on his activities so as not to endanger them. LISTED EXCEPTIONS CREATE OBLIGATION TO WARN o Possessor KNOWS that persons CONSTANTLY intrude upon a lim area and may encounter a HIDDEN danger o Possessor FAILS to exercise RC for SAFETY of KNOWN tresp o DUTY NOT TO WILLFULLY/WANTONLY HARM TRESP LICENSEES: Entrants W/ PERM UNTIL possessor has INTEREST in visit such that vis has REASON TO BELIEVE prem have been made SAFE to receive them DUTY TO MAKE SAFE DANGERS POSS IS AWARE OF SOCIAL GUEST: Received SOCIAL INVITATION Subclass of licensee bc invitation does NOT render visitor an invitee for purposes of PL law. o Not tendered w/ any material benefit motive o Not extended to public genrally or to undef pop. INVITEES: Invitation determines status; possessor invites w/ the expectation of a MAT BEN from visit OR EXTENDS INVITE to the public generally. DUTY TO EXERCISE RC TO PROTECT THEM V KNOWN DANGERS & THOSE THAT COULD BE REVEALED BY INSP R2T S 342: So far as the condition of the prem is concerned, an occupier is subject to LIABILITY to INVITEES if the occupier: a. KNOWS or by the exercise of RC would discover the cond, and should realize realize that it involves an UNREAS RISK of harm to such invitees, AND b. Should EXPECT that they will NOT DISCOVER or REALIZE danger, or will FAIL to PROTECT themselves v it, AND c. FAILS to exercise RC to PROTECT them v the DANGER. Carter v. Kinney SC Miss 95 P attended a Bible study being hosted at Ds house. D had shoveled snow from driveway but NOT AWARE ice had formed. P slipped on patch of ice & broke his leg. NO social interactions outside church, solicitation, fin nor tangible benefits. TC sustained Ds MSJ P was a licensee and D had NO DUTY to a licensee w/ respect to a dangerous cond of which they had NO KNOW. SJ is APPROP if the Ds conduct conforms to the SOC Ps status imposes on them. NO MATERIAL BENEFIT for D P NOT INVITEE Ds did NOT open prem as to imply a warranty of safety HOLDING: As a MOL, P is a LICENSEE NO DUTY to PROTECT from UNKNOWN dangerous conditions. Ds entitled to SJ. AFFIRMED! Stitt v Holland Abundant Life Fellowship Mich 00 P (NON-MEM) attended bible study @ D church. P triped over concrete tire stop in parking lot; claimed lighting inadeq. HELD P is a LICENSEE. IMPOSITION of ADDL EXPENSE/EFFORT & REQ inspection must be DIRECTLY tied to owners COMMERCIAL BUSINESS INTERESTS

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JUSTIFICATION for IMPOSING HIGHER DUTY owners desire to foster a commercial advantage by inviting persons to visit the premises! HOLDING: Prospect of PECUNIARY GAIN sort of QPQ for HD impos.

ACTIVITIES o Tradlly, licensees/tresp could NOT recover for active neg while on premises. Britt v Allen County Comm Junior College Kan 82 P, a Shaklee sales rep, was using Ds auditorium solely to promote sales. She asked custodian to move a piano that tipped onto Ps foot. HELD P was a lic bc the entry was SOLELY for Shaklees benefit. P could NOT est willful/wanton injury. Ps CASE DISMISSED! Bowers Ottenad Kan 86 Social guest was burned during the prep of flaming Irish coffee. HELD that when a lic, whose presence is KNOWN or should be known, is injured/damaged by some AFFIRM ACTIVITY conducted upon the prop by the OCCUPIER of the prop the DUTY OWED to such person is one of RC under the circ. R2T S 341: Extends liability to licensees for failure to carry on activities with due care ONLY IF occupier should expect that the LIC will NOT DISCOVER/REALIZE danger, doesnt know of activities/risk involved. CHILD TRESPASSERS o Holland v Baltimore & O.R. Co DC 81 9 yr old boy injured by freight train. S 339 INAPPLICABLE bc moving train is an OBVIOUS DANGER to 9 yo. R2T S 339: A possessor of land is subject to liability for PH to children trespassing thereon caused by an ARTIFICIAL COND upon land if a. the PLACE where the COND exists is one upon which the POSS KNOWS or has reason to know that CHILDREN are LIKELY to TRESPASS, AND b. the COND is one of which the POSS KNOWS or has reason to know and which he realizes or should realize will involve an UNREAS RISK of DEATH/SER BOD HARM to such children, & c. the CHILDREN bc of their youth do NOT DISCOVER the COND or REALIZE the RISK involved in intermeddling w/ it or in coming w/in the area made dangerous by it, AND d. the UTILITY to the POSS of maintaining the COND and the BURDEN of ELIMINATING DANGER are SLIGHT as compared w the risk to children involved, AND e. POSS FAILS to exercise RC to ELIMINATE danger or otherwise PROTECT the children. RECREATIONAL USE OF LAND Statutes limiting liability of owners o WILLFUL MISCONDUCT generally REQ for LIABILITY o Heins v Webster County SC Neb 96 P visited D hospital (reason disputed). While exiting the hospital through the main entrance, P fell allegedly bc of the accumulation of ice/snow; injured his hip. P alleged neg due to fail to inspect/war, allowing ice/snow to accumulate & failing to

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remove it. TC Bench P is a licensee @ time of fall J4D. Denied merely bc of status. SC REV/REM. ISSUE: Whether the ct should ABOLISH the CL CLASS of LIC/INV and REQ a DRC to ALL NON-TRESSPASSERS? HOLDING: Distinction should be ABANDONED and NEW RULE APPLIED since litigants relied on previous law, new rule to APPLY to CASES ARISING AFTER HOLDING [this case being the exception] FAHRNBRUCHS DISSENT: Majority is forcing a landowner to treat a person who is allowed to enter or remain upon prem with the SAME SOC as a person who is invited onto the premises for the mutual benefit of both landowner and invitee. From now on, SPECIAL AWARENESS of unknown, uninvited individuals is NECESSARY! McCurry v YMCA Neb 81 an individual was injured due to a fall while playing bball on an outdoor asphalt playground owned by the YMCA. P was NOT a member & had NOT obtained perm to use the playground. HELD verdict in favor of YMCA. [Under majoritys opinion, the YMCA would be subj to liability which hold them to a duty to treat uninv users with same SOC!] POLICY REASONS FOR/AGAINST ABOLISHING CLASSIFICATIONS o AGAINST Value in predictability of CL predictable rules to det approp conduct & assess liability [Carter v Kinney] Stable/est. system of loss allocation would be replaced by system devoid of standards of liability Judicial grafting of exception Landowners would be less able to guard against risks (if abolished) o FOR An entrants status should NOT det the duty that the landowner owes Contrary to social mores Life is NOT LESS WORTHY depending on category/status Unjust in urban, industrial society Eliminate complex subclass Foreseeability should be the controlling factor o Presho v J.M McDonald Co Neb 67 Cust w/ permission of store mgr entered a back room in order to retrieve a small box & was injured. Invitee in the store; LIC in the room bc she was on an errand PERSONAL to HERSELF not in any way conn w the biz of D. o Rowland - ABOLISHED SEPARATE TREATMENT OF TRESPASSERS DRC was OWED to ALL INVITED PERSONS! o Koenig v Koenig Iowa 09 Adopted DUTY of RC to INVITEES/LICENSEES! o R3T ADOPTS DRC to ALL entrants EXCEPT flagrant trespassers! Louis v Louis Minn 01 D argued he owed P (his bro) NO DUTY when P was injured on a poo slide in Ds backyard during a family gathering. D argued no duty based on Harper v. Herman. HELD that in landowner cases P need NOT est a spec r/s.

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Duty based on spec r/s theory is SEP/DIST from duty based on landowner theory Galindo v Town of Clarkstown NY 04 D, Clark a prop owner, realized a recent storm had loosened roots of a giant tree that, although roots were on neighbors prop, threatened to fall. Trajectory unclear unsuccessful effort to get tree attended to. While running errands, tree fell on a parked car killing his housekeepers husband who was waiting to pick her up. HELD Clark owed NO DOC bc tree was NOT on his property. o RULE: A person who LACKS OWNERSHIP or CONTROL of prop CANNOT fairly be HELD accountable for injury resulting from haz on prop o KAYES DISSENT: Even if Clark had no power to touch the tree, a DUTY TO WARN of a known danger was easier to fulfill & wouldve been very helpful. Hazard to those on HIS prop regardless of the source. No duty to discover, but Clark was aware. The test is a REAS PERSON w/ info @ hand; RISKS GREAT ENOGUH TO LEAD A RP TO WARN EVEN IF CLARK DID NOT! LANDLORD TENANT o Sargent v Ross NH 73 INCREASING LIABILITY OF LANDLORDS Child visiting a tenant in Ds res bldg. fell from stairs & died; inadeq railing. A landlord is liable in tort ONLY IF INJURY is ATTRIBUTABLE to HIDDEN DANGER landlord AWARE but tenant is NOT Premises LEASED for PUBLIC USE Premises RETAINED under landlords CONTROL [comm stair] Premises NEG REPAIRED by landlord o Liability must less likely if landlord had promised to repair but failed to take any steps. o Putnam v Stout NY 76 IMPOSED DUTY WHERE PROMISE TO REPAIR HAD BEEN MADE! Lessor agreed, for a consideration, to keep prem in repair Promise INDUCED tenant to forego repair he otherwise might have made Landlord RETAINS a reversionary INTEREST in land; by K maybe regarded as retaining/assuming the RESP of KEEPING prem in SAFE conditions! o POLICY FACTORS TEN may be FIN UNABLE to make repairs TENs POSS is for a LIM TERM; incentive to repair is sig less In return for his PECUNIARY BENEFIT, LANDLORD prop expected to ASSUME obligation w respect to safety to others. o Childs v Purll DC 05 DC ordinance req lead-free apts when minors are occupants. VIOLATED D NEG per se, unless he showed he did everything a reas prudent person would have done to comply with the Act. CRIMINAL ACTIVITY o Kline v 1500 Mass. Ave Apt Corp DC 70 Court IMPOSED DOC on landlord toward a tenant who had been assaulted in common hallway in bldg o

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Landlord had power to take protective steps that tenants could NOT Landlord BEST EQUIP to guard v pred risk of intruders/take prot measure Landlord is NOT an insurer of safety, but must take measures of prot which are W/IN HIS POWER/CAPACITY & reas expected to mit risk! Expenditure of large sums passed on to tenants in form on INC RENT! Landlord OBLIGATED TO PROTECT part of his prem which arent usually subject to periodic patrol and inspection by the municipal police! FOUR APPROACHES TO DETERMINING FORESEEABILITY: 1. SPECIFIC HARM RULE: [OUTDATED] Landowners owe NO DUTY UNLESS he/they are AWARE of SPEC, IMMINENT harm 2. SIMILAR INCIDENTS TEST: Foreseeability is est by EVIDENCE of PREV CRIMES on or near the prem. [past put owners on notice of risk] CONSIDER: nature/extent of previous crimes, recency, frequency, similarity to THIS crime 3. TOTALITY OF CIRC: [MOST COMMON] takes addl facts into cons such as nature, condition, loc of land as well as any other relevant factual circ bearing on foreseeability LACK of prior sim incidents will NOT preclude claim that landowner knew or shouldve known crim act was foreseeable. Property crimes/minor offenses are PRECURSORS to MORE VIOLENT crimes! Places GREATER DUTY on landlord. TOO BROAD?! 4. BALANCING TEST: Seeks to address interests of both parties (business proprietors/clients) by BAL the FORESEEABILITY of harm AGAINST BURDEN of imposing a duty to protect against the crim acts of 3rd persons. [ONLY CALI/TENNESEE HAVE ADOPTED IT!] HIGH DEG OF FORESEEABILITY NECESSARY to impose duty RARELY PROVEN in ABSENCE of prior sim incidents Posecai v WalMart Stores Inc SC Louisiana 99 P robbed @ gunpt in park lot. A man was hiding under her car. Perp was never apprehended and P never recovered her jewelry despite searching several pawn shops. Security Guard INSIDE but not outside. TC bench trial D OWED DUTY to provide security in park lot bc robbery of P was FORESEEABLE & couldve been prevented! COA AFF but mod allocation of damages; SC ADOPTS BAL TEST; foreseeability of harm + gravity of risk det the existence/extent of Ds duty D did NOT possess req degree of foreseeability for imposition of duty to provide security ISSUE: Whether Sams Club OWED a DUTY to protect P from the crim acts of 3rd parties under facts/circumstances of this case? Business owners have a DUTY to IMPLEMENT reasonable MEASURES to protect patrons acts when they are FORESEEABLE. NO GEN DUTY ARISES ONLY WHEN FORESEEABLE HIGH DEGREE OF FORESEEABILITY SECURITY GUARDS LOWER DEGREE LESSER SECURITY MEASURES

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Surveillance cameras, improve lighting/fencing, trimming shubs Ps burden to establish duty owed by P; FOR/GRAV det CASE by CASE! SC REJECTS LCs conc that D assumed duty to protect when hiring guard JOHNSON CONCURS: Totality of circ is best suited for resolving issue for it requires that reas measures be taken to prevent foreseeable crim acts RESISTING THE ROBBERY AND APPREHENDING PERPS o KFC v Superior Ct Cal 97 D rest cashier did not comply immed w robbers demands. In DENYING SJ, LC stressed it was FORESEEABLE that if the cashier did NOT comply, the robber would hurt the patron and this CREATED DUTY TO COMPLY. On APPEAL, CT REVERSED DENIAL OF SJ. Compliance NOT REQ bc other provisions of state law, inc statute that recognized the RIGHT TO DEFEND PROP W/ REAS FORCE. Robbers are unpredictable Duty to comply would simply encourage hostage-taking w/o assured ben. DISSENTERS: proprietors response to the attack is a JURY Q due to: Variety of circumstances Successive juries may asses what precautions are reasonable Jurors bring a WIDER array of practical experience/know to task

E. A REPRISE ON DUTY A.W. v Lancaster County School Dist SC Neb 10 Kindgergarten student was sexually assaulted in a school restroom during school. P alleges Ds neg perm assault. DC SJ for D assault not foreseeable. o ISSUE: Whether D had a LEGAL DUTY to C.B. to PROTECT him from assault o HOLDING: Questions of foreseeability are MOF, not mol, and that there is a GENUINE ISSUE of MATERIAL FACT regarding whether Ds conduct met its duty of RC. REVERSED/REMANDED merit & deserves full trial to resolve It is for the FACT-FINDER to DET whether on the FACTS OF EACH INDIVIDUAL CASE the evidence EST a BREACH of that duty! R3T: [MOL in prev cases] FORESEEABILITY is DEPENDENT on FACTS of EACH CASE QUESTION OF FACT! Leave to trier of fact UNLESS no reasonable person could differ on the matter Foreseeability determinations are fact-specific; involves common sense, common experience province of the fact-finder DUTY to PROTECT against FORESEEABLE acts even if the attack in THAT case NOT been foreseeable.

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IV. Non-Physical Injuries a. Emotional Harm [p. 260-298] Middle of 20th century, Cts began to protect Ps from intentional, extreme & outrageous conduct that produced only this type of harm. A. EMOTIONAL HARM Impact Rule o Falzone v Busch SC NJ 65 P was standing in a field adjacent to roadway when he was struck/injured by Ds neg driven automobile. P, Falzones wife, was seated in his lawfully parked car close to the place where he husband was struck & D CAME SO CLOSE AT TO PUT HER IN FEAR FOR HER SAFETY; she became sick and req med attn.. HELD where neg causes fright from a reas fear of immediate PI, which fright is adeq demonstrated to have resulted in substantial BI/sickness, the injured person MAY RECOVER IF such BI/sickness would be regarded as PROPER elements of damage had they occurred as consequences of direct PI. Where fright does NOT cause BI/sickness too lacking in seriousness Issue Whether the P may recover for BI/sickness resulting from FEAR for her safety caused by a neg. D, where the P was PLACED in DANGER by such neg. although NO PHYSICAL HARM TC SJ4D on 2nd count must follow NJ rule that where there is no physical impact upon P, there can be NO RECOVERY for the BI/sickness resulting from neg induced fright. Ward v W Jersey & Seashore RR Co physical impact upon P is NECESSARY to sustain a neg action. 3 REASONS for DENYING RECOVERY: a. PI was NOT the NATURAL/PROX RESULT of the neg act (assuming person is of avg strength both of body/mind) b. FIRST action of its kind in NJ consensus must be that NO LIABILITY EXISTS in ABSENCE of IMPACT. A person whose acts cause FRIGHT ALONE could NOT REAS FORESEE PH c. PUBLIC POLICY preventing flood of litigation in cases where the injury complained of may be EASILY FEIGNED w/o detection and where damages may rest upon mere conjecture/speculation. NO LONGER TENABLE ACCORDING TO FALZONE: Issue properly determinable by medical evidence Common law wouldve been atrophied long ago if it had continued to deny relief based on first impression cases Difficulties in det/tracing a causal connection from neg to injury is NOT peculiar to cases w/o impact and occurs in all types of PI litigation LOOK AT contemplating sophistication of med prof and ability to WEED OUT DISHONEST claims Difficulty of proof SHOULD NOT BAR P from opportunity to convince TOF of truth of claim. Fear of an expansion of litigation should NOT deter courts from granting relief in merit claims.

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Appropriate that the TJ charge the jury that an UNDUE DELAY in notifying the D of the incident/resulting injury may weigh heavily in determining the truth of the Ps claim. Ps should be given the opportunity to SUBMIT PROOF that Mrs. Falzone suffered subs BI/sickness & that it was the PROX RESULT of Ds neg The distinction between BI/sickness/ED is uncertain and courts have extended the former category so as to GRANT RECOVERY for SERIOUS MD that is ACCOMPANIED by physical symptoms. EX: a definite nervous disorder is a PHYSICAL INJURY SUFFICIENT to support an action for damage for neg. RARE INSISTENCE ON IMPACT o R.J v Humana of FL 95 Ps ED suffered MUST FLOW from PI that P sustained in an impact. CAR CRASHES V AIRPLANE CRASHES o Wooden v Raveling Cal 98 Court ALLOWED RECOVERY for Ps ED when Ds neg driven car came up unto her prop and NEARLY hit her. REJECTED PREC o Lawson v Management Activities, Inc. 99 Ps, employee of a Honda dealership who feared that a falling plane would crash into them. Ct DECLINED to follow Wooden FEAR existed for a BRIEF MOMENT! Cali REJECTED indep tort of neg infliction of ED o PUBLIC POLICY CONCERN: PSYCH symptoms are much more SUSCEPTIBLE to being FAKED than more palpable effects. NOTHING to be GAINED by EXTENDING LIABILITY attendant upon air crashes to the ED of ground spectators. Burden on D UNPREDICTABILITY of ED damages could ADD sig to the COST of INSURING AIR TRANS o Eggshell P: One who suffers from an abnormally sensitive phys condition such as hemophilia/brittle bones. [Eggshell psyche?] AIRPLANE PASSENGERS o Quill v. Transworld Airlines Min 85 Airplane plunged in uncontrollable tailspin before pilots regained control. Ps claim for NEG INFLICTION OF ED grounded on SEVERE ANXIETY experienced whenever he took a flight after accident. HELD unusually disturbing experience + physical symptoms = REAL CLAIM ED of victims who realize they are doomed o Survival statutes: generally permit the decedents estate to proceed with any claims that the decedent might have brought but for the death. EX: Lost income/med expense from the injury to the death, accompanying P/S o Most courts have ALLOWED recovery where P was AWARE of impending death or injury even if the period of awareness was very short Shatkin v. McDonnell Douglas 84 INSUFF EVIDENCE to show P on right side of plane was EVEN AWARE of impending disaster until just before the crash Shu-Tao Lin v. McDonnell Douglas 84 UPHELD judgment where jury might reas have found that P SAW the left engine and a portion of the wing break away at the beg of the flight.

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Beynon v. Montgomery Lim P/S Md 98 Had the decedent survived, he wouldve had an action under state law. Illogical to deny the item where the feared harm came to pass. [pre-impact fright -71.5 ft of skid marks!] The decedent was AWARE of the IMPENDING PERIL DISSENT rank speculation to conclude that dec was consciously thinking about anything other than stopping his vehcle or that it was anything other than an INSTICTIVE REACTION directed entirely @ SELF-PRESERVATION req little/no ideation. o SOME STATES BAR RECOVERY FOR INTANGIBLE DAMAGES IF VIC ISNT ALIVE @ TIME OF FINAL JUDGMENT [CALI] Metro North Commuter RR Co. v. Buckley USSC 97 [WHY SC? bc RR Co. under FELA] P sued under FELA, a statute that permits a RR worker to recover for an injury resulting from his employers neg. P sought damages for ED & future med checkups. DC DISMISSED action bc P didnt provide suff evidence showing he suffered ED. NO PHYS IMPACT outside FELAs scope. COA REVERSED bc it found certain obj corroborating evidence. HELD CANNOT RECOVER unless, and until, he suffers from a diseases or MANIFESTS symptom of a disease. [REV/REM for recovery of medical monitoring costs] o Issue 1: Whether a RR worker neg exposed to a carcinogen (ssbestos), W/O SYMPTOMS of any kind, can recover under Fed Emp Liability Act (FELA), for NEG INFLICTED ED? o Issue 2: Does phys contact w/ insulation dust amt to phys impact as in Gottshall? Gottshall UNLIM/UNPRED LIABILITY PROBLEM!!! Interpreted FELA liberally in light of its human. Purposes Noted LIABILITY RESTS UPON NEG and that the act does NOT make that RR Co. the insurer for all emp injuries Common law principles, where not rejected, play a sig role in determining whether, or when, an employee can recover for damages for neg infliction of ED Common law of torts does NOT permit recovery for neg inflicted ED unless distress falls w/I certain spec categories that amt to RECOVERY PERMITTING EXC: Where ED accompanies a PI Distress suffered by close relative witnessing the PI of a neg victim Under Gottshall, physical IMPACT DOES NOT encompass every form of physical conduct EXPOSURE ALONE WONT SUFFICE! Common law precedent doesnt permit recovery for those Ps who are disease/symptom-free. RESTRICTING RECOVERY DUE TO: o Special DIFFICULTY for judges/juries in SEP valid, important CLAIMS from those are invalid/trivial o THREAT of UNLIM/UNPRED liability o The POTENTIAL for a FLOOD of comparatively unimportant or TRIVIAL claims FELA PERMITS RECOVERY where P satisfies the common laws ZONE OF DANGER TEST: P sustains a phys impact as a result of a Ds neg conduct, or are placed in immediate risk of phys harm by that conduct. o

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PHYSICAL IMPACT TEST: Simple phys contact w/ substance that might cause a disease @ a future time so long as the contact was a kind that would cause FEAR in a REASONABLE person OR actual physical impact or immediate risk. EX: Car accident, gas explosion, train striking a car, clothing caught in escalator, choking victim, intruder assaulting Ps sig other. o GINSBURGS DISSENT: Buckleys extensive contact with asbestos constituted phys impact as that term was used in Gottshall. CONCURS in the Cts judgment w/ respect to Buckleys ED claims he didnt present objective evidence of severe ED, sought no prof help to ease his distress and presented no med testimony concerning his mental health. ED claims fails as MOL. [NOT GENUINE/SEVERE ED] o Norfolk & Eastern Railway v. Ayers U.S. 03 workers suffering from asbestosis, a non-malignant respiratory disease, asserted FELA claims for ED @ prospect that they might contract cancer in the future. MAJORITY PERMITTED RECOVERY for ED if Ps PROVED it was GENUINE and SERIOUS! DISSENT: Emo harm NOT A RESULT of their PHYS HARM but caused by the PROSPECT of future disease NOT SUFF related to asbestosis to permit recovery. SERIOUS FEAR REQ o Potter v. Firestone Tire & Rubber Co. Ds dumping of toxic wastes into a landfill near its plant site exposed Ps to carcinogens over a prolonged period. None suffered from any current condition, just enhanced but UNQUANT RISK. HELD in absence of a PRESENT PI/illness, damages for fear of cancer may be RECOVERED ONLY IF P pleads/proves that: As a result of the Ds neg BOD owed to P, the P is exposed to a toxic sub which threatens cancer AND Ps fear stems from knowledge corroborated by reliable med/scientific opinion that is MORE LIKELY THAN NOT that the P will develop the cancer in the future due to the toxic exp. P must show a SERIOUS FEAR that EXP was of SUCH MAGNITUDE/PROP as to likely result in fear cancer. EXCEPTION: If P can show OPPRESSION/MALICE/FRAUD Ps fear as serious/genuine/reas would SUFFICE! HIV Cases o Courts have tended to require the P to show that the needle in question actually contained the virus. o Most have adopted an actual ZOD analysis that required that the needle be shown to have been infected. o Fear tested by obj/subj standards: OBJ criteria REQ due to concern about a flood of litigation resulting from AIDS paranoia. o Williamson v. Waldman NJ 97 P, trash collector, was tuck by a used needle that D physicians had neg discarded. HELD P ENTITLED TO RECOVER damages for serious/genuine by a reas person of ordinary exp who has a level of knowledge that coincides w/ the then-current, accurate, and generally available pub info about causes/transmission of AIDS. What reas well-informed citizens might fear [use tort law to reduc ignorance about AIDS not accept comm awareness level]

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Concerned about promoting AIDS paranoia but REFUSED TO REQ AN ACTUAL ZOD TEST! Following an actual ZOD would DENY REALITY of distress caused by neg w/o increasing citizen awareness.

Windows o A few courts in HIV cases ALLOW RECOVERY for the window between the event that creates the concern and the results of tests show that infection did NOT occur. Chizmar v. Mackie Alaska 95 P alleged that D physician incorrectly/ng informed her that she was HIV + and at this news had caused severe ED. Ct UPHELD action in this situation harm may well last past the date on which she learns that she is neg. Jones v. Howard Univ DC 91 UPHOLDING a mothers claim for the mental distress she suffered as a result of Ds hospitals neg in giving her an X-ray exam while prego. [ED due to possibility that radiation harmed her unborn twins] Harris v Kissling Oreg 86 UPHOLDING mothers verdict for ED suffered during pregnancy as a result of hospitals neg failure to conduct Rh blood tests. Gammon Osteopathic Hospital of Maine, Inc. Maine 87 Ps father, Linwood, died in D hospital. P asked D funeral home to make arrangements; Ds neg conducted ops and he didnt receive a bag of personal effects. P began having nightmares for the first time, his personality was affected and r/s w/ wife/kids deteriorated. He sought NO MED/PSYCH attn. and offered NO MED EVIDENCE @ TRIAL. Ct granted a DV on Count 1 Ps neg claim for severe ED. HELD in this case, these arbitrary req should NOT BAR Ps claim for comp for SED. No basis to preclude comp. TC erred; vacate judgment in favor of D. [REM] o Issue Whether in these circ, Gammon had est a claim, in tort, for neg infliction of SED. o Hospitals r/s to fam of deceased gives RISE TO A DUTY to avoid emo harm from handling of remains. o Jury charged w/ severe ED is such that NO REAS MAN should be expected to endure it! o Persons psychic well-being is as much entitled to legal protection as is his physical well-being. o COMPENSATE WHEN: ED is INTENTIONALLY/RECKLESSLY inflicted ED RESULTS from PI neg inflicted Neg inflicted ED RESULTS in PI o ED W/O PI usually requires a showing of: Physical impact Objective manifestation Underlying/accompanying tort Special circumstances o Reviewed 8 ED cases [not wrongfully decided though] Developing trend in case law encouraged ct to abandon artificial devices in this and future tort actions and to rely upon trail process for protection against fraudulent claims. Foreseeability principle provides adequate protection v unduly burdensome claims.

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D is BOUND to FORESEE PSYCHIC HARM only when such harm REAS could be EXPECTED to befall ORD SENSITIVE PERSON. o Serious MD: Where a reas person, normally constituted, would be unable to adequately cope w/ the mental stress engendered by the circ of the event. Culbert o Rationale: Exceptional VULNERABILITY of the family of recent decedents makes it HIGLY PROB that ED will RESULT from mishandling the body ED FORESEEABLE Evidence would support a jury finding that either or both Ds FAILED TO EXERCISE RC to prevent such an occurrence. Dobran v. Franciscan Med Center Ohio 04 P had cancer. Tissue removed thawed; no possibility to retest for diagnosis if cells had metastasized. P sued for LINGERING FEAR of METASTASIS. Ct REJECTED P NOT in actual phys peril by Ds action o Baker v. Dorfman NY 00 - NY law permits ED action by person who, due to neg, had been incorrectly informed that he had tested + for HIV. Johnson v. State NY 75 Woman able to recover after receiving a telegram incorrectly telling her that her mom had died. Bryan R. Watchtower Bible & Tract Society of NY Inc. Maine 99 P sued church for abuse alleged to have been inflicted by an adult member of the church. P claimed D had an AFF DUTY TO PROTECT MEMBERS of the church from sex abuse when D was AWARE OF PRIOR INCIDENTS. HELD Only where a particular duty based upon a UNIQUE R/S has been est may a D be held responsible, absent some other wrongdoing, for harming the emo well-being of another. o COURT DENIED CLAIM ON PURE FORESEEABILITY! EX OF SERIOUS ED NEUROSES/PSYCHOSES/CHRONIC DEP/PHOBIA SHOCK o Some juris have req claims of ED to be MED DIAGNOSABLE/OBJECTIFIABLE o Existence of required distress was a matter of proof for the TOF Sullivan v. Boston Gas Co. Mass 93 Ps stood across the street as their house burned to the ground. REJECTED LINE BETWEEN PHYS/MENTAL HARM Attempt to STRIKE a BALANCE btwn desire to ferret out fraud claims and cts duty to grand deserving Ps a chance to present their case to a fact finder. o R2T 346: repeated hysterical attacks are illnesses sufficient to corroborate existence of claimed distress; headaches/nausea could qualify if they lasted for a sub period of time. Transient symptoms such as VOMITTING DO NOT COUNT! Portee v. Jaffee NJ 80 TC P and son lived in Ds bldg.. Son became trapped in bldgs elevator btwn outer door and wall of elevator shaft. Boy dragged up to 3rd floor. He died while trapped. Ps claim for psych injury did NOT MEET REQ of Falzone since P had concededly NOT BEEN SUBJ to any risk of PH caused by Ds neg. HELD COA approved for neg infliction of ED req PROOF of the following elements: [REV] 1. DEATH/SERIOUS PI of another caused by Ds neg 2. MARITAL/INTIMATE FAMILIAL r/s btwn P and injured person 3. OBSERVANCE of death/injury @ scene of accident 4. RESULTING SEVERE EMOL HARM o Ds DUTY of RC to AVOID PH EXTENDS to the avoidance of THIS type of M/ED. o Issue: Whether parent can recover damages for the emo anguish of watching her young child suffer and die in an accident caused by Ds neg. o In Falzone, ct IMPOSED liability for such infliction of M/ED when neg created the POTENTIAL, but not the occurrence, for physical harm to traumatic indiv.

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LIABILITY where there is no potential for PI, but distress resulted from perceiving the neg inflicted injuries of another. o Closer physical proximity > probability/likelihood (foreseeable) that P will suffer ED from physical harm to another o LIMITS OF LIABILITY analysis of the SPECIFIC EMOL INTEREST INJURED PARENTAL LOVE! Dillon v. Legg Cal 68 Cali SC identified 3 factors which would DET whether an ED injury would be compensable bc foreseeable: [STRONG CASE FOR NEG LIAB] 1. Whether P was located NEAR the SCENE of the ACCIDENT as contrasted w/ one who was a distance away from it. PHYS PROX may be of some relevance in demonstrating the closeness of the EMOL BOND btwn P & injured family member Prox to accident INCREASES LIKELIHOOD that he will WITNESS event RISK of EI exists by virtue of Ps PERCEPTION not proximity 2. Whether SHOCK resulted from DIRECT EMOTIONAL IMPACT upon P from the sensory/contemporaneous OBSERVANCE of the accident as contrasted w/ learning of the accident from others after its occurrence To deny recovery solely bc P was not subj to risk of phys harm would IMPOSE ARBITRARY BARRIER that bear NO RELATION to the INJURY to his basic emotional stability Limiting to neg conduct which strikes @ Ps basic emol security Death threatens ones emo welfare but w/o such perception, the threat of emol injury is lessened & justification for liability is fatally weakened. OBSERVING is an ESSENTIAL element of a COA for neg inflic of ED. 3. Whether P and the victim were CLOSELY RELATED, as contrasted w/ an absence of any r/s or the presence of only a distant r/s [MOST CRUCIAL!] The existence of a MARITAL/INTIMATE FAMILIAL r/s is therefore an ESSENTIAL element of a COA for neg infliction of ED [mom/son = SUFF INTIMATE BOND on which to predicate liability!] ***ADDL FACTOR in PORTER SEVERITY of the PI causing ED. Accidental death PERMIT RECOVERY Less serious injury is NOT sufficient to result in liability. Scherr v. Hilton Hotels Corp. Cali 85 P wife saw TV coverage of a fire then taking ple in Cali @ the Las Vegas Hilton Hotel. She knew her husband was attending a mtg @ that hotel and that he was supposed to be in the hotel @ that time. She DID NOT SEE HIM in the camera & did NOT discover until later that he had in fact been hurt in the fire. HELD P failed to come w/in the sensory perception req. Stress hadnt ripened io disabling shock. Barnhill v. Davis Iowa 81 P & his mom were driving one behind the other to the same destination. P saw in his rearview mirror that his moms car had been hit on drivers side by Ds carp alleged SERIOUS EMOL/PH from his CONCERN. HELD - Court said proper test was whether a REAS PERSON WOULD BELIEVE, & P did believe, that his mom was seriously injured in type of accident that occurred. Barnes v. Geiger Mass 83 Mom who reas but MISTAKENLY thought that her child had been horribly injured in an accident that she had witnessed. Vic was an UNRELATED CHILD. Mom died next day from trauma alleged to have resulted from exp. HELD RECOVERY DENIED unwilling to expand liability; unreas expands the class of persons to whom a tortfeasor may be liable. Ochoa v. Superior Court Cali 85 Mom watched child in juvenile hall deteriorate from apparently serious illness when med staff would NOT respond to emergency; HE DIED AFTER SHE LEFT. HELD UPHELD claim despite no contemporaneous observance of an accident as per the Dillon factors. o

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Thing v. La Chusa Cal 89 Mother, who was nearby, NEITHER HEARD nor SAW accident injuring her child, but was told about it & rushed to the scene to see the childs bloody and unconscious body lying in the roadway. HELD Ct DENIED recovery concluding the 3 Dillon factors were defining elements & not simply guidelines. o Absent EXCEPTIONAL circ, recovery should be LIMITED to relatives Residing in the SAME HOUSEHOLD, or parents, siblings, children, grandchildren of the victim VIEWING of CONSEQUENCES of an accident was INSUFFICIENT REQUISITE DISTRESS as a reaction BEYOND that which would be anticipated in a disinterested witness and which is NOT an ABNORMAL response to the circumstances. Tobin v. Grossman NY 69 REJECTED Dillon v. Porter concluding that it would be difficult, if not impossible, to draw lines limiting the action. NO RECOVERY FOR ED PERMITTED! o Mitigates poss of unlim recovery by rest liability in a much narrower fashion than the Dill nrule. o ED must be SERIOUS/VERIFIABLE! Bovsun v. Snperi NY 84 OVERRULED Tobin v. Grossmans total refusal to allow an action d EXTENDED a duty to members of immed fam who were themselves in the zone of phys danger. Marzolf v. Stone Wash 98 close relatives came by scene of the accident shortly after it happened. HELD claims should be UPHELD if the distress is caused by observing an injured relative @ the scene of an accident SHORTLY after its occurrence and BEFORE there is substantial change in relatives loc/condition. Wages v. First Natl Ins Co of America Mont 03 Parent NOT PRESENT & didnt witness accident may nevertheless RECOVER for ED provided courts find parent as a FORESEEABLE P. Child Sexual Abuse 1. Doe Parents No 1 v St DOE Haw 02 HELD P parents of children who had been fondled and otherwise molested by school teacher MAY RECOVER for ED W/O PROOF that their children had suffered physical injuries. Ct found circ sufficient to assure ED was GENUINE/SEVERE. Unmarried Couples & ED: 2. Elden v. Sheldon Cal 88 Ct, relying on 3 POLICY REASONS, DENIED claims for ED: a. State has STRONG INTEREST in promoting marriage; right/resp not shared by those simply cohab b. Acceptance would imposed a diff burden on the cts req inquiry into whether the r/s was stable/sig and matters such as sexual fidelity c. Need to LIMIT the # person to whom a neg D OWES a duty of care. d. DISSENT Precluding gay/lesbian Ps from stating a Dillon cause of action based on injury of his/her partner. States interests NOT ADVANCED by precluding recovery to those cant choose marriage! 3. R3T 48 Cts should take into acct changing practices/social norms and employ a functional approach to determine what constitutes a FAMILY. 4. Dunphy v Gregor NJ 94 REJECTED Elden v. Sheldon. Claim by a woman who witnessed the death of her fiance. HELD after reviewing Porter v. Jaffee and its progeny at length, ct was convinced that the solution was to judge nature and extent of harm by inquiring into a. Duration of r/s b. Degree of mutual dependency c. Extent of common contributions to a life together

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d. Extent/quality of shared experiences e. Whether P/injured person were members of same household f. *ALSO in case of married couples/loss of consortium cases to assess harm done to r/s! Johnson v. Jamaica Hospital NY 84 Ps daughter, Kawana, born in D hospital went missing. She was recovered after 4 months. Suit on Ks behalf. TC Denied Ds MTD the parents action for failure to state COA. AD AFFIRMED COA REVERSED No COA stated/Ps MAY NOT RECOVER any MD/ED they may have suffered Ps have stated NO BASIS for recovering under standard set forth in Bovsun have NOT alleged they were w/I ZOD and that their injuries resulting from observation of serious PI caused by Ds negligence. NO BASIS FOR EST DIRECT DUTY TO PARENT! Even if neg in caring for K, D is NOT LIABLE for ED suffered by parents due to abduction. ABSENCE OF DUTY NO LIABILITY as MOL DISSENT liability here can be circumscribed by limiting any duty owed to those parents whose custodial rights have been interfered w/ bc this was NOT A COMMON OCCURRENCE. [But then this right to recover could not be refused to other parents, relatives, custodians, etc.] Kalina v. General Hospital NY 63 Ct REFUSED to recognize such a duty on part of a hosp to parents of hosp kids. Ps sought recover for mental pain and suff caused by a/b of their son (circ on 4th day) Ct GRANTED Ds MTD Parents were INTERESTED BYSTANDERS to whom NO DIRECT DUTY WAS OWED! PUBLIC POLICY CONCERN Permitting recovery would be to invite openended liability for indep EI. EXCEPTIONAL CIRCUMSTANCES: i. Johnson v. St of NY D hospital neg sent a telegram to P notifying her of her moms death when she hadnt died. ii. Lando v. St of NY D hosp neg failed to locate a deceased patients body for 11 days. When found, it was in adv state of decomp! g. SPECIAL CASE of ED suffered mother resulting from harm to her child during labor/delivery 1. NOT a DV/BYSTANDER 2. Mom has action whether conscious or not 3. Carey v. Lovett NJ 93 Dad prob under bystander approach 4. Broadnax v Gonzalez NY 04 mother could RECOVER for ED due MED MAL resulting in miscarriage or stillbirth of her fetus. Dr owes duty both fetus/mom 5. Sheppard-Mobley v. King NY 05 D neg performed a chemical abortion which caused a child to be born with a birth defect. Moms claim for ED was REJECTED. Broadnax distinguished as NARROW HOLDING! 6. Larsen v. Banner Health System Wyo 03 D hospital switched babies and P, mom/daughter separated for 43 yrs. HELD ct allowed RECOVERY in this case; in the limited circ where a continuing r/s exists for services that carry with them DEEPLY EMO RESPONSES in the event of breach 7. Higgins v. Longs Drug Stores Cali Inc. 93 P parents followed an incorrect label and gave infant an excessive dose of med. (child not perm injured) Parents claim v.

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pharmacist REJECTED. Prescription NOT for Ps CANNOT RECOVER as DV of Ds neg! a. DISSENT DV as nec parties to admin guilt parties feel as inst of harm renders them DVs! 8. Jarrett v. Jones MO 08 P suff minor PI in car accident resulting from Ds neg. Tried to recover for seeing Ds 2 yr old dead. DV cannot apply. RESTRICTING rules on bystander recover. DVs in car accident are a LIMITED CLASS! b. Damage to Property 1. Lubner v. City of LA Cal 96 P artists sued for prop damage & ED when the citys trash truck crashed into their house damaging it, cars and artwork. Ct DENIED recovery for ED refusing categorically to allow rec for ED cause by loss of property. a. PUBLIC POLICY CONCERN imposing incremental liability for these damages addl taxes to citizens 2. Rodriguez v. State Haw 70 Due to states neg, water flooded the house Ps built w/ their own hands.In addition to prop damage, ALLOWED rec for ED upon showing that a reas man normally constituted, would be unable adeq to cope w/ the mental stress engendered by circ of the case. MOST STATES DENY THOUGH! c. Pets 1. Campbell v. Animal Quar Station Haw 81 Ps learned over the phone that their dog had died bc of neg of D. Recovery for all 5 Ps UPHELD after a finding that they had each suffered SEVERE ED. 2. Roman v. Carroll Ariz 80 P alleged that she sustained ED from watching Ds St. Bernard dismember Ps poodle. Ct REJECTED bystander analysis bc dog is personal property & ED from witnessing injury to prop could NOT give rise to action! 3. Several state have enacted statutes reversing CL antipathy to owners recovering for distress resulting from abuse or neg of their pets. d. Negligent Interference with Consortium 1. Loss of consortium deprivation of wifes services conceived to be owed by the wife to the husband. Later, grounds included loss of the society of the wife and impairment of the r/s with her as a sexual partner. VALUATION PROBLEM marital interest is quite recog and its impairment may be definite, serious and enduring more so than p/s and ED awarded in tort actions 2. Ossenfort v. Assoc Milk Producers, Inc. Minn 77 Ct UPHELD award for 34 yr old husbands severe brain damage; rendered spastic quadrip. Proof of harmony/happ 3. Spaur v. Owens Corning Fiberglass Corp. Iowa 94 UPHOLDING award for lose past/future consortium where the couple had been married for 34 years. 4. Barnes v. Outlaw Ariz 98 D minister revealed to others info he had learned about P during confidential counseling sessions. HELD damages for LOC are NOT BARRED solely bc spouses injury is purely emotional. Ct would rely on the fact-finder to determine: a. Legitimacy b. Nature of alleged damage c. Extent of alleged damage o Clearly a marriage may be damaged by emo trauma

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LOC no longer based on deprivation of service theory no reason to require PI in one spouse before the other brings a claim o Matter for JURY to decide whether MARITAL r/s has been HARMED ENOUGH to warrant dam e. Loss of Companionship involving Parent/Child 1. Roberts v. Williamson Tex 03 Ct REJECTED a coa for parents for the lost consortium of their injured but not dead child. a. SIBLINGS also BARRED from suing for loss of cons. b. DISSENT No good reason to dist the death of a child (from which LOC was available) from injury. 2. Borer v. American Airlines, Inc. Cali 77 Ct REFUSED to allow a suit for benefit of 9 young children whose mother had been injured to such an extent that she was unable to provide the usual parental care. Fin aspect recoverable in moms action. Mom could recover emo aspects of loss of ability to care for her 9 children if conscious of loss. a. Ct took into account: i. Inadequacy of monetary compensation ii. Difference of measuring damages iii. Danger of imposing extended/disprop liability 3. Ferriter v. Daniel OConnells Sons, Inc. Mass 80 Children of a paralyzed accident vic asserted a claim for loss of parental consortium. HELD children have a viable claim for loss of parental society if they can show that they are MINORS DEPENDENT on the PARENT for ECON/FILLIAL needs of closeness, guidance, nurture, etc. f. Derivative Claims 1. Jacoby v. Brinckerhoff Conn 99 P husband sought to sue D psychiatrist for treatment of Ps wife that hurt the marriage and caused his child lose material care. HELD LOC DER CLAIM could ONLY succeed if the DVs claim succeeded. 2. J.A.H. v Wadle & Assoc., P.C. Iowa 99 Minor child, through dad, sought damages against mental health care provider for loss of his mothers company by causing her to develop false memories. Patient objected to suit Ct REJECTED DUTY TO NONPARTY; however, provider has a DUTY to protect an identifiable potl victim from a dangerous patient. b. Economic Harm [p. 298-319] P exposed to risk of econ harm ONLY a. EX: Creditor who makes a loan in reliance on neg prepared fin statements or a beneficiary who fails to get an inheritance bc of defectively drawn will. b. NOT protected as extensively as PH/property damage. c. Issue Whether to impose duties of DC when acquiring and communicating info. d. Nycal Corp. v. KPMG Peat Marwick LLP Mass 98 P, allegedly in reliance on an auditors report of Gulf prepared by D, entered into a stock purchase agreement with controlling shareholders. Five months later, Gulf filed for bankruptcy rendering investment worthless. P seeking damages and costs incurred as a result of its alleged reliance on auditors report. D UNAWARE of sale until right before closing. SJ for D. HELD D did NOT breach any legal duty owed to the P. Correctly concluded under 552 that the undisp facts failed to show D knew or intended that P, or any lim group of which P was a member, would rely on the audit report in connection with an investment in Gulf. 1. Three TESTS to determine the DOC owed by accountants to nonclients: o

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a. FORESEEABILITY: liable to ANY person reas forseeable would obtain/rely on fin statement inc known & unknown individuals [gen disfavored] i. Tort law part UNSUITABLE for app to accts where regardless of the efforts of the auditor the CLIENT RETAINS EFFECTIVE PRIMARY CONTROL OF THE FIN REP PROCESS. ii. Billy v Arthur Young & Co. Cal 92 Auditor prepared from paperwork received from client. Once client is HANDED the report, it is in CONTROL of its DISSEMINATION. Liable to indeterminate #/time/class. iii. Mass law does NOT protect every foreseeable user of an inaccurate audit report. b. NEAR PRIVITY TEST i. THREE ELEMENTS: 1. RELIANCE by the 3rd party 2. KNOWLEDGE that party intended to rely 3. CONDITION by acct providing a DIRECT LINKAGE to the 3rd party ii. Originated by Cardozo in Ultramares Corp v. Touche NY 31, limits an accts liability exposure to those w/ whom the acct is in privity or in a R/S SUFF APPROACHING PRIVITY. 1. LIABLE to non-k 3rd parties who rely to their detriment on an inaccurate fin report if acct is AWARE that report was to be used for the purpose in the furtherance of which a known party was intended to rely and if there was some condition on the part of acct creating link to that party, which evinces the accts understanding of partys reliance c. TEST IN 552 R2T [p. 301] i. Req that P be a MEMBER of a LIM GROUP OF PERSONS for whose BENEFIT & GUIDANCE the info is supplied. ii. D does NOT need to know P; it is enough thathte maker of the report intends it to reach/influence either a part person(s) known to him group expected to have access sooner or later and foreseeably take some action in reliance upon P. iii. CT AGREES it properly balances indet liability of foreseeability test and restrictiveness of near privity test. iv. LIMITS potl liability of an acct to noncont 3rd parties who can demonstrate ACTUAL KNOWLEDGE on the part of accts of the limited-though unnamed- group of potl 3rd parties that will rely upon the report as well as knowledge of the particular fin transactions that such info is designed to influence. 1. LIMITED TO ACCTS KNOW @ TIME THE AUDIT REPORT IS PUBLISHED; NOT by the foreseeable path of harm envisioned by litigants years following an unfortunate biz decision. 2. WILL NOT EXCUSE ACCTS WILLFUL IGNORANCE of info which the acct would have

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been aware had he not consciously disregarded that info. Cf Guenther v. Cooper Life Sciences, Inc. Cal 90 Acct knew that audit report would be placed in prospectus for public offering and had expressly consented to its use/inclusion. Bily Investors claimed reliance on fin statements D prepared for Osborne Comp. Auditor retained to conduct an annual audit & furnish an opinion for no particular purpose generally undertakes NO duty to 3rd parties. HELD investors should be encouraged to rely on their OWN PRUDENCE, diligence, and contracting power as well as other info tools. 1. PUBLIC POLICY CONCERN Imposition of duty might lead accts to rationally resp to increased liability by simply REDUCING AUDIT SERV where biz failure is high. FOUR APPROACHES TO THE ? OF DUTY OWED BY ACCTS TO THOSE NOT IN PRIVITY WITH THEM: 1. Actual Privity: small # of states require AP 2. Near Privity: NY demands linking between acct/rel party; req MORE THAN NOTICE from the relying party to accts a. Security Pacific Business Credit, Inc. v. Peat Marwick Mairi & Co. NY 92 P lender claimed it was owed a DODC by D auditor based essentially on a single unsolicited phone call that Ps VP made to D. Call AFTER D comp filed audit but BEFORE FINAL REPORT PREPARED. IF single call could suffice every lenders due diligence list would mandate such a call. 3. Modified Foreseeability: NJ a. Allowing MORE EXPANSIVE liability 4. The Restatement View: almost the states follow this OTHER PROFESSIONALS 1. Glanzor v. Shepard NY 22 Public weigher D was asked by the seller to weigh a load of beans and certify the result to P buyer. Weigher neg certified TOO HIGH. DOZO even though NOT IN PRIVITY, weigher KNEW that the end/aim of the trans was to inform the buyer of amt to be paid. 2. Duncan v. Afton, INc. Wyo 99 Employer fired P fter D testing company reported to employer that P tested + for drugs. Even though NOT IN PRIVITY, Ct used 8 factor test and imposed duty since comp KNEW its actions would affect workers being tested. 3. Sain v. Cedar Rapids Comm School Dist Iowa 01 HS college counselor mistakenly told P student that a senior course would meet NCAA req for college sports eligibility. It didnt and P lost a full tuition scholarship to college. HELD ct imposed DOC under 552 sim to that imposed on other prof who give advice. a. Need NOT be in a prof r/s as long as i. Ds PROFESSION involves GIVING of info ii. D REALIZES that P is likely to RELY on info b. Counselors paid by school dist to provide such info 4. Aufrichting v. Lowell NY 95 HELD a physician could be sued for understating the severity of P patients med cond in an affidavit. Pt settled case w/ insurer for LESS than its value. Duty to speak carefully if speaking @ all in this r/s 5. Greinke v. Kees NY 75 Allowing claim where D phy neg and erroneously told pt he had y 12-18 months to live; P relied on it, took early retirement from his job and sustained SUBSTANTIAL FINANCIAL LOSS.

e.

f.

g.

h.

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6. Arato v. Avedon Cal 93 NO DUTY to wife/kids to disclose health info about life expectancy relating to pts nonmed interests. 7. Professor Bishop nonliability justified on grounds that sup of info cannot capture the benefit of their prod once it has entered into the SOC. Liability should be restricted when: a. The info is of a type that is valuable to many potential users b. The producer of the info cannot capture in his prices the benefits flowing to all users of the info c. The imposition of liability to all persons harmed would raise potential costs significantly enough to discourage info production altogether. d. *WHEN MET, impose liability on D in relation to a lim #/class ONLY! i. Attorneys and Clients 1. Meeting filing deadlines a. Legal Malpractice not filing w/in SOL or failure to perform a non-judicial task. i. GOOD CLAIM IF P can show that action, if timely filed, might have been successful. b. Making strategic choices courts are not likely to second-guess the attys decision unless it lacked any plausible justification i. Expert is usually needed to explain to the jury the SOC and deviation. 2. Settlements advice to settle a claim for too little may lead to liability for malpractice i. Graipon v. Wofsly, Rosen, Kweskin, and Kuriansky UPHOLDING an action where the atty was allegedly to have neg valued the marital estate so as to induce his client to settle for too little. ii. Attys have an absolute ETHICAL OBLIGATION to convey settlement offers to their clients. Failure to so can be the basis for a malpractice claim iii. First National Bank of LaGrange v. Lowrey Ill 07 Affirming judgment against atty who failed to transmit a $1 mill settlement offer in a med mal case, after which Ps were unsucc @ trial. 3. Criminal Cases i. Willy v. County of San Diego Cal 98 P who had been convicted of a crime could NOT sue his de fatty for malprac w/o proving he was innocent of the underlying crime. ii. Retrying a crim case = COMPLEX PROBLEM! P must PROVE by POE that, but for the neg of the atty, the jury could not have found him guilty BRD. P LIMITED to evidence admissible in crim trial. Atty, however, could intro addl evidence inc sup evidence of factual guilt. 4. Emotional Distress i. Pleasant v. Celli Cal 93 An atty missed the SOL on what the jury could have found to have been a successful med mal case. Claim v atty property included econ harm (maybe even emo harm underlying med mal) but ED award was REVERSED. P MUST SHOW she sustained

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HIGHLY FORESEEABLE shock stemming from an abnormal event! 1. Missing SOL did NOT suffice! ii. Other courts have suggested that when an atty retained for non-econ purposes crim defense, adoption proc, marital dissolution ED damage may be FORESEEABLE and RECOVERED as one item of damages. iii. Holiday v. Jones Cal 89 incomp counsel permits client to be convicted of invol m/s iv. Kohn v. Schappa NJ 95 lawyer rep clients seeking to adopt a child improperly reveals their names to the natural mother. v. Wagemann v. Adams 87 malprac led to clients invol incarceration in psych hospital. j. Attorney and Third Parties 1. Blakanja v. Irving Cal 58 D notary public drew up Ps bros will giving P the entire estate. Bc nots neg failure to have the will prop witnessed, the will failed and the bros property passed by law to other relatives. P rec only 1/8! Recovery for 7/8 v notary AFFIRMED. a. FORESEEABLE due to end/aim of transaction! 2. Lucas v. Hamm Cal 61 will INVALID bc it violated rule v perpetuities. In malprac action, ct DENIED liability would impose an undue burden on the legal prof bc although liability could be large/unpredic in amt, this is also true of attys liability to his client. HELD legal error did NOT demonstrate neg; rule was difficult to understand/apply 3. Heyer v. Flaig Cal 69 UNLESS ben could recover v attorney, no one could do so and social policy of preventing future harm would be frustrated! 4. Courts are willing to EXTEND DUTY to NONCLIENTS when client has asked atty to provide info to other side or prepare docs for a deal. 5. Petrillo v. Bachenberg NJ 95 Court imposed a duty of DC on a sellers atty in connection w/ an arguably misleading percolation - test report given to prospective buyer. EXTENDED to other kinds of INFO the atty KNOWS or should know will INFLUENCE a non-client bc objective purpose of opinion letter, title rep/offering statements it to induce others to rely on them. 6. Small group of states req PRIVITY in WILL CASES a. Barcelo v. Eliott Tex 96 Grandkids who lost their inheritance bc of an invalid will were DENIED RECOVERY. Ct pref min view that atty owed duty solely to his client. Ct feared cases in which the will did not reflect the actual inst of testator or testator never signed the will; ct wouldnt be able to tell when it was the attys malpractice or testators change of mind. i. Unable to draw bright line rule to exclude cases where testators intentions are doubtful. k. Landowners 1. 532 Madison Ave Gourmet Foods Inc v. Finlandia Center INc. NY 01 Construction related disasters in Midtown. Issue: landowners duty in neg where Ps SOLE INJURY LOST INCOME TC dismissed Ps neg claims could NOT to est Ds owed a duty of care for purely econ loss in ABSENCE of PI/prop damage. Public nuisance claims also dismissed injuries same kind as suffered by all biz in community. REVERSED

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2. Goldberg Weprin & Ustin v. Tishman Const City prohibited all traffic and evacuated nearby bldgs for varying time pds. TC failure to allege PI/prop damage BARRED recovery in neg (due to enormity of liability sought). REJECTED recovery for strict liability and dismissed public nuisance claim (no spec damages) a. Absent prop damage, the connection between Ds activities and the econ losses of the purported class of Ps was TOO TENUOS/REMOTE to permit recovery on any tort theory. b. REINSTATED neg/pub nuisance claim of Ps in the other 2 cases Ds DUTY to keep premises in safe condition EXTENDED to those biz in such close prox that their neg acts could be REASONABLY FORESEEABLE to cause injury. AFFIRMED 3. Existence and scope of tortfeasors duty is a question for the courts which FIX THE DUTY point by BALANCING FACTORS inc: a. Reas EXPECTATIONS of the parties and society b. The PROLIFERATION of claims c. The LIKELIHOOD of unlimited or insurer-like liability d. DISPROPROTIONATE risk/reparation allocation e. PUB POLICY affecting the expansion/limitation of new channels of liability Palka v. Servicemaster 4. ABSENT a DUTY running DIRECTLY to the INJURED person, there can be NO LIABILITY in damages. [avoid unlimited liability] 5. Duty may ARISE out of SPECIAL R/S a. EX: Landowners duty to tenants special r/s defines class of potential Ps to whom the duty is owed 6. FORESEEABILITY or harm does NOT DEFINE duty. a. Strauss foreseeable injuries but NO contractual r/s b. Miliken & Co. v. Con Ed NY 94 underground water main burst in Manhattan interrupting Buyers Week. Relying on Strauss, Ct HELD that ONLY those persons CONTRACT w/ the utility could state a COA. 7. A landowner who engages in activities that may cause injury to persons on adjoining premises surely owed to those persons a duty to take reasonable precautions to avoid injuring them but NO DUTY to protect neighborhood against purely economic harm a. Beck v. FMC Corp NY 77 / Dunlop Tire & Rubber Corp v. FMC Corp 76 An explosion at Ds chem manuf plant caused phys vibrations raining stone/debris on to Ps Dunlop Tires nearby factory. Both Ps lost electrical power. Ps in Beck were employees of the Chevrolet plant who sought damages for lost wages caused by closure; Ps in Dunlop sought recovery for property damage emanating from the blast and loss of energy/profits. i. Dunlop ct PERMITTED Ps to seek damages for econ loss subject to general rule req proof of the extent of the damage and the causal r/s between neg/damage. ii. Beck Ps could NOT state a COA bc to extend a duty to D FMC would go far beyond the ZOD of the explosion to everyone who suffered EL. 8. People Express Airlines v. Consolidated Rail Corp NJ 85 Fired started at Ds comm freight yard located across the street from Ps airport offices. Chem emitted req closure of the terminal bc of fear of an explosion. NJ allowed P to seek damages for purely EL!

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a. Extent of liability/degree of foreseeability stand in direct proportion to one another b. REJECTED ELSEWHERE! 9. Koch v. Con Ed of NY 84 City of NY attempted to recover damages for various EL suffered as a result of the 77 blackout discussed in Strauss. HELD city stated COA for damages caused by looting/vandalism of its prop but DISMISSED claims for recovery of emergency wages paid to city personnel and municipal revenues lost as cons of blackout. l. Stand Alone Economic Harm 1. BP Oil Spill - $20 bill fund to compensante state/local/private losses a. Many biz OTUSIDE of oil slick (FL) b. Prior oil spills had est a limit exception for community fishermen 2. Union Oil v. Oppen 74 PERMITTING recovery for comm fishermen for LOSS OF A RESOURCE OF THE SEA vis its fish in the ordinary course of their biz. 3. In Re Exxon Valdez 89 DENYING claims by biz suffering loss profits due to an oil spill in Texas but comm fishermen could recover. 4. Oil Polution Act (OPA) 1990 imposes liability for certain losses arising from an oil spill into navigable waters on a strict liability basis. a. Covered losses so long as they are DUE TO an oil spill. b. CAPS liability for private losses @ $75 mill w/ an exception for GN, willful miscond, or violation of an appropriate safety statute. m. Charterers 1. Robins Dry Dock & Repair Co. v. Flint 27 Time charterers of a boat were denied recovery for loss of use due to Ds neg repairs. Damage to ship was not a wrong to Ps whose loss arose ONLY from a K with the owners. Respondents have NO CLAIM either in K or in tort and cannot get standing by suggestion that if someone else had recovered it, he wouldve been bound to pay over a part by reason of his personal r/s w/ the respondents. 2. Nautilus Marine, Inc. v. Niemela 99 Ct REJECTED a charterers claim for lost profits despite the allegation that the collision was caused intentionally or by recklessness. If Robins is to be OVERTURNED it must be by the SC or CONGRESS! 3. Courts have DENIED LIABILITY when the party suffering phys harm might have INDEMNIFIED the victim of econ loss through a channeling k a K that would REDUCE the AMT of LITIGATION by allowing the victim of PH to recover ECON LOSSES OF OTHERS as well. n. Insurance 1. Connecticut v. Mutual Life Insurance Co. v. NY & New Haven RR Co. Conn 56 Life insurance comp could NOT maintain an action v. D who neg caused premature death of the insured. 2. Rickards v. Sun Oil Comp. NJ 45 Ds barge neg destroyed a bridge that was the only means of access to the retail businesses of the 6 Ps. Ct concerned w/ disp liability DENIED LIABILITY! 3. Bishop on Econ Loss in Tort Many EL situations involve NO NET SOCIAL COSTS its mere redist of wealth as disappointed buyers go elsewhere to fill the breach. Liability approp DENIED! 4. Phoenix Prof Hockey Club, Inc. v. Hirmer Ps reg goalie was injured in an automobile accident allegedly due to Ds neg. P sued for out-ofpocket expenses incurred in hiring and employing a sub goalie during the remainder of the term of the injured goalies K. CT DISMISSED to

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protect K interests from neg interference would place an undue burden on freedom of action & could impose a severe penalty on one guilty of mere neg. a. Weinrot Corp could CALCULATE VALUE of employees services protect loss by securing key employee insurance o. Defective Products 1. If defect caused ONLY EL, the P buyer should be LIM to K remedies! 2. City Express, Inc. v. Express Partners Haw 98 A bldg. owner alleging that it was not in privity w/ D arch, sued the arch for misdesigning the bldg. in a way that made it unusable for its intended purpose but NOT DANGEROUS.P sought lost rent and cost of remedying. CT DENIED TORT RECOVERY! CHECK BOOK TO MAKE SURE THERE ARENT ANY CASES MISSING c. Wrongful Birth, Wrongful Life, Fetal Rights, Right to Die [p. 319-332] a. Emerson v. Magendantz CHECK BOOK TO MAKE SURE THERE ARENT ANY CASES MISSING V. Causation a. Cause-in-fact [p. 333-384] a. Basic Doctrine 1. Stubbs v. City of Rochester NY 19 2. Zuchowicz v. U.S. COA 98 b. Loss of Chance Doctrine views a persons prospects of surviving a serious med condition as something of value, even if poss of recovering was less than even prior to phys tortious conduct. 1. If phys neg red/elim chance of surv Liable for harming P 2. LIMITED recovery to loss of chance for MED MAL/NEG! a. Reliable expert evidence est LOC is more likely to be available in a med mal case than in others b. Med neg that harms Ps chance of a more favorable outcome contravenes the expectation @ heart of Dr/Pt r/s that phys will take EVERY REAS measure to obtain an optimal outcome for the pt. c. Not uncommon for Pts to have a less than even chance of survival or of achieving a better outcome when they present themselves for diagnosis. d. Failure to recognize LOC on med mal actions forces party who is the least capable of preventing the harm to bear the cons of the more capable partys neg. 3. Matsuyama v. Birnbaum Mass 08 P complained of gastric distress Asian smoker risk of gastric cancer 10-20xs the risk of avg American. D did NOT order any tests to det the cause of Ps complications. Tested + H.Pylori and died of gastric cancer 5 months later. JV4P- Ds neg a SUB CONTRIBUTING FACTOR to Ps deat. Dam for P/S, LOC (full w/d [loss of work/life] & final LOC) a. Issue Whether Mass law permits recovery for a loss of chance in a med mal wrongful death action, where a jury found that D physs neg deprived the Ps decof less than an even chance of surviving cancer.

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b. Ps expert witness D breached app SOC in evaluating/treating P. Cancer couldve been treated in a timely fashion when it might still have been curable. c. Loss of Chance Doctrine sub only mean there was a FAIR CHANCE of survival/cure i. Unjust to deny the person recovery for being unable to dem to an absolute certainty what wouldve happened in circ that the wgdoer didnt allow to come to pass. ii. Lowers threshold of proof EXCEPTION: P must prove by a POE that D CAUSED her injuries d. Theory of Injury injury need NOT mean death. We can estimate a pts prob of survival to a reas degree of medical certainty. i. Dim/destroyed Ps chance of survival REAL INJURY ii. Diminished likelihood of achieving a more favorable med outcome REAL INJURY iii. Ds arg that statistical likelihood of survival is a mere possibility DENIED! e. Under All or Nothing Rule P MAY recover damages ONLY by SHOWING that the Ds neg MORE LIKELY THAN NOT caused the ultimate outcome. i. 51% to 0% Full W/D ii. 49% to 0% P receives NOTHING iii. Blanket release from liability anytime when chance < 50%, regardless of negligence iv. If Ps chance < even logically impossible for P to show that the phys neg was the but for cause of her death. v. FAILS TO DETER fails to provide incentives to insure care does NOT fall below SOC c. Introduction to Joint/Several Liability 1. d. Multiple Ds 1. Summers v. Tice Cali 48 While hunting, both Ds shot in Ps direction; one shot stuck Ps eye, the other his lip. TC bench BOTH Ds NEG! P not @ fault; unable to decide which shot hit P judge awarded judg v. BOTH Ds. a. Issue Whether the judgment v both Ds may stand b. NOT Joint tortfeasors bc NOT IN CONSORT c. Jointly liable neg of BOTH caused injury or that legal effect. (direct/prox result of shots fired by both) 2. Oliver v. Miles Miss 26 Where a group is in a hunting party, or otherwise engaged in use of firearms, and TWO of them are NEG in firing in direction of a 3rd party who is injured thereby, BOTH of those firing are liable for injuries suffered although the neg of only one could have caused the injury. HELD under circ presented, each D is liable for the whole damage whether they edeemed to be acting in concert or independent. a. PUBLIC POLICY CONCERN Otherwise, both would be exonerated from liability although each was neg & there was an injury due to such neg. i. BURDEN SHIFT TO D both neg wrongdoers ABSOLVE yourself if you can! P shouldnt be req to pin

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injury on one of the Ds only given their relative position to one another Ds are in far better position offer evidence to determine which one caused the injury! b. Res Ipsa Loquitur (Ybarra) P has made a case when he has produced evidence which gives rise to an INFERENE of NEG which was the PC of injury. i. BURDEN OF D to explain cause of injury ii. Evidence is practically accessible to him but inaccessible to injured P. c. Same for cases involving racing; being in consort 3. Under common law before comparative fault, if the damages were $20k, EACH D would be jointly/severally liable for the full amt, although P couldnt obtain more than one satisfaction of his $20k judgment. 4. Under todays practice, the FACT-FINDER, even if unable to determine causation, would have had to ASSESS FAULT %s on Ds and statute would be applied to those findings. 5. Garcia v. Joseph Vince CO. 78 P fencer hurt by a defective saber. P could NOT ID which of 2 man was the source bc it had been put back into pile of sabers. Effort to enforce Summers v. Tice REJECTED DISMISSED! 6. Dillon v. Twin State Gas & Electric Co. NH 32 A boy lost his balance while sitting on a girdle 19 ft above a bridge. In an effort to avoid falling, grabbed on to neg exposed wire and was electrocuted. HELD if jury found boy wouldve been killed by fall w/o regard to wire, any award v D utility for expose wire should be REDUCED drastically! 7. Copley v. Putter treating virtually SIMILAR impacts under Summers v. Tice approach. e. Causal Apportionment 1. Loui v. Oakley Haw 68 P was hurt in an auto accident caused by Ds neg. P was then hurt in the SAME AREA of her body 3 SUB TIMES. a. Issue Extent of Ds liability b. HELD if jury could not allocate the damages by a POE, it was to make a ROUGH APPORTIONMENT c. In future, desirable proc is to litigate all four accident TOGETHER to guarantee full damages d. R3T 26 prefers apportionment be performed on the basis of causation; parties should NOT PAY for harm they have NOT CAUSED. A low threshold should be req for parties attempting to prove causation, so as to facilitate this goal e. Difficulty w/ apportioning on basis of comparative fault relative FAULT the parties may NOT CORRESPOND to HARM they have caused. 2. Campione v Soden NJ 97 Relying on Louie as basis for permitting jury to divide damages even in the absence of concrete evidence and even if apportionment cannot be performed HELD damages should be apportioned equally among the various causative events! 3. Gross v. Lyons FL 00 REJECTED Louie; P was hurt by 2 neg Ds 3 MONTHS APART. In case v. D1, jury shouldve been told that if D1 could NOT BEAR the burden of ALLOCATING between the two accidents, the jury shouldve awarded FULL DAMAGES against D1. 4. Cox v. Spangler Wash 00 req D to unravel the harms, or pay for the entire injury, where P was injured in a work-related accident 6 months before D neg injured P.

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5. Rowe v Munye Min 05 The Ps pre-existing cond was NOT tortuously caused. HELD BURDEN SHIFTING employed by some courts when 2 neg Ds each cause an indet amt of damage is INAPPROPRIATE. P bears burden of proof in demonstrating the harm caused by the D, above and beyond the pre-existing condition. f. Mass Litigation 1. Hynowitz v Eli Lilly & Co NY 89 Wachtler: Ps inured by drug DES ingested by their mothers during pregnancy. Ps seek relief v 12 DES manuf. TC DENIED all SJ motion on SOL issue; GRANTED Ps claim; DISMISSING Ds affirmative def that actions were time barred. AFFIRMED HELD present circ call for a recognition of a realistic avenue of relief for Ps injured by DES a. ISSUE 1 recover although impossible to ID? i. YES, under theory of concerted action b. ISSUE 2 - how to FAIRLY/EQUITABLY apportion the loss occasioned by DES in case where EXACT manuf is UNKNOWN. i. Market share concept based on natl market ii. Apportion liability so as to correspond to the overall culpability of each D, measured by the amt of risk of injury each D created to the public at large. Even if D appears not to have caused a part. Ps injury liable iii. Liability is SEVERAL only shouldnt be inflated when all part in the market are not before the ct in a part. Case. iv. Court DECLINED to increase a Ds liability beyond its fair share of responsibility; trade-off for preventing exculpation c. justice/fairness req FORMATION of a REMEDY for such injuries legislative response reviving previous barred actions d. more appropriate for Ds to bear the loss by those that prod drug despite inability to identify e. STRONG EVIDENCE links prenatal DES exposure to later development of serious med probs BUT i. Ps seeking relief for their injuries face 2 barriers to recovery: 1. ID of manuf impossible 2. Latent nature of DES injuries, many claims barred by SOL before discovery. 3. SOL accrued upon exposure in actions alleging PI caused toxic substances. f. In products liability action, ID of exact D whose product injured the P is, of course, generally REQUIRED. g. Recovery available in tort doctrines of alternative liability and concerted action, but common law forums do NOT permit recovery in DES cases. h. Summers v. Tice: Where 2 Ds breach duty to P, but theres uncertainty BURDEN upon each D to PROVE he has NOT CAUSED the harm. i. Ravo v Rogatruck successive tortfeasors may be held j/s liable for an injury to P that is indivisible. Otherwise, P wouldnt recover. i. With alternative liability, both Ds would be forced to speak or held j/s liable.

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1. Req Ds have better access to info [Here, DES Ds are not in a better position than Ps to identify the manuf of the DES] 2. All poss tortfeasors must be before ct [no real prospect of having all possible producers before the ct] 3. *THEREFORE, alt liability provides DES Ps with no relief. ii. Theory of Concerted Action supply a basis for RELIEF: 1. Provides for J/S liability on the part of all Ds having an understanding, express or tacit, to PARTICIPATE in a COMMON place or design to commit a tortious act a. EX: Drag racing cases 2. Drug comp engaged in extensive parallel conduct in developing/marketing DES. (no agreement for preg use w/o taking proper steps to ensure drugs safety) iii. Mollens DISSENT adopt market share theory of liability except for those Ds who are able to prove that their product could NOT have caused the injury. 1. Liability for Ps damages of those Ds who are UNABLE to exculpate themselves should be j/s thereby ensuring that the Ps will receive full recovery of their damages 2. Charging Ds that CAN exculpate themselves = judicial legislation 2. Orsen v. George 67 several men neg fired in the Ps direction. D1/D2 fired w/ gun that was IDd as the one causing the fatal injury. D3 was firing at the same time w a diff gun. D3 was found j/s liable w/ others although his bullet could NOT have caused the injury bc he knew the others were acting tortuously and encouraged them by doing the same thing. g. Enterprise Liability industry-wide liability [REJECTED] 1. Hall v. E.I. DuPont de Nemairs & CO. NY 72 Ds were 6 blasting cap manuf comprising virtually the entire blasting cap industry in the U.S. There was evidence thaDs, acting indep, had adhered to an industry-wide standard with regard to safety features of blasting caps. Cautioned v application of the doctrine to large # of producers! 2. Conley v. Boyle Drug Co. FL 90 decided that the market should be as narrowly defined as the evidence in a given case allows. a. The narrower the market, the greater the likelihood that liability will be imposed only to drug comp who couldve manuf DES with caused Ps injury. b. Theory of last resort: P show DUE DILIGENCE in trying to FIND the specific source of the DES before P is allowed to bring a market share action. h. Other Possible Applications 1. Asbestos a. Goldman v Johns-Manville Sales Corp Ohio 87 Essential condition req doe MS treatment was FUNGIBILITY all the products made pursuant to a SINGLE FORMULA. Asbestos is

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NOT a prod and asbestos-containing prod do NOT create sim risks. 2. Lead Paint a. Santiago v. Sherwin Williams Co. 93 A child who was allegedly harmed by exposure to lead paint sued several manuf. Exposure to lead from painting the house is NOT SUFFICIENT to impose MS liability. Some were not making lead paint @ that time, there are OTHER SOURCES of lead airborne, food, water, soil & dust. Hood in ? heavily contaminated. b. Thomas v. Mallett Wis 05 Court found its states version of MS liability applied to lead pigment manuf i. The fact that other sources of lead existed only bore on the Ps burden to prove that paint was the source of Ps lead poisoning. ii. Remedy v others (landlords) for failing to abate risks did NOT prevent app of MS liability 3. Childhood Vaccines a. Shackill v. Lederee Laboratories NJ 89 Ct REFUSED TO EXTEND MS liability to manuf of vaccine in PI suit in which P could NOT ID the producers of the particular dose. i. PUBLIC POLICY GOALS subverted if MSL allowed for producers of vital vaccinations. b. Proximate Cause [p. 393-432] a. Either P has made out DBC or else they are sufficiently in dispute that the D CANNOT ESTABLISH the absence of any of them as a matter of law. b. D will argue that even a neg D who actually caused the harm in question should NOT BE LIABLE for the Ps harm. c. Ds ADMITTED/ASSUMED NEG was NOT THE PROXIMATE (LEGAL) CAUSE of the Ps harm. d. Tort law does NOT impose liability on an actor for all harm factually caused by the actors tortious conduct. 1. Unexpected Harm a. Eggshell P Rule Requires the D to take his P as he finds him, even if that means that the D must compensate the P for harm an ordinary person would NOT have suffered. i. A tortfeasor whose act, superimposed upon a prior latent condition, results in an injury may be liable in damages for the FULL DISABILITY! [Injury, not the dormant condition, the proximate cause of the Ps harm] ii. REJECTS the limit of foreseeability that courts ordinarily require in the determination of proximate cause. iii. Benn v. Thomas SC of Iowa 1994 Ds vehicle rear-ended the van in which decedent was a passenger. [Jury charge failed to convey the applicable law!] A. ISSUE Whether the TC erred in refusing to instruct the jury on the eggshell P rule in view of the fact that Ps decedent, who had a history of coronary disease, died of a hard attack six days after suffering a bruised chest and fractured ankle in a MV accident caused by Ds negligence.

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B. HOLDING TCS REFUSAL CONSTITUTED REVERSIBLE ERROR! REV/ REMAND The record in this case WARRANTED an instruction on EPR C. The disease on its own is NOT SUFFICIENT for an EPR instruction; however, there was med testimony that the stresses of the accident and subsequent treatment were responsible for the heart attack and death! b. Dulieu v. White & Sons 1901 IF a man is neg run over or otherwise negligently injured in his body, it is no answer to the sufferers claim for damages that he would have suffered less injury, or no injury at all, if he had not had an unusually thin skull or an unusually weak heart. c. Christianson v. Chicago, St. Paul, Minneapolis & Omaha Ry. Co. Minn 1896 Consequences which follow an unbroken sequence, without an intervening efficient cause, from the original negligent act, are natural and proximate; and for such consequences the original wrongdoer is responsible, even though he could not have foreseen the particular results which did follow. d. R2T s 461 The negligent actor is subject to liability for harm to another although a physical condition of the other makes the injury greater than that which the actor as a reasonable man should have foreseen as a probable result of his conduct. e. Steinhauser v. Hertz Corp. 1970 14 year old sustained NO BI in a minor car accident, but was afterwards diagnosed with chronic schizo reaction. 2. HELD that trial judge had committed prejudicial ERROR by failing to charge that P was entitled to recover for the schizo if the jury concluded it had been precipitated by the accident. 3. BUTTTT existence of prior tendencies might greatly affect damages! a. BUT FOR CAUSE v. SUBSTANTIAL FACTOR TEST b. Good expert evidence that accident precipitated onset! ii. Bartolone v. Jeckovich NY 1984 P was slightly injured in a four-car chain reaction collision, suffering primarily from whiplash and back strain for which he was treated with muscle relaxants and physical therapy. [Psychological/Social Deterioration] 1. App Ct reinstated verdict for P from $30,000 to $500,000. 2. D had argued that Ps schizo had NOT been exacerbated by the accident and apparently had NOT argued that the accident only precipitated the onset. iii. Suicide resistance to impose liability has DIMINISHED when Ds negligence has severely injured a person who later commits suicide. 1. Fuller v. Preis NY 1974 43 yr old surgeon who sustained injuries in a car accident that left him subject to seizures and caused a physical deterioration.

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a. HELD the required irresistible impulse did NOT necessarily mean a sudden impulse. The jury could find that the irresistible implse that caused decedent to take his life also impelled the acquisition of the gun and the writing of the suicide notes. 2. Stafford v. Neurological Medicine, Inc. 1987 D liable for suicide after negligently permitting patient to receive mail indicating incorrectly that she was suffering from a brain tumor. 3. Zygmaniak v. Kawasaki Motors Co. 1974 D liable for the death of a victim who was shot and killed at the victims request by his brother after Ds negligence had rendered the victim a quadriplegic. 4. Maloney v. Badman NH 2007 severely ill Crohns disease patient committed suicide with pain killers and tranquilizers prescribed by D that violated the SOC and resulted in his being reprimanded by state medical disciplinary committee. [Suicide was the superseding COD] iv. Emotional Distress to be actionable, the harm must be such that it would cause distress in the ordinarily sensitive person or the reasonably constituted person. 1. R3T When P suffers greater damages than those that were foreseeable bc of preexisting physical or mental conditions, the P may recover for ALL such harm. v. Secondary Harm 1. Stoleson v. U.S. 1983 P worked in a munitions plant and was found to have suffered heart problems from neg being exposed to nitroglycerine. Harm was temp and should have stopped when P ceased working at the factory, but she developed hypochondria after the episode and was unable to function normally. a. Court adverted to the possibility that the Ps condition was brought about by med advice give her after the exposure to the nitro had ended. b. P CAN COLLECT INCREMENTAL AS WELL AS ORIGINAL DAMAGES from D since they would have been avoided if that person had used due care. 2. Miyamoto v. Lum Hawaii 2004 Court held irrelevant whether subsequent medical treatment is rendered negligently or innocently. 3. Pridham v. Cash & Carry Building Center, Inc. NH 1976 P, who had been seriously injured by Ds negligence, died when the ambulance driver transporting him to a hospital suffered a heart attack and the ambulance swerved into a tree. TJ charged that the D was liable for further injuries resulting from normal efforts of third persons in rendering aid which the others injury reasonably requires irrespective of whether such acts are done in a proper or in a neg manner. a. If med services are rendered neg, the rule based on question of policy makes the neg of the original tortfeasor a proximate cause of the subsequent injuries suffered by the victim. b. The ambulance trip was a necessary step in securing med services required by the accident at Cash & Carry.

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4. Wagner v. Mittendorf NY 1922 D neg broke Ps leg. While P was recovering, through no fault of his own, his crutch slipped and the leg was rebroken. HELD D liable for that aggravation b. In re an Arbitration Between Polemis and Another and Furness, Withy & Co., Ltd. COA 1921 The owners of the ship Thrasyvoulos sought to recover damages from the Ds who chartered the ship. The K of charter was read to hold the D charterers responsible for damage caused by fire due to their negligence. [APPEAL DISMISSED!] i. If the D is guilty of neg, he is responsibele for ALL the consequences whether reasonably foreseeable or not. ii. L.J. Bankes The falling of the plank was due to the neg of the ds servants. The fire was directly caused by the falling of the plank. It is IMMATERIAL that the causing of the spark could NOT have been reasonably anticipated. 1. Given the breach of duty which constitutes the negligence, and given the damage as a direct result of that negligence, the anticipations of the person whose neg act has produced the damage is IRRELEVANT! iii. L.J. Scrutton To determine whether an act is negligent, it is relevant to determine whether any reasonable person would foresee that the act would cause damage. If he would not, the act is NOT negligent. If the act might or does cause damage, the fact that the damage it in fact causes is not the exact kind of damage one would expect is IMMATERIAL so long as the damage is in fact directly traceable to the negligent act. [Here, neg in discharging cargo to knock down planks of the temporary staging for they might easily cause damage] c. Smith v. London and South Western Ry. Ds railway passed near the Ps cottage, and that a small strip of grass extended for a few feet on each side of the line, bounded by a hedge which formed the boundary of Ds land. The night before, the Ds servants had trimmed the hedge and cut the grass and left the trimmings and cut grass along the strip of grass. Shortly after two trais passed, a fire was discovered upon the strip of grass land forming part of Ds property. The fire spread to the hedge and burnt through it. A strong wind blowing at the time set fire and burnt the Ps cottage. P won. i. In re Arbitration distinguishing type and extent of harm. d. Overseas Tankship (U.K.) Ltd. V. Morts Dock & Engineering Co. Ltd. (The Wagon Mound) Privy Council 1961 P respondents owned a wharf in Sydney Harbour, and were refitting the ship Corrimal. At a diff wharf, the ship Wagon Mound, chartered by Ds, was taking on bunkering oil. The oil spilled nto the bay and some concentrated near Ps property. Ds set sail, making no effort to disperse the oil. When Ps manager became aware of the condition, he stopped all welding and burning until he could assess the danger. Based on discussions w/ managers at Wagon Mound, he felt he could resume all activities safely. After two days, oil under or near the wharf was ignited and a fire spread, causing extensive damage to the wharf and Ps equipment. TJ awarded judgment to P and Full Ct of Sup Ct of New South Wales DISMISSED Ds appeal. PC held appeal should be allowed; RESPONDENTS ACTION DISMISSED. i. Raison detre of furnace oil is to burn, but D couldnt have expected it to do so in water. ii. OVERRULE Polemis - no longer good law! The actor should NOT be liable for all consequences however unforeseeable or grave so long as they can

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be said to be direct. A man must be considered to be responsible for the probable consequences of his act. To demand more is too harsh a rule! iii. Concerned primarily with displacing the proposition that unforeseeability is irrelevant if damage is direct. The essential factor in determining liability is whether the damage is of such a kind as the reas man should have foreseen. iv. MUST RETURN FROM STRICT LIABILITY TO NEGLIGENCE! Equally wrong for D to escape liability however indirect the damage, if he foresaw or could reas foresee the intervening events which led to its being done FORESEEABILITY IS THUS THE EFFECTIVE TEST e. Smith v. Leech Brain & Co. 1962 Through the Ds negligence in providing inadequate shielding, a worker was burned on the lip by a piece of molten metal. The burn was treated but it did not heal; it ulcerated, developed into cancer that spread, and the worker died of cancer 3 years later. Judge found worker had probably become pre-disposed to cancer by ten years of work in the gas industry earlier in his life. HELD Wagon Mound did NOT alter the principle that D must take his victim as he finds him! i. The cancer didnt have to be FORESEEABLE but rather the INJURY! f. DIFFERENT TYPES OF HARM i. R3T s 29 An actors liability is LIMITED to those physical harms that RESULT from the RISKS that made the actors conduct tortious. 1. Darby v. Natl Trust 2001 The owner of a historic house had an ornamental lake in front of it in which rats regularly urinated. The owners failed to warn guests not to swim in the lake, which was neg bc of the risk of contracting Weils disease, which is FATAL. The P swam and died. P died not from Weils but simply drowned. HELD Proximate cause was absent! ii. Blyth v. Birmingham Waterworks Co. 1856 the Ds water main sprang a leak during an unprecedented frost and the escaping water damaged Ps house. JV for P. 1. Baron Alderson such a state of circ constitutes a contingency against which no reasonable man can provide. The result was an ACCIDENT for which the Ds CANNOT BE HELD LIABLE! iii. Zuchowicz Judge Calabresi addressed the need to link Ds conduct to Ps harm, especially in cases where 1. But for Ds actions the accident would clearly not have occurred. 2. Ds actions are EXTREMELY CLOSE in TIME/SPACE to the harm, yet no one can reasonably believe that hat the D did, though wrong, enhanced (at the time D acted) the chances of the harm occurring or that it would increase the chances of a similar accident in the future if the D should repeat the same wrong. [req of causal link not met D NOT LIABLE!] a. Berry v. Sugar Notch Borough Pa 1899 A tree fell on a trolley car whose excess speed had caused the tram to be at that specific place when the tree fell. HELD the req of causation was NOT MET. Although the accident would not have occurred BUT FOR the trolleys speeding, speeding does NOT increase the probability of trees falling on trolleys.

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b. Darting out cases unable to aoid the collision even if they were driving w/I the speed limit NO LIABILITY! c. Causal links says the, even if Ds wrong was a BUT FOR cause of the injury in a given case, NO LIABILITY ensues UNESS Ds wrong INCREASES the chances of such HARM occurring in general. iv. Ventricelli v. Kinney System Rent A Car NY 1978 Ps rented car had a defective rear trunk lid that flew up while P was driving. P pulled over the car over in to a regular parking space along the city street and was trying to get the lid to stay down when he was hit by a car. Lessor held NOT LIABLE. v. Derdiaran v. Felix Contracting Corp. NY 1980 - Even though the lessors neg undoubtedly served to put the injured party at the site of the accident, the intervening act was divorced from the and not the foreseeable risk associated w/ the original negligence. Injuries were DIFF in kind than those which would have NORMALLY been EXPECTED from a DEFECTIVE TRUNK. 2. SUPERSEDING CAUSES Sometimes an unforeseeable force, such as an unprecendented storm, raises an issue about Ds neg conduct: is such a natural occurrence one that the D should have anticipated and taken precautions against? a. Gibson v. Garcia Cal 1950 P alleged that the D LA Transit had neg allowed a wooden power pole on a main road to deteriorate to such an extent that when a neg driver crashed into it, it fell over onto the P who was walking by at the time. Ct rejected Ds argument that, althout it might be liable if the pole had simply fallen by itself, it should not be liable when the fall was caused by a neg driver. b. Doe v. Manheimer SC of Conn 1989 P, who was working as a meter reader, was raped by an unidentified assailant around 8 am on prop owned by D. JV for P. TC set aside the verdict on Ds motion w/o the shielding, the rape most prob wouldnt have occurred on Ds property. HELD: as a matter of law, the jury could NOT find that Ds maintenance of overgrowth on his prop was a substantial factor in producing the Ps injuries and, hence, the P had FAILED TO ESTABLISH PROXIMATE CAUSE. NO ERROR! Ds conduct contributed to the harm, principally caused in fact by another person or force, but was NOT a proximate cause of that harm. i. ISSUE: Whether a landowner may be liable in tort for damages arising from the rape of a pedestrian committed on the landowners property behind brush and trees that shielded the area from view from the nearby public sidewalk and street. ii. Ps expert opined that the physical configuration of the specific site increased the risk of violent crimes between strangers by creating a protective zone that reduced or eliminated visibility and, hence, served as an inducement for crime. iii. P alleged the OVERGROWTH CAUSED/CONTRIBUTED to assault & its duration. iv. TRIER OF FACT MAY FIND THE OCCURRENT OF VIOLENCE REASONABLY FORESEEABLE IN SUCH A SHELTERED LOCATION. [BREACH OF DUTY BUT NOT THE CAUSE OF THE INJURY COULDVE HAPPENED ELSEWHERE] v. The issue of PC is ordinarily a QUESTION OF FACT for the TRIER. It becomes a question of LAW when the MIND of a FAIR/REAS MAN could

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reach ONLY ONE CONCLUSION; if there is room for reasonable disagreement the q is one of fact vi. TCs judgment setting aside the jurys verdict may stand only if there was no room for a reasonable disagreement on the question of probable cause! vii. To prevail on neg claim, a P must est that Ds conduct LEGALLY CAUSED the injuries. 1. The first component of legal cause is CAUSATION IN FACT. The test for CAUSE IN FACT is, simply, would the injury have occurred were it not for the actors conduct. 2. The second component is PROXIMATE CAUSE, an ACTUAL CAUSE that is a SUBSTANTIAL FACTOR in the RESULTING HARM. [remote/trivial actual causes are generally rejected] The test for PROX CAUSE is whether the Ds conduct is a substantial factor in producing the Ps injury. viii. Neg conduct can be a CAUSE IN FACT but NOT a SUBSTANTIAL FACTOR for the purposes of a PROXIMATE CAUSE inquiry. ix. SUB FACTOR TEST Whether the harm which occurred was of the same general nature as the foreseeable risk created by the Ds negligence. x. SCOPE OF RISK analysis of PC whether the risk of harm created by the Ds negligence allegedly extends to an intervening criminal act by a third party. 1. To be W/I SCOPE OF RISK, the harm actually suffered must be of the SAME GENERAL TYPE as that which makes the Ds conduct neg! a. EX: Where P stumbles on accumulated debris on the Ds land, and injures himself, the D may be liable. b. HOLDING: the harm suffered by the P in this case was not of the same general type that allegedly made the D neg. Opportunity of shielding and Ps harm ACCIDENTAL! Anything could have shielded the assault xi. R2T 442B a neg D, whose conduct creates or increases the risk of a particular harm and is a substantial factor in causing that harm, is NOT relived from liability by the intervention of another person, except where the harm is intentionally caused by a 3rd person and is NOT within the scope of the risk created by the Ds conduct. xii. D does NOT argue that his conduct was not a cause in fact of Ps injuries, but the harm P suffered CANNOT reasonably be understood as within the SCOPE of risk created by the Ds conduct. [DENIED CATALYST LIABILITY] xiii. R2T 441 The rapists conduct is NOT a dependent intervening force; that is, a predictable response or reaction to the stimulus of a situation for which the actor has made himself responsible by his negligent conduct. [reasonably foreseeable intervening misconduct] xiv. NO evidence of past experience that might reasonably have led D to perceive and act on the atypical association of overgrown veg and violent crim activity. c. Hines v. Garrett Va 1921 a train improperly carried the 18 yr old a mile past her stop; the conductor told her to walk back past a bad neighborhood where she was raped. HELD intervening crim conduct did NOT insulate the railroad from liability.

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d. Addis v. Steele Mass 1995 guests at an inn were forced to jump from a second floor window to escape a late-night fire. HELD even if set by an arsonist, Ds obligation was to anticipate fire from whatever source. e. Hines v. Morrow Tex 1921 two men were sent out in a service truck to tow a stalled car out of a mud hole. One of the Ps artificial leg slipped into the mud hold in the road, which would not have been there had D-RR not disregarded its statutory duty to maintain this parto f the highway. The tow rope lassoed his good leg and broke it. Details considered SIGNIFICANT facts of the case the accident is UNFORESEEABLE! f. Phan Son Van v. Pena Tex 1999 minor gang members illegally obtained alcohol from D and got drunk at an initiation ceremony. They raped and murdered to girls. HELD crim conduct NOT FORESEEABLE! [distance in time and location and not the type of harm that would ORDINARILY result from such a sale.] g. Barry v. Quality Steel Products, Inc. Conn 2003 HELD there is NO independent significance to intervening neg 3rd party conduct for PC purposes. IF Ps harm is w/in the scope of the risk created by the Ds tortious conduct, no separate instruction on intervening events and superseding causes should be employed! i. R3T Even intervening actors who commit intentional torts are NOT superseding causes if the harm that occurs is w/in the scope of risk. h. Exxon Co. v. Sofec 1996 P could be BARRED from recovery based on its employees quite careless conduct a superseding cause in navigating a boat that was set loose due to Ds neg. 3. UNEXPECTED VICTIM NEG IS NOT A TORT UNLESS IT RESULTS IN THE COMMISSION OF A WRONG/VIOLATION OF A RIGHT a. Palsgraf v. LIRR Co. COA NY 1928 P was standing on a platform of Ds RR after buying a tix. Two men ran fwd to catch the train, one of them reached the platform of the car. The other, carrying a package, jumped aboard the car and the package was dislodged. The package contained fireworks, but there was nothing in its appearance to give notice of its contents. The explosion threw down some scales, which struck the P causing injuries. The conduct of the Ds guard, if a wrong to the holder of the package, was NOT a wrong in its relation to the P. Ps verdict REVERSED! [LIMITING LIABILITY] i. P did NOT sue as a vicarious beneficiary of a BREACH of DUTY to ANOTHER! ii. NEG + DUTY = STRICTLY CORRELATIVE. iii. P MUST SHOW A WRONG TO HERSELF NOT SOME ONE ELSE EYE OF VIGILANCE DIDNT PERCEIVE THE RISK OF DAMAGE AS IN RECKLESS SPEEDING! iv. The RISK reasonably to be perceived DEFINES the DUTY to be obeyed. v. JUSTICE ANDREWS DISSENT: Where there is an unreasonable act, and some right may be affected, there is neg whether damage does or doesnt result. [EX: reckless driving is neg whether we strike someone or not!] SHOULDVE BEEN SUBMITTED TO THE JURY! 1. Subrogation suing in the right of the insured 2. In Polemis, the act being wrongful, the doer was liable for its proximate results.

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3. EX: Dam with neg foundation destroys prop downstream LIABLE! No matter how unusual/unforeseeable as long as damages are so connected with neg that the latter may be said to be the PC of former. b. RESCUE i. Wagner v. Intl Railway Co. NY 1921 TJ no liability unless conductor invited P to partake in the rescue. Cardozo DANGER INVITES RESCUE! The wrong that imperils life is a wrong to the imperiled victim AND his rescuer! Wrongdoer, even if unforeseeable, is accountable to rescuer! ii. Moore v. Shah NY 1982 P alleged that he was a rescuer entitled to recovery he donated his kidney to his father who had been h by Ds malpractice. FORESEEABLE BUT COURT DENIED RECOVERY! c. TIME i. Firman v. Sacia NY 1959 P alleged that as a result of Ds neg driving, he struck a 3 rd old boy who sustained serious brain injuries that induced him, 7 yrs later, to shoot the P. TJs dismissal of the complaint was UPHELD on appeal. RISK NOT W/I RANGE OF APPREHENSION Palsgraf d. FIRE i. Ryan v. NY Central RR Co. 1866 Sparks from Ds neg maintained engine ignited one of its sheds and the fire spread to other buildings, including Ps. COURT DENIED RECOVERY! 1. That a bldg. upon which sparks fall should be destroyed is a natural and expected result; but that the fire should spread and other bldgs. Be consumed is not a necessary or usual result. Results depend upon an occurrence of accidental circumstances. e. THE KINSMAN CASES i. Petition of Kinsman Transit Co. 1964 The Buffalo River was full of floating ice. Because its crew responded inadequately to the impending danger, the Shiras, owned by Kinsman, was torn lose form its mooring and began floating downstream. The Shiras crashed into a properly moored ship, tearing it loose, and both ships careened down the river toward a life bridge operated by the city. Because of the citys neg, the bridge was NOT raised, and the two ships crashed into it, destroying it and some surrounding property. TJ found liability against Continental, Kinsman, and the City of Buffalo. FORESEEABLE! 1. The incurring of consequences other and greater than foreseen does NOT make the conduct LESS culpable or provide a reasoned basis for insulation.

VI.

Defenses [p. 433-489] A. PLAINTIFFS FAULT Even if D was NEG, P was CARELESS about his/her own safety 3. CONTRIBUTORY NEGLIGENCE [Brown v. Kendall burden of proving freedom from contributory negligence, Goodman v. Pokora] o Duty owed to ONESELF; CONDUCT must be an ACTUAL/PROX CAUSE of Ps HARM. 1. Hightower v. Paulson Truck Lines, Inc. Or 1977 Ps recovery not affected despite following too close on the highway. Even

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if he had followed at reas safe dist, he still couldnt have stopped. o Virtually all states place burden of proving freedom from contrib neg on D ii. STATUTES where purpose is to protect some group against its own inability to protect itself, the statute may be interpreted as barring a defense of cont neg. 1. Chainani v. Bd of Ed NY 95 statute req school bus operators to instruct students in crossing streets, to flash red ligh, and to wait until students getting off the bus have crossed the street. Purpose to protect children would be thwarted if a childs contributory neg were a defense. ii. LIMITATIONS a. RECKLESSNESS Only a defense in cases of NEGLIGENCE! o If Ds misconduct is more serious recklessness/willful misconduct the APPROP DEFENSE would have been CONT RECKLESSNESS or CONT WILLFUL MISCONDUCT o RECKLESSNESS involves a RISK SUBSTANTIALLY > that which is necessary to make conduct NEGLIGENT b. LAST CLEAR CHANCE P behaves carelessly and got into a dangerous situation that led to injury. Two types of dangerous situations: o P had gotten into a position of helpless peril and was no longer able to take protective steps. [Courts invoke LCC v D who knew or should have known of the Ps plight while still able to avoid the harm by the exercise of due care] o P who was oblivious to the danger but who could, if behaving reasonably, become aware of and avoid harm up to the last moment. [Courts req that before LCC could apply, the D driver had to have actual knowledge of Ps danger in time to avoid harm by exercise of DC] o EX: A claim that D could NOT stop in time bc of brake failure would NOT have invoked LLC bc most courts req that the D be able to do something in the period after the Ps PERIL STARTS. o Where APPLICABLE, Ps contrib neg is IRRELEVANT c. REFUSAL TO IMPUTE CONTRIBUTORY NEG Imputing the neg of a driver/engineer to all the passengers on the vehic, preventing their suits against other parties whose neg contributed to the collision Imputing to the child a parents neg in failing to protect that child. [if a child is hurt through combined neg of mother and stranger, courts no longer impute the mothers neg to bar the childs action!] Most courts impute the neg of an injured person to family members asserting the consortium claims. d. THE JURYS ROLE

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Jury simply reduced the Ps damages by some amount rather than return a defense verdict. Jury likely to ignore its instructions on contrib neg and apply a standard of comparative negligence. 2. COMPARATIVE NEGLIGENCE A NEG Ps recovery DEPENDS on how SERIOUS Ps neg was COMPARED to Ds neg. [CALI, FL, ILLINOIS] a. PURE COMPARATIVE NEGLIGENCE: P who is 90% to blame for an accident can recover 10% of the damges from the D found to be 10% at fault. A D who was hurt in that same accident could recover 90% of her damages from P! b. MODIFIED SYTEM VARIANT: P who is at fault can recover as under the pure system but only so long as that neg is NOT AS GREAT AS the defendants. c. MODIFIED SYSTEM VARIANT: P can recover as under the pure system but only so long as that neg is NO GREATER THAN that Ds. HYPO ON PG. 440 o There has been an accident in which A has suffered damages of $40k and has brought suit against B, C, and D. A trial has est that the relative shares of fault are A- 40%, B-30%, C-10%, and D-20%. PURE STATUTE - All are SOLVENT. Under the Uniform Comparative Fault Act, the court shall determine each partys equitable share of the obligation to EACH claimant in ACCORDANCE with the RESPECTIVE % of FAULT.] B 12k + C-4k + D-8k = $24k AGGREGATING OR NON-AGGREGATION? Aggregate P should be able to recover [P < all Ds] o Same as under PURE Dont aggregate P might not be able to recover indep. o Liability of each D decided sep P gets nothing! o A 30% and C 10% C IS NOT LIABLE! D is INSOLVENT. Approach #1: Pure joint and several liability where A BEARS NO BURDEN in the reallocation. o B and C are liable for the entire portion of the damages owed by Ds. o Instead of the denominator being 100% or 10, it is now 40% or 4 bc D and As fault is NOT included. o B and C share liability out of a 40% pool: A collect of 24k from B 18k A collects of 24k from C 6k

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Approach #2: REVOKE J/S LIABILITY Hold each D liable for their proportional share. Insolvent D P just CANT RECOVER THAT AMOUNT! Approach #3: HOLD ALL PARTIES (INC P) J/S LIABLE C has ALSO been hurt and sustained damages of $25k. A-30%; B-40%; C-10%; and D-20%. What if A-51% and C9%? A says to B, pay me $24k. Does B have to pay that or can B pay $12k to satisfy her obligations under the judgment? B pays $24k. What should B do after making that payment? What if A only sued B? UCFA 4b: o party paying more than his equitable share may recover judgment for contribution o Settler can get contribution where liability is extinguished and settlement amount was reasonable. o B can get contribution ONLY after C has argued the case until the end! After settling w/ B, A gets a judgment against C at trial for 30k, with the jury fining that B and C were each 50% at fault for $50k of damage. Can C get contribution from B? Under s 6 of the Uniform Act, NO CONTRIBUTION ONCE PARTY HAS SETTLED. But Ps judgment against non-settling D is reduced by settling Ds share. NO CONTRIBUTION from B, but As judgment against C reduced by $25k (50-25) UCFA In setting fault %s, the trier of fact should consider: o Whether the CONDUCT was mere inadvertence or engaged in with an awareness of the danger involved, o The MAGNITUDE OF THE RISK created by the conduct, including the # of persons endangered and the potential seriousness of the injury, o The signif of what the actor was SEEKING TO ATTAIN by his conduct, o The actors superior or inferior CAPACITIES, and o The PARTICULAR CIRCUMSTANCES, such as the existence of an emergency requiring a hasty decision. Wright v. City of Knoxville Tenn 1995 SC held that officer should be assigned 25% of the fault bc she had driven on the wrong side of the road with full knowledge that drivers would be turning directly at her. o However, courts generally are RELUCTANT to REASSESS the fact finders allocation of %s unless they are totally indefensible. CONTRIBUTION The adjustment of loss among Ds o Several liability obviates (under most circ) the need for contribution but not indemnity

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UCFA provides for right of contribution among jointly and severally liable Ds and determines the EQUITABLE SHARE of each D through the assignment of a PERCENTAGE OF FAULT. o Virtually all states with pure versions have concluded that reckless conduct SHOULD be compared with negligence unless Ps conduct is thought to be socially offensive. o Most states have refused to compare the NEG of a P with the INTENTIONAL TORT of a D bc it is diff in kind from neg/reck cond. o Sometimes courts refuse to permit comparisons btwn neg and intentional tortfeasors to preserve substantial recovery v negligent tortfeasor. o When courts permit it, it is to cushion the neg tortfeasor from bearing most or all of the Ps damages. o Nash v. Port Auth of NY/NJ 2008 Assigned 65% of the comparative fault; more than the terrorists! The blameworthiness of neg may actually be INCREASED by the heinousness of the wrongdoing it DIRECTLY and FORESEEABLY facilitates! o R3T 14 a D who is neg bc of a failure to protect the P from the specific risk of an intentional tort is jointly and severally liable for the intentional tortfeasors share of fault. INSOLVENCY o In states that retain the doctrine of joint and several liability, but do not follow the UCFA, the loss due to one Ds insolvency will be SPREAD among the remaining Ds. o With several liability, the P will bear that loss. o Reallocate pro rata amongst all role players INC the P! ASSIGNMENT OF FAULT TO NONPARTIES Many jurisdictions that employ some form of several liability permit comparative responsibility to be assigned to a non-party. Appropriate share determination requires consideration of ALL tortfeasors who bear responsibility for the harm. o D BEARS BURDEN OF PROOF OF NONPARTYS LIABILITY! o 2003 Uniform Apportionment of Tort Responsibility Act doesnt permit! SETTLEMENTS o Pro Tanto/Dollar-For-Dollar Credit reduction of the nonsettling Ds liability by the amount of a good faith settlement MARY CARTER AGREEMENT o Booth v. Mary Carter Paint Co. FL 1967 In this type of agreement, D remains in the case and guarantees the P a certain payment. The SIZE of that payment DEPENDS on the Ps success against the other Ds. DAMAGE CAPS o Hall v. Brookshire Bros, Ltd La 2003 Read the statute imposing the cap to address the max amount the P could RECOVER and thus HELD the Ps comparative share should FIRST be DEDUCTED from the verdict amount, then the cap applied. RES IPSA LOQUITUR o Montgomery Elevator Co. v. Gordon Colo 80 RIL could be used if the Ps evidence showed ONLY the first two conditions. Once court rules the doctrine is applicable, the jury MUST then o

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COMPARE any evidence of neg of the P with the inferred neg of the D and DECIDE what % of neg is attributable to each party. RESCUE o Ouellette v. Carde RI 92 The law places a premium on human life, and one who voluntarily attempts to save a life of another should not be barred from complete recovery. Since the D did NOT allege that the P had acted rashly or recklessly, the TJ should NOT have charged at all on the issue of Ps negligence. DRINKING PLAINTIFF o Estate of Kelley v. Moguls, INc. Vt 1993 HELD the estate of a person who has killed himself by driving while drunk MAY have a common law neg action against the licensed vendor who supplied the alcohol. Under comparative neg, P would NOT be made whole and it is appropriate that both parties be deterred from their conduct! Foster irresponsibility and reward drunk driving? o Some states also permit NEG ENTRUSTMENT actions by drinking drivers against the persons who lent them the car although they knew that Ps were incapable of driving safely. SC has denied the cliam P more than 50% at fault as MOL barred from recovery & public policy bars a claim by an intoxicated driver. Fritts v. Mckinne Ok 96 P was seriously injured in a one-vehicle accident. He and a friend had been drinking and they crashed into a tree at approx. 70 mph. He underwent surgery to repair his facial fractures. D was performing a tracheostomy to allow Fritts to breathe during surgery. P began bleeding profusely and died 3 days later. P claimed that D NEG FAILED to ID/isolate the proper artery. JV4 D. COA defense that rupture of artery was inevitable is proper; however, the interjection of the issue of Ps possible neg in the accident, a matter UNRELATED to the medical procedure, was a substantial error that removed the jurys consideration from the relevant issues and led to erroneous excursion into irrelevant/highly prejudicial matters! REVERSED/REMANDED o TJ instructed jury on the issue of Ps comparative neg., including General Duty of Drivers duty of the driver to use ordinary care to prevent injury to himself or to other persons. o Under the guise of contrib neg, a physician simply may NOT avoid liability for negligent treatment by asserting that the patients injuries were originally caused by the patients own neg. o Here, where the evidence of Ps intox and history of substance abuse, along with repeated references to it by defense counsel, was SUFF PREJUDICIAL to Ps case as to have prevented a full and fair trial of the issues. [MORE PREJUDICIAL THAN PROBATIVE!] PRE-TREATMENT CONDUCT SHOULD NOT BE CONSIDERED IN THE LIABILITY PHASE OF THIS TYPE OF CASE!

3. DOCTRINE OF AVOIDABLE CONSEQUENCES (OPERATING AS COMP NEG) Even if the accident was entirely the Ds fault, the Ps recovery might be reduced to the extent he failed to exercise due care to mitigate the harm done. EX: failure to obtain med attn. or to follow medical advice

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Hall v. Dumitru Ill 93 HELD a person under NO DUTY to undergo surgery to mitigate damages caused by Ds negligence. o Duty to mitigate applies to treatment that dont involve recog risk Reluctance to mitigate by treatment raises special PROBLEMS when the reasons are based on RELIGIOUS BELIEFS. o Munn v. Algee 1991 HELD the decedents religious beliefs would NOT JUSTIFY her failure to accept a blood transfusion. o Tanberg v. Ackerman Investment Co. Iowa 91 P sustained a back injury due to Ds neg. Dr advised him to lose weight to mitigate back pain. Jury found that P failed to make a reasonable effort to lose weight; P was 70% at fault for his damage compared to 30% for the tortfeasor. Under states modified comparative neg rule, P recovered NOTHING! ANTICIPATORY AVOIDABLE CONSEQUENCES Even though the obligation to mitigate arose only AFTER the original injury use seat belts or safety belts in automobiles or helmets with motorcycles. o NY/Cali D bears burden of showing what part of Ps harm was due ot the failure to use the safety equipment. o DIFFICULT TO DISTINGUISH BTWN CONT NEG/AVOID CONS If Ps neg AFTER Ds neg AVOIDABLE CONSEQUENCES o Champagne v. Raybestos-Manhattan Conn 89 SYNERGISTIC INTERACTIONS of asbestos exposure and smoking. Jury found for P but reduced award by 75%! HELD jury could reas have concluded that the decedent knew or should have known that his conduct was unreasonable and, consequently, there was no basis for upsetting the jurys decision.

B. ASSUMPTION OF RISK AFF DEF TO SL req a showing of more than ord cont neg in that the P must have VOL/UNREAS proceeded to encounter a known danger despite haz of which the P had actual subjective knowledge [fact q for jury] 1. EXPRESS AGR Parties sometimes AGREE in ADVANCE [either orally or in writing] that P will relieve D of his/her legal duty toward the P. R2T 496B o Sound in K, not tort, based upon express manifestation of consent ABSOLUTE DEFENSE IN ACTION FOR NEG! i. Will the courts enforce even the most clearly drafted K given the type of activity involved? ii. If so, is the K in question sufficiently clear? A. Releases - Exculpatory or hold-harmless agreements o Hanks v. Power Ridge Restaurant Corp. SC Conn 05 Ds operate a facility where P took his family to snowtube. Patrons were required to sign a Waiver, Defense, Indemnity and Hold Harmless Agreement, and Release of Liability (agreement).While snowtubing, the Ps right foot became caught between his snowtube and the manmade bank of the snowtubing run, resulting in serious injuries that required multiple surgeries to repair. Ds MSJ claiming that agreement barred the Ps neg claim as a matter of law. TC granted Ds MSJ. TJ improperly rendered SJ in favor of the Ds. REVERSED/REMANDED Not released in the absence of language that expressly so provides. P, by signing the K, unambiguously had RELEASED the Ds from liability for their allegedly neg conduct. P raises two claims on appeal:

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i. TC IMPROPERLY concluded the K clearly and expressly released the Ds from liability for neg. [court disagreed NEGLIGENCE expressly stated THREE TIMES!] ii. The K is UNENFORCEABLE bc it VIOLATES PUB POL. A recreational operator CANNOT, consistent w/ PP, release itself from liability for its own neg conduct where, as in the present case, the operator offers its services to the public generally and req patrons to sign a standardized exculpatory k as a cond of participation. [court agreed Ks v PP are UNENFORCEABLE] Widespread support in other juris for a rule REQ that ANY AGREEMENT intended to EXCULPATE a party for its own NEG STATE SO EXPRESSLY! Exculpatory provisions undermine the policy considerations governing our tort system policy purposes are compensation of innocent parties, shifting the loss to responsible parties or distributing it among appropriate entities, preventing future harm and deterrence of wrongful conduct! o Hyson v. White Water Mountain Resorts of Conn, Inc. 03 P was injured while snowtubing at the same resort and sued. ISSUE Whether the exculpatory K released the D from liability for its NEG claims as a matter of law. HELD P only released D from liability for damages caused by dangers inherent in the activity of snowtubing NOT NEG Tunkl v. Regents of the UofCali 63 Involved a release of all patients entering a hospital. Given the virtually unrestricted access of the public to Power Ridge, a reas person would presume that the Ds were offering a recreational activity that the whole fam could enjoy safely. Tunkl factors relevant to the determination of whether exculpatory agreement violates public policy: 1. The agreement concerns a BIZ of a type generally thought SUITABLE for PUBLIC REGULATION 2. The party seeking exculpation is ENGAGED in performing a SERVICE of great IMPORTANCE to the PUBLIC, which is often a matter of practical necessity for some members of the public. 3. The party holds himself out as WILLING to PERFORM this service for ANY member of the public who seeks it, or at least for any member coming within certain est standards 4. As a result of the ESSENTIAL NATURE of SERVICE, in the ECON SETTING of the TRANS, the party invoking exculpating possesses a decisive ADVANTAGE of BARGAINING strength gainst any member of the public who seeks his services. 5. In exercising SUPERIOR BARGAINING power the party confronts public with a STANDARDIZED ADHESION K of EXCULPATION and makes no provision whereby a purchaser may pay addl reas fees and obtain protection against negligence.

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6. As a result of the transaction, the PERSON/PROP of the purchaser is PLACED under CONTROL of SELLER, subject to RISK of carelessness by the seller or his agents. Ds have the expertise/opportunity to FORSEE and CONTROL HAZARDS and to guard against the neg of their agent and employees. TAKE IT OR LEAVE IT BASIS ADHESION K Factor relevant to enforcement of contractual limit on liability is whether the party seeking exculpation was willing to provide greater protection against tortious conduct for a reas, additional fee. NORCOTTS DISSENT: parties are FREE to K for whatever terms including the assumption of known/unknown hazards and risks that may arise as a consequence of the execution of the K. PG 466 - No statutes/reg that affect snowtubing uphold the release - Not an important public service - Facility open to vast public (age/height exc) - NOT an essential activity; other locations. Absence of compelling personal need and lim choice facilities D HAD NO SIG BARGAINING ADVANT - Take it or leave it situation - Lack of control associated w/ participating - Under majoritys reasoning, nearly any release affects the public interest. - Release at issue does NOT violate public policy as it pertains to the sport of snowtubing - TC PROP GRANTED SJ IN Ds FAVOR No matter what the situation, courts generally agree that GN/RECK may NEVER be DISCLAIMED by K no matter what the words are. Summer v. Federal Signal Corp. NY 92 alarm cos failure to relay alarm Even when releases are determined to be VALID, whether adults signing releases can BIND MEMBERS of their FAM arises w/ increasing frequency. Galloway v State Iowa 2010 HELD parental waivers of liability to their children are per se INVALID bc of the lim authority of parents over their childrens legal affairs, reflecting indep legal protection from parental decisions while at the same time distinguishing adults releases. Hojnowski v. Vans State Ark NJ 06 INVALIDING PARENTAL REL in a case in which a 12 yr old child fractured his femur while skateboarding. Dilallo v Riding Safely, Inc. Fl 97 REFUSING to enforce a clear release signed by a 14 yr old in order to ride @ the stable and adopting a per se rule on the ground of protecting minors. Others are more willing to bar children from suit

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Sharon v. City of Newton Mass 02 UPHOLDING a release signed by parents to permit their daughter to be a cheerleader at a public school. Zivich v Mentor Soccer Club, Inc. Ohio 98 UPHOLDING a parents sig on a release to permit a childs participation in a soccer league BOUND THE CHILD and also BARRED THE PARENTS derivative action for harm to the child - @ least in cases involving nonprof groups. i. PUBLIC POLICY denying immunity deters vol. B. Signs Ds claim a K exists by virtue of a sign posted on Ds land combined w/ Ps conduct. o EX: bailment @ a parking lot w/ a large sign that announces that all cars are left @ owners own risk. When that car is stolen the courts REJECT the CLAIM that the bailment K INCLUDED the DISCLAIMER, in the absence of a showing that the lim whether on a sign or on a claim check drawn to the Ps attn. o Berrios v. UPS NJ 92 GENERAL RULE: unilateral disclaimers are NOT EFFECTIVE UNLESS brought to Ps attention! ii. Controversy over Contract MED MAL o R. Thaler & C. Sunstein barring waivers req patients to, in effect, purchase mandatory insurance and many would opt for waivers of liability and concomitant lower costs if given the choice iii. Post-injury releases written AFTER injury [settlement agreements] o Mangini v. McClurg NY 69 some of Ps injuries did NOT MANIFEST themselves UNTIL AFTER settlement was signed. Reasons for settling giving RELEASE a discharge of liability for any UNKNOWN INJURIES: i. Willingness to take a calculated risk ii. Desire to obtain an earlier settlement iii. Bargain for general peace iv. If general peace is the CONSIDERATION NO MUTUAL MISTAKE as to the extent of the injuries, known or unknown. BUT UKNOWN injuries are NOT generally w/I CONTEMPLATION of the parties despite the generality of standardized language in releases. Ps entitled to try to prove, directly or circumstantially, that there was NO INTENTION to release a claim for unknown injuries. 2. IMPLIED ASSUMPTION OF RISK P implicitly, rather than expressly, assumes known risks. o PRIMARY IMPLIED AOR: P impliedly assumes those RISKS that are INHERENT in a particular activity. NOT A TRUE AFF DEF, but goes to the initial det of whether the Ds legal duty encompasses the risk encountered by P. [compatible with comparative neg!] i. P has failed to est a prima facie case of neg by failing to est a duty exists ii. EX: student injured in a collision during a football drill or watching a softball game] o SECONDARY IMPLIED AOR: P KNOWINGLY encounters a risk created by the Ds neg. TRUE DEF b its asserted ONLY after the P est a prima facie case of neg v the D. i. May involve reas/unreas conduct on the part of the P

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ii. Reas implied AOR P is aware of a risk neg created by D but vol proceeds to encounter the risk; when weighed v the risk of injury the Ps action is reasonable. iii. Unreasonable implied AOR ex: person who dashed into a fire in order to save his hat risk out of all proportion to the advantage which he is seeking to gain. o Murphy v. Steeplechase Amusement Co. NY 29 D maintains an amusement park at Coney Island with an attraction known as The Flopper. An electric motor, driven by current furnished by the Brooklyn Edison Co, supplies the needed power. When P went to get on, he felt a sudden jerk and was thrown to the floor. P took the chance and suffered a fracture of a knee cap. TC/AD Judgment for P - REVERSED i. This very HAZARD was INVITED and FORESEEN! ii. One who takes part in such a sport accepts the DANGERS that inhere in it so far as they are OBVIOUS/NECESSARY EX: spectator at a ball game accepts the risk of contact with the ball iii. Dangers were NOT OBSCURE/UNOBSERVED/SO MANY OR SERIOUS as to justify the belief that precautions of some kind must have been taken to avert them. iv. NO PRIOR ACCIDENTS v. Case did NOT go to jury on theory of Ds neg but on theory that NEG WAS DEP UPON A SHARP/SUDDEN JERK. o Participants Different approaches 1. Modified DOC 2. Reasonable Care Standard adapted to circumstances o Knight v. Jewett Cal 92 P alleged that during halftime of a Super Bowl telecast, she and her friends decided to play an informal game of touch football on an adjoining dir lot using a peewee football. One of the guys knocked P over from behind while defending on a pass play and stepped on her hand, injuring it. Ds conduct was careless, at most. TC GRANTED Ds MSJ - AFFIRMED. i. Crucial analysis is duty owed to P ii. LIABLE ONLY IF the participant INTENTIONALLY injures another player or engages in conduct that is SO RECKLESS as to be totally outside the range of the ordinary activity involved in the sport. iii. If D breached, affirmative defenses based on Ps conduct would be available if supported by facts. o Lestina v. West Bend Mutual Ins Co Wis 93 involving a soccer injury HELD neg should be governing principle i. To determine whether a players conduct constitutes actionable neg (or cont neg), the fact finder should consider such material factors as: 1. The sport involved 2. The rules/reg governing the sport 3. Generally accepted customs/practices (types of contacts/level of violence accepted) 4. Risks inherent in the game and those outside realm of anticipation 5. The presence of protective equipment/unif

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6. The facts/circ of the part case ages/phys attributes of the part, parts respective skills @ the game/knowledge of rules & customs Baseball Spectators LIMITED DUTY RULE 1. Davidoff v. Metropolitan Baseball Club NY 84 14 yr old P was sitting in the first row behind first base during a prof game when she was badly injured by a foul ball. Ct affirmed stadiums SJ. o Claims tradlly dismissed on grounds of assumption of risk o DOC owed by a proprietor of a baseball field to spectators: Where a prop of a ball furnishes screening for the area of the field behind home plate where the danger of being struck by a ball is greatest and that screening is of sufficient extent to provide adequate protection for as many spectators as may reasonably be expected to desire such seating in the course of an ordinary game, the proprietor fulfills the DOC imposed by law and, therefore cannot be liable in negligence. o DISSENT req screening only behind home plate does nothing more than to artificially limit the liability of ball park owners. A fan unable to secure a seat behind home plate must go home or fully assume responsibility for any consequences of remaining at the ball park no matter how unreasonable the risk of injury. 2. Legislation essentially, owners/operators are NOT liable to those hit by a ball or bat unless they are sitting behind a neg defective screen or they were hurt as the result of willful or wanton conduct. [Illinois/Colorado] o PUBLIC POLICY CONCERN: Family activity that should be encouraged; lim liab = contain costs keeping tix more affordable state derives econ benefit from spectators states interest to encourage attendance Davenport v. Cotton Hope Plantation Horizontal Property Regime SC So Carolina 98 Comp neg case arising out of accident where P was injured while descending a stairway near his apt. For two months prior to his fall, P had been reporting to mngmt that the middle stairways floodlights were not working, but he continued using that stairway. What he thought was a step, turned out to be a shadow caused by the broken floodlights. TC directed a verdict v P based on assumed risk; HELD even if comp neg applied, P was MORE neg than D as MOL. COA REV. SC HELD Ds fault is NOT diminished solely bc P knowingly AR. Even if P AR NOT BARRED UNLESS Ps > Ds neg. Ps neg in proceeding down the stairs did NOT exceed Ds neg. REMANDED 1. Issue Whether assumption of risk survives as a COMPLETE BAR to recovery under So Cars modified comp neg system? 2. Smith v. Edwards SC 38 EXTENDED def of assumption of risk to neg cases outside the tradl master-servant context. HELD AOR applies to any case where the facts proved show that the person v whom the doctrine of AOR is pleaded KNEW the danger, APPRECIATED it, and ACQUIESCED therein. o P died as a result of burns she suffered while receiving a perm wave at a beauty shop. D argued Ps diabetes made her peculiarly susceptible she assumed the risk. 3. In SC there are FOUR REQ to est the defense of AOR:

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The P must have KNOWLEDGE of the facts constituting a dangerous condition; o The P must know the CONDITION is dangerous o The P must APPRECIATE the nature/extent of danger o The P must VOLUNTARILY expose himself to the danger 4. An overwhelming MAJORITY of JURIS that have adopted some form of COMP NEG have essentially ABOLISHED AOR as an absolute BAR to recovery. o Rhode Island AOR complete bar to recovery o King v. Kayak Manuf Co W Va 89 P barred from recovery by doctrine of AOR ONLY when his DEGREE of FAULT arising therefrom =/> the combined fault/neg of the other parties to the accident. [MOST persuasive model] Boddie v Scott Md 99 P electrician was working in Ds basement when D allowed a grease fire to start on her stove upstairs. When she shouted for heldp, P rushed upstairs, grabbed newspapers to wrap around the handle and ran to the door. The breeze semt fore back onto him. JV4P P not cont neg ct affirmed. R2T 496 AR MUST BE VOLUNTARY! 1. It is NOT VOLUNTARY when Ds tortious conduct has left P NO REAS ALT way to protect another or to exercise/protect a right/priv of which D has not right to deprie him. P w/ a choice of evils will NOT be found to have assumed the risk! Employment Context triggered workers comp movement 1. Levandoski v. Cone Conn 04 P PO sued D for injuries neg caused by D while P was pursuing D on private prop. TC judg for P. SC Conn HELD firefighters rule DOES NOT apply; suff evidence to est foreseeability/proximate cause; allowing P to recover for Ds neg will tend to reduce WC costs by perm Ps employer to recoup those benefits affirm. o Firefighters rule a firefighter/PO who enters private prop in the exercise of his duties occupies the status of a licensee OWED DOC BY PROPERTY OWNER that is less than DOC owed to an ordinary invitee o OWED duty NOT to injure him willfully/wantonly o Issue Whether firefighters rule should be extended beyond the scope of premises liability so as to bar a PO from recovering, based on a claim of ord neg, from a tortfeasor who is neither an owner nor a person in control of the premises. o Bc the firefighters rule is an EXCEPTION to the gen rule of tort liability that, as btwn innocent party and a neg party, any LOSS should be BORNE by the neg party, the burden of pers is on the party who seeks to extend the excep beyond its tradl boundaries. [confined to prem liability!] i. Arg simply doesnt apply if D isnt a landowner. 2. Volunteer Rescuers o Roberts v Vaughn Mich 98 Firefighter rule BARS firefighter/POs recovery or injuries sustained as a result of the neg that gave rise to their emergency duties. [WC elig] i. Based largely on the quasi-emp r/s btwn taxpayers/paid public rescuers, the firefighter rule did NOT apply to volunteer firemen. o

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o Ferraro v Demetrakis NJ 79 ct EXTENDED firefighter rule to volunteers. [eligible for WC]

VII.

Strict Liability for ultrahazardous/abnormally dangerous activity [back to Hammontree] o Imposed on use of dynamite/other explosives for demolition in res/urban areas o Outright banning extremely dangerous activities [transporting uranium] o Applying negligence law to somewhat risky activities; socially beneficial [driving] o P NEED NOT PROVE NEGLIGENCE! a. Traditional SL/Doctrinal Development [p. 507-530] a. Rylands v. Fletcher Exchequer 1866 P Fletcher was a tenant mining coal under agreement with the landowner. D Rylands was operating a cotton mill on nearby land. Ps prop was flooded by water, which, w/o any fault on his part, broke out of a reservoir constructed on Ds land/maintained by D. 2 barons no neg by D (maybe agents PRE respondeat superior), no direct trespass/nuisance P was not entitled to recover at all; judg for D. HELD REVERSED; judg for P. 1. Issue What is the obligation which the law casts on a person who lawfully brins on his land something which, though harmless whilst it remains there, will naturally do mischief if it escapes out of his land. a. Absolute duty to keep it in at his peril? [resp for ALL natl cons] b. Duty to take all res/prudent precau to keep it in but no more? 2. No damage to Ps land BUT FOR this latent defect in subsoil; however, Ds, personally, free from all blame. Proper care/skill NOT USED by their employees. 3. P, though free from all blame, must bear the loss unless he can est that it was the cons of some default for which Ds are responsible. 4. Blackburns test for imposition of SL Pg. 508-509 a person who for his own purposes brings on his lands/collects/keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie ANSWERABLE for ALL the damage which is the natural consequence of its escape. He can EXCUSE himself by showing that the escape was OWING to Ps default or perhaps that it was the consequence of vis major/act of God. a. HOL limits bc rule would become unmanageable if PASSERBYERS are able to hold Ds SL b. Rylands v. Fletcher HOL 68 Ds APPEALED; AFFIRMED 1. Limited to NON-NATURAL USES 2. Natural could quickly become non-natural [VERY BROAD!] 3. Anything that is NOT natural to the land?! a. EX: Planting apple trees that bring deer and animals that trample your neighbors crops c. Losee v Buchanan NY 1873 Ds steam boiled used in conn w/ a paper manuf biz exploded and was catapulted onto Ps land and through several of his bldgs. 1. REJECTING Rylands members of civ society give up rights to exclusive/undisturbed use/possession of real estate; we must have factories/machinery 2. NO EVIDENCE to find negligence impose SL 3. How about res ipsa loquitur? It could have been lots of things! Does this ONLY happen due to someones negligence?! Exclusive control? d. St Dept of Envir Prot v Ventron NJ 83 Landowner strictly liable to others for harm caused by TOXIC WASTES that are stored on his prop and flow onto the prop of others. EXTENSION of Rylands

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e. 1st Res 519-520 (1938): Ultrahazardous defined as involving risks of serious harm to the person, land or chattels of others which CANNOT be eliminated by the exercise of utmost care and activities which are not a matter of common usage. f. Sullivan v Dunham COA NY 1900 D landowner employed two men to dynamite a 60 ft tree on the land. The blast hurled a fragment of wood 412 ft onto a highway where it struk Ps decedent and killed her. Two blasters were also sued. TJ charged that neg need NOT be proven to est liability. JV4P; affirmed o Issue Whether one who, for a lawful purpose and w/o neg or want of skill, explodes a blast upon his own land, and thereby causes a piece of wood to fall upon a person travelin in a public highway, is liable for the injury thus inflicted. [liable as trespassers upon Ps person?] o If P/Ds rights collide the latter must yield to the former as the more important of the two; better to surrender than to deprive one o Use of land is NOT an absolute right; its qualified/lim by the higher right of others to the lawful possession of their property. o MANNER in which work is done is of no conseq [Tremain v Cohoes] o When injury is NOT direct, but consequential, such as is caused by concussion, which, by shaking the earth, injures property, there is NO LIABILITY in the ABSENCE OF NEGLIGENCE. o Safety of prop is SUPERIOR in right to a part use of a single piece of property by its owner. o ABSOLUTE LIAB UPON THE ONE WHO CAUSES THE INJURY! o PUBLIC POLICY: Safety of those traveling on public highways is MORE IMPORTANT to the state than the improvement of one piece of prop. g. Booth v Rome, W. & O.T.T.R Co. NY 1893 HELD the 1849 Hay case INAPPLICABLE to harm suffered by CONCUSSION bc there the Ds act had caused DIRECT HARM to the Ps prop and was thus a trespass. o In Booth, the court emphasized that the D was engaged in LAWFUL ACT on its OWN LAND. Blasting was NECESSARY, CAREFULLY DONE, and the INJURY was CONSEQUENTIAL NO TECHNICAL TRESPASS o PUBLIC POLICY: It would not be a compromise of rights but the extinguishing of ones rights for the benefit of the other; we benefit from the building/improvement of prop; unnecessary restraint on freedom of action of a prop owner HINDERS THIS! o Spano v. Perini Corp. NY 69 P was not seeking to prevent blasting/desirable improvements to Ds prop; he was merely seeking comp for the damage which was inflicted upon his prop as a result of that blasting. o Not about whether it was lawful to blast but who should bear that cost of any resulting damage Booth was WRONGLY decided and should be OVERRULED! h. Liability W/O PROOF OF NEG was also IMPOSED for unintended explosions of stored dynamite. 1. Heeg v. Licht NY 1880 Ps bldgs were damaged when Ds powder magazine exploded for no reason. Argued as a case of NUISANCE. a. Divided cases of liab for a leg business into two groups: i. Some uses of land produce inconvenience and injury to others EX: slaughterhouses, fat and offal boiling, hogstyles, tallow manufactories in or near a city ii. Another group of uses involve dangerous acts done ONEs premises that might harm those passing by or residing nearby Hay a single individual should surrender the

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use of his land for especial purposes injurious to his neighbor i. 2nd Res 520 (65/77) one who carries on an ABNORMALLY DANGEROUS activity is subject to liability for harm resulting from the activity, although he has exercised the utmost care to prevent the harm. IF THESE ABNORMALLY DANGEROUS FACTORS ARE MET D IS STRICTLY LIABLE 1. Degree of risk 2. Probability of harm 3. Inability to eliminate the risk by the exercise of reasonable care CRITIC 4. The extent to which the activity is uncommon 5. The inappropriateness of the activity to the area where it is carried on; & 6. The extent to which the value of the activity to the community is OUTWEIGHED by its dangerous attributes. HOW DO WE WEIGH THIS? a. Runs COUNTER to principles behind SL j. Indiana Harbor Belt RR Co. v American Cyanamid Co. 90 D in this diversity tort suit gov by Illinois law, is a major manuf of chemicals. Once the car arrived, employees noticed fluid gushing from the bottom outlet of the car. The lid on the outlet was broken. Highly toxic/possibly carcinogenic; nearby homes evacuated. Concerned that there had been some contamination of soil and water, the Ill Dept of Env Prot ordered the switching line to take DECONTAMINATION MEASURES sought to be recovered by this suit. DC GRANTED Ps SJ on its strict liability claim and DISMISSED Ps neg claim. COA case for SL not made; REV/REM o Issue: Whether the shipper of a hazardous chemical by rail should be SL for the consequences of a spill/other accident to shipment en route o MOL ct owes no particular deference to conclusion of dist ct o Guille v. Swan NY 1822 A man too off in a hot-air balloon and landed, W/O INTENDING to, in a veg garden in NYC. A crowd watching trampled the vegetables in their endeavor to rescue him when he landed. The owner of the garden sued the balloonist for resulting damage and won. o Posner on econ rationale for SL Pg. 522 by making the actor SL by denying him in other words an excuse based on his inability to avoid accidents by being more careful we give him an INCENTIVE, missing in a neg regime, to experiment w methods of PREVENTING ACCIDENTS that involve not greater exertions of care, assumed to be futile, but instead relocating, changing, or reducing (perhaps by the vanishing point) the activity giving rise to the accident. o Cyanamid introduced the product into the STREAM OF COMMERCE that happened to pass through the Chicago metro area shipper did not merely place his goods on loading dock but ACTIVELY PART IN TRANS. o Siegler v Kuhlman Wash 72 the trailer of Ds gas truck broke away and rolled down onto a highway on which P motorist was traveling. Ps car went into a pool of gasoline spilled from the trailer and the resulting explosion obliterated the Ps decedent, car, and evidence of what happened. Ct used SL but Posner suggested RIL would suffice o Acrylonitrile COULD explode/destroy evidence, but of course did NOT HERE, making imposition of SL on the theory of Siegler decision prema o Leak was not caused by inherent properties but by CARELESSNESS accident due to lack of are CAN BE PREV by taking care; when a lack of care can (unlike in Siegler) be shown, such accidents are adequately deterred by the threat of liability for NEGLIGENCE. o The FEASIBILITY of AVOIDING accidents simply by being CAREFUL is an ARGUMENT AGAINST STRICT LIABILITY!

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DISTINGUISHING FACTOR here, it is not the actors (TRANS) but the MANUF who are sought to be held SL NOT AN APT CASE FOR SL! Even if feasible to reroute them one whould hardly expect shippers, as DISTINCT FROM CARRIERS, to be the firms best situated to do the rerouting. o Common carriers are not subj to SL for the carriage of mat that make the trans of them abnormally dangerous bc common carrier CANNOT refuse service to a shipper of a lawful commodity. o Cyanamid PART ACTIVELY IN TRANS imposed upon a DODC o Manuf of a prod is NOT considered to be engaged in an abnormally dang activity merely bc the prod become dang when handled or used in some way after it leaves his premises, even if foreseeable. G.J. Leasing Co v Union Elec Co 95 Keeping a tiger in ones backyard would be an example of an abnormally dangerous activity. The hazard is such, relative to the value of the activity, that we desire not just that the owner TAKE ALL DC that the tiger no escape, but that he consider seriously the possibility of getting rid of the tiger altogether. INCENTIVE to consider this course of action by DECLINING to make the exercise of DC a DEFENSE to a suit based on injury caused by the other making him SL for any such injury 3rd Res 20 first element modified to req a foreseeable and highly significant risk of PH even when reasonable care is exercised by all actors. Yukon Equipment Inc. v Firemans Fund Ins Co Alaska 78 Involved an explosion of a bldg. used to store explosives. Ct insisted the use/storage of dynamite warranted imposition of SL no matter how valuable the activity might be to the comm and even if there were no safer place to store it. Torchia v Fisher NJ 83 HELD that the owner of a stolen airplane liable for ground damage to Ps under a statute construed to create absolute liability REFUSAL TO IMPOSE SL 1. Crosby v Cox Aircraft Co of Wash 87 most courts now REFUSE to hold owners or pilots of falling aircraft strictly liable for harm to land, persons or chattels on the ground. a. Those on the ground have NO PLACE TO HIDE from falling aircraft and are HELPLESS to select any locality for their residence or business in which they will not be exposed to the risk, however minimized it may be. b. AVIATION DOES NOT FIT formal Res criteria for abnormally dang act. 2. Chavez v So Pacific Trans Co Cal 76 19 box cards laden w/ bombs, all belonging to the U.S., exploded, causing widespread damage/injury. a. RR argued that where a carrier is req to accept dangerous cargo, it is UNJUST to impose SL. Ct refused to create such an exception even though R2T 521 did reject SL in such a sit. b. Bound or not, D is in a POS to PASS along LOSS to the public. 3. Laird v Nelms 72 Involving prop damage caused by sonic booms from military planes. a. Although state law might recognize an action on a SL theory, wrongful as used in 28 USC 1346 of the Fed Tort Claims Act did NOT permit recovery v the govt on a SL theory. Emotional Distress 1. Birmingham Coal & Coke Co, Inc. v Johnson Ala 08 D engaged in blasting and was subj to SL for it. Ps recover for prop damage to their home, but the decided they could NOT Recover ED in a SL claim. o

k.

l. m.

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a. Alabama req PI/ZOD for ED recovery in neg/prod liability claims. No emo harm damages are available in pure prop damae cases. q. Defenses 1. R2T 523 Ps AOR from the activity BARS his recovery from the harm. 2. R2T 524 Cont neg is NOT a defense to SL except when Ps conduct involves know/unreas subj himself to the risk of harm from the activity. a. EX: A driver who intends on passing the truck ahead and fails to see Danger, Dynamite and later collides with the truck is NOT barred from cont neg. A driver who has read the sign barred 3. An increasing # of cases SUPPORT COMP NEG as partial def in SL. a. R3T 7: Ps neg thats a legal cause of an indivisible injury to the P reduces the Ps recovery in prop to the share of resp the fact finder assigns to the P/other person for whose neg P is responsible SL for defective products [p. 551-628] a. Introduction 1. MacPherson v Buick Motor Co COA NY 16 D is a manuf of automobiles. IT sold an auto to a retail dealer who sold to P. While P was in the car, it suddenly collapsed. He was thrown out and injured. One of the wheels was made of defective wood and its spokes crumbled into fragments. Wheel NOT MADE by D; bought from another manuf. Evidence its defects COULD have been DISCOVERED by reasonable inspection. NO CLAIM D knew and willfully concealed it. Judg for P; AFF; HELD D was NOT absolved from a duty of inspection bc it bought he wheels from a reputable manuf. It was not only a dealer but also a manuf responsible for the finished product. The MORE PROB the danger the GREATER the need of caution. By its relation to the work and by the nature of its biz STRICTER DUTY. AFFIRMED a. Issue: Whether the D owed a DOC and vigilance to anyone but the immediate purchaser. b. The principles of Thomas not lim to poisons/explosives/etc. If the nature of the thing is such that its reas certain to place life/limb in peril when neg made thing of danger! c. Danger + knowledge [of PROBABLE danger &] that thing will be used by persons other than the purchase/used w/o new test irrespective of K, manuf is under a DUTY to MAKE it CAREFULLY! [proximity/remoteness is a factor to be considered] d. Thomas v Winchester NY 1852 A poison was falsely labeled; sale made to a druggist, who in turn sold to a customer. The cust recovered damages from the seller who affixed the label. Ds neg put human life in imminent danger. A poison falsely labeled is likely to injure ANY one who gets it; bc the DANGER can be FORESEEN DUTY to AVOID injury. e. Loop v Litchfield NY 1870 case of a defect in a small balance wheel used on a circular saw. The manuf pointed out the defect to the buyer who wished a cheap article and was ready to assume the risk. Buyer made a lease of the machinery. HELD manuf not answerable to lessee. [after 5 years, RISK of injury TOO REMOTE] f. Devlin v Smith NY 1882 D, contractor, built a scaffold for a painter. The painters servants were injured. Contractor held LIABLE. He KNEW that the scaffold, if improperly constructed, was a most dangerous trap. He knew that it was to be used by the workmen; built for that VERY PURPOSE. D OWED A DUTY TO BUILD W/ CARE! g. Statler v. Goerge A. Ray Mfg Co NY 1909 D manuf a large coffee urn. It was installed in a restaurant. When heated, the urn exploded

VIII.

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and injured the P. Manuf LIABLE. When applied to the purposes for which it was designed, it was liable to become a source of great danger to many people if not carefully/properly constructed. h. To make the neg of the manuf of the component parts a cause of imminent danger, an indep cause must often intervene; the manuf of the finished prod must also fail in his duty to inspection. i. Presence of known danger + attendant upon a known use makes vigilance a DUTY j. PUBLIC POLICY CONCERN: If there is NO PRIVITY of K and the P is allowed to sue every passenger/passerbyer might bring a sim action limitless/absurd/outrageous consequences [Dozo if
danger is foreseeable privity will NO LONGER BAR an action]

2. Smith v. Peerles Glass Co NY 32 a soda bottle exploded and hurt P. Ct treated the BOTTLE MAKER as the manuf of a component part and brought it w/in the MacPherson principle. [prox cause problems?] 3. DEVELOPMENTS: MacPherson covered injuries to BYSTANDERS inc pedestrians hurt by a careening car or tire, prop damage, duty of repairers as well as manuf, and cases where damage was NOT reas certain. i. Treating a RETAILER who sold a prod under its own brand name AS though it were a MANUF liable for neg manuf ii. Manuf who incorp comp parts in the final prod liable for neg of the subcontractors iii. Arch/blders liable for neg in const that hurt patrons/tenants iv. WARRANTY: Ryan v Progressive Grocery Stores Inc NY 31 Mrs. Ryan asked the D storekeeper for a loaf of Wards bread. Her husband was seriously injured when he swallowed a pin embedded in a slice of the bread. Dozo shopkeeper liable for breach of the implied warranty of merch loaf of bread w a pin not of such quality. 1. Imposing liability on retailer w/o any finding of fault burden may be heavy; one of the hazards of the business 2. Liability not lim to value of good bad loaf. Higher dam permitted where the seller had notice from the nature of the trans that the bread was to be eaten! 3. Tradlly, warranties ran btwn parties in K privity. NOT HERE! 4. Escola v. Coca Cola Bottling o of Fresno SC Cali 44 P, a waitress, was injured when a soda bottle broke in her hand as she moved it from the case to the refrigerator. The D bottler used pressure to bottle carbonated beverages. Judg for P; AFFIRMED RIL in neg action. a. Tested by manuf delivered to bottler D. New/used bottles are filled/dist by D; not again subj to tests. If visible defects DUTY upon bottler to make approp tests before they are refilled i. Not comm practicable? Bottles should not be reused ii. Sufficient showing that neither cause would ordinarily have been present if DC had been used. D had EXCLUSIVE CONTROL over both the charging/inspection of the bottles P may rely on RIL doctrine to supply an inference of neg iii. D presented evidence to rebut inference a question of fact for the jury to determine whether the inference has been dispelled. iv. Traynors concurrence: Manufs neg should no longer be singled out as the basis of a Ps right to recover. Manuf incurs an absolute liab when an article that he has placed

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on the market, knowing that it is to be used w/o inspection, proves to have a defect that causes injury to human beings. As stated in MacPherson, irrespective of privity of K, the manuf is responsible for injury by such an article to ANY person who comes in lawful CONTACT w it [EVEN IF NOT NEGLIGENT!] Manuf can ANTICIPATE & GUARD against hazards; public CANNOT! 1. PUB POLICY CONCERN: Need for GENERAL CONSTANT PROTECTION v risks; the manuf is BEST SITUATED to afford such protection. 2. The inference of neg may be dispelled by an affirmative showing of proper care. 3. If the evidence v the fact inferred is clear, pos, uncont, and of such a nature that it cant rationally be disbelieved, the ct must instruct the jury that the nonexistence of the fact has been est as a MOL. 4. An injured person, owever, is NT ordinarily in a position to refute such evidence or ID the CODefect 5. Retailer, even though not equipped to test a prod, is under absolute liab to his cust, for implied warranties of fitness for proposed use/merch quality inc a warr of safety of the prod. Retailer cant bear burden much gained if injured person could base his action directly on the manufs warr! 6. The warranty of the manuf to the consumer in ABSENCE of privity of K rests on public policy! v. EXTENSION of the manuf war to consumer: 1. Warranty runs with the chattel 2. COA of the dealer is assigned to the consumer 3. Consumer is a 3rd party ben of the manu K w dealer 4. Mere fiction of neg know prod is fit or bear the consequences if it proves destructive 5. Manufs obligation to the consumer must keep pace w the changing r/s between them vi. Manufs liab should be defined in terms of the safety of the prod in normal/proper use;should NOT EXTEND to injuries that CANT be traced to prod as it reached the market. 5. Henningsen v Bloomfield Motors Inc NJ 60 A defect in the steering mechanism of a recently-acquired Plymouth caused the car to spin out of control, seriously injuring P driver. When a manuf puts a new car in the stream of trade and promotes its purchase by the public, an implied war that its reas suitable for use as such accompanies it into hands of ultimate purchaser. Absence of agency btwn manuf/dealer is immaterial! 6. Greenman v Yuba Power Prod Inc Cal 63 Ps wife bought from a retailer a Shopsmith power tool made by D. While using the tool as a lathe w the nec attachment, P was hurt when the piece of wood flew up and struck him in the forehead. Ps judg based on neg/express warranty AFFIRMED expert testimony; jury could have found neg/breach of war a. Warranty notice req should NOT apply when the P/manuf have NOT dealt directly w/ one another bc the injured ty would prob be unaware of such an obligation. 7. Vandermark v Ford Motor Co Cal 64 P bought a new Ford from D retailer. The brakes soon locked pulling the car to the right/into a pole.

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Expert testimony suggested a wrong-sized part/improper assemply/adj. TJ nonsuited P on both neg/breach of implied war v the manuf, Ford, and on a warranty count against retailer. JV for retailer on neg count Traynor UPHELD JV but REVERSED other 3 rulings Ford could NOT insulate itself by delegating final inspection and adj to retailer. a. Retailers disclaimer in the sales K LIMITED its liab to replacement of such parts; however, Traynor concluded tha the retailer is strictly liable in tort for PI caused by defects in cars sold by it. Contractual disclaimers IMMATERIAL. 8. Elmore v American Motors Corp Cal 69 P purchased a new Rambler manuf by one D and sold by the other. It veered across the road and into the oncoming car of Waters. Both were hurt/killed. Cases consolidated for trial, at which there was testimony that just before the crash the drive shaft had fallen out of Ps car. Nonsuits for both Ds were unanimously REVERSED evidence SUFF to permit a jury to find that the drive shaft did fall out due to defect @ time of sale and that it caused the crash. Bystanders entitled to SAME SL protections. [maybe even greater since they have NO OPPORTUNITY to inspect for defects; cars w/ def parts constitute a hazard to drivers, passengers, pedestrians, etc.] 9. Extension to others: a. Used goods sellers most cts DECLINED to impose SL on sellers of used goods even when the claim is that prod has had the defect in question since it was first marketed. i. Tillman Vance Equipment Co Or 79 Of the cts 3 reasons for SL spreading the risk, satisfying reasonable buyer expectations, and risk reduction ONLY the first applied dealers of used products. [second usually no reps about quality; third no direct r/s manuf/dist of goods] Could be liable for neg even if not strictly liable ii. Wilke v Woodhouse Ford Inc Neb 09 a commercial dealer of used vehicles has a duto conduct a reasonable inspection of the vehicle prior to sale in order to determine whether there are any patent defects making the car unsafe for ordinary operation. [applicable to other prod!] b. Succesors liability of successor corps for def prod marketed by biz BEFORE they were bought by the successor. i. PL Res 12 imposes liability on the successor if the acquisition a) is accompanied by an agreement for the successor to assume such liability OR b) results from a fraud conveyance to escape liability for the debts or liab of the predecessor, OR c) constitutes a consolidation or merger w the predecessor, OR d) results in the successor becoming a continuation of the predecessor. ii. Semenetz v Sherling & Walden NY 06 ct DECLINED to adopt a product line excep to the tradl successor liab rules based on CONCERN about impact on small biz owners 1. If successors were liable for preds torts, the market for small biz would dry up; those biz would be forced to sell their assets piecemeal and then dissolve, thereby reducing the # of small biz. c. Other nonsellers inc a variety of suppliers and aid suppliers, inc commercial lessors.

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i. Kosters v Seven-Up Co 79 imposing SL on the franchisor for the franchisees defective design of a carton for carrying soda bottles where the franchisor consented to the use of that type of carton. ii. McKisson v Sales Affiliates, Inc Tex 67 SL has been imposed on comm sellers who GIVE PROD AWAY/free promo samples; breach of warr despite absence of sale. iii. Nath v Natl Equip Leasong Corp Pa 81 RELUCTANT to apply the doctrine to companies that finance purchases by others. REFUSING to apply SL in a suit by worker whose hand was injured in the machine his employer had financed through D. d. Irregular sellers SL has been limited to sellers who were in the biz of selling the prod involved. i. Sprung v MTR Ravensburg Inc NY 03 P sued the custom fabricator of a retractable floor installed in a large turbine assembly plant where P was employed. When trying to open the doors of the retractable floor, two panels of the floor came out and fell on P injuring him. Only sale of such a floor by D, held D was subject to SL as it was in the biz of des/const custom sheet-metal products. 10. Government contractors a. Boyle v United Technologies Corp 88 the family of a Marine Corps pilot who died when unable to escape from his downed helicopter before it sank, could NOT SUE the helis manuf alleging that the escape hatch was defectively designed. i. Private contractor who followed GOVT SPECS in making a product could not be held liable for inadequacies in the design as long as certain requirements were met. ii. PUBLIC POLICY: Interests of US directly affected! 11. Causation a. Litigants face difficulties in showing the causal conn btwn a defect/harm when the prod is badly damaged or destroyed. b. Enhanced injury situation, in which P usually sues over the lack of safety inside a vehicle that has been in an accident the lack of safety causing only more severe injuries than the P would have suffered from the accident alone. c. Trull v VW of America Inc NH 00 cts have either shifted the burden of proof or eased the P burden to prove the extent of the enhancement. i. When injuries are separate/divisible the P must show the enhancement. ii. When injuries are INDIV, once the P est the defect was a sub factor in producing damager over and above those that were prob caused as a result of the orig impact, the burden of proof shifts to the def to show which injuries were attributable to the initial collision and to the defect. d. Stahlecker v Ford Motor Co Neb 03 Ps alleged that a defective tire failed and rendered the car inoperable while female decedent was driving alone in a remote area. Ps claimed that DUE to TIRE FAILURE, a stranger was able to assault/murder P. HELD even if tire was def, the strangers acts negated PC. [PC limitations still apply in the strict PL area!]

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12. Emotional Distress a. Bray v Marathon Corp SC 03 P and a co-worker had worked together at the same plant for 15 years. While fixing a trash compactor made by D, the compactor malfunctioned and P saw his co-worker crashed to death inside the compactor. P was held to be a user bc he was pushing buttons to help fix the compactor. HELD - barrier to recovery for neg inflicted ED did NOT apply in PL cases where P was NOT a bystander but a prod user. 13. Enterprise Liability D is an enterprise, systematically engaged in generating the risks and has access to the mechanism of the market. Good target for the deterrence of the tort sanction liability is imposed in the quest for safety and accident prevention; a superior risk bearer ale to pass on the loss into channels of wide distribution. 14. R2T 402(a) PG. 568 P must demonstrate prod CAUSED the injuries and was in a DEFECTIVE COND UNREAS DANGEROUS to person/prop at the time it left Ds possession. 15. R3T 1 One engaged in biz of selling or otherwise dist prod is subj to liability for harm to persons/prop caused by the defect. Three types of defects a product: a. Contains a manuf defect when the prod departs from its intended design even though all possible care was exercised in the prep/marketing of the product b. Is defective in design when the foreseeable risks of harm posed by the prod could have been reduced or avoided by the adoption of a reas alt design by the seller or other dist, or a predecessor in the comm chain of dist, and the omission of the alt design renders the prod not reas safe; c. Is defective bc of inadequate inst/warning when the foreseeable risks of harm posed by the prod could have been reduced/avoided by the provision of reas inst/warnings by the seller or other dist, or a predecessor in the comm chain of dist, and the omission of the inst/warnings renders the prod not reas safe. b. Manufacturing Defects o Dangers are almost always latent; usually identified beforehand. o Welge v. Planters Lifesavers Co 94 P was hurt when a glass jar of peanuts smashed as he tried to re-fasten its plastic lid. The fragments of the jar were preserved and the experts agreed that it must have contained a defect but they could NOT FIND the fracture that had precipitated the shattering of the jar and they could not figure out when the defect had come into being.SJvP inapp o Defect developed BEFORE or AFTER the retail sale? o A seller who is subj to strict PL is responsible for the consequences of selling a defective prod even if the defect was intro w/o any fault on his part by his supplier or suppliers supplier o Price v GM Corp 91 Ps alleged their car suddenly swerved from the highway into a utility pole. The car had been inadvertently destroyed before major investigation could be conducted. SJ4D even if the vehicle leaked power steering fluid, the leak could as well have been due to inadeq maintenance, improper repairs or defective non-GM parts. [bough used] o Failure to preserve the product is NOT always fatal to Ps case if there is ENOUGH EVIDENCE of the MALFUNC to permit an INFERENCE of defect o Daniels v. GNB, Inc. Miss 93 Ps testimony about exploding 2 mths old auto battery/expert who said that Ps version of the accident, if accurate, was consistent w a prod defect, SUFFICED to withstand SJ.

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c. Design Defects o Cronin v J.B.E. Olson Corp Cal 72 a bakery truck driver was injured when, in a crash, the trays came fwd and struck him in the back. Judg for P. Unreasonably dangerous in 402(a) meant proving that there was a defect in the manuf or design of the prod and that such defect was a PC of the injuries. o DECLINED to req an injured person to est that prod is unreas dangerous as a req to recovery for injuries in a SL des def context! o Barker v Lull Engineering Co Cal 78 P was hurt when the high-lift loader he was operating overturned on a slope. Loader was not equipped w outriggers that would have provided additional stability as a load was being lifted. Ct reversed a defense judg bc TJ used the unreas dangerous lang in the charge to the jury [pre-Cronin] o Court found ERROR in the TJs lim of liab to situations in which the prod was used in the intended manner. Appropriate lim phrase intended or reasonably foreseeable manner o Show defective design by: Demonstrating prod failed to perform as safely as an ordinary consumer would expect when sued in an intended and reasonably foreseeable manner. Demonstrating if through hindsight the jury determines that the prods design embodies excessive preventable danger, or, in other words, the risk of danger inherent in the challenged design outweighs benefits of such design. Jury should consider: Gravity of the danger posed by challenged design Likelihood that such danger would occur Mechanical feasibility of a safer alternative design Financial cost of an improved design Adverse cons to the prod/consumer from alt design D BURDEN of prod evidence/proving to trier of fact prod NOT def! o Soule v GM Corp SC Cali 94 Ps ankles were badly injured when her GM car collided w/ another vehicle. She sued alleging defects allowed its left front wheel to break free, collapse rearward and smash the floorboard into her feet. GM denied defect and claimed that the force of the collision itself was the SOLE CAUSE of her injuries. Judg for P. o Issues: May a prods design be found defective on grounds that the prods performance fell below the safety expectation of the ordinary consumer if the question of how safely the prod should have perf cannot be answered by the common experience of its users? TC erred in ordinary consumer expectations instruction in this complex case but error was harmless. [P cant reas expect car to remain intact in any and all accidents] Ordinary consumer expectation P req to show 1) the manufs prod failed to perform as safely as an ord consumer would expect, 2) the defect existed wheh pr left the manufs possession, 3) the defect was a legal cause of Ps enhanced injury, and 4) the prod was used in a reas foreseeable manner. o Jury found Camaro contained defect of unspec nature which was a legal cause of Ps enhanced injury. P at fault for not wearing a seatbelt but not the legal cause of her injuries. o Ordinary know as to prod not perf as it should + result of prod design finding of defect is WARRANTED w/o further proof

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Manuf may NOT defend a claim that a prods design failed to perform as safely as its ord consumers might expect by presenting expert evidence of designs relative risks and benefits. o A complex prod, even when it is being used as intended, may often cause injury in a way that does not engage its ordinary consumers reas min assumption about safe performance. (EX: CARS!) o Where the min safety of a prod is w/in the common knowledge of lay jurors, expert witnesses may NOT be used to demonstrate what an ordinary consumer would or should expect. Expert testimony would invade the jurys function & circumvent the rule the risks and benefits of a challenged design must be carefully balanced whenever the issue of design defect goes beyond the common experience of the prods users. o However, unless the facts permit an inference that the prods perf did NOT meet the min safety expectations of its ordinary users, the jury MUST engage in BALANCING of risks/benefits req by 2nd prong of Barker o Complicated design considerations ord consumer exp IMPROPER Campbell v GM Corp Cal 82 a bus passenger was thrown from her seat and injured during a sharp turn. She claimed defective design bc there was no grab bar w/in easy reach of her seat. P presented no expert evidence but did present photos of the interior of the bus. HELD enough for P to show the obj cond of the prod so that the jurors could employ THEIR own sense of whether the prod meets ordinary expectations as to its safety under the circ presented by the evidence. o Public trans is a matter of COMMON EXP NO expert testimony req to enable jury to reach a decision on this part of the Barker inquiry Pruitt v GM Corp 99 P was hurt when an air bag deployed in a low impact collision. Judg for D REFUSAL to charge on ord cons exp test bc the deployment of an air bag is, quite fortunately, NOT PART of the EVERYDAY EXPERIENCE of the consuming public. Min safety standards are not w/I the the common knowledge of lay jurors NEED FOR EXPERT TESTIMONY to evaluate the risks and benefits of the challenged design. Morton v Owens-Corning Fiberglass Corp 95 a former insulation installer sued asbestos suppliers after contracting mesothelioma- a cancer of the lining that surrounds the lungs. P succeeded before the jury on a consumer expec approach. HELD consumer expec test APPLICABLE; question was whether the circ for the prods failure permit an inference that the prods design performed below the legitimate, commonly accepted min safety assumptions of its ord cons. Reasonable Alt Design (RAD) R3T 2 P must prove that a reas alt design would have reduced the foreseeable risk of harm. Sometimes the feasibility of a RAD is obvious/understandable to lay persons expert test unnecessary to support a finding that the proud should have been designed diff/more safely. o Other prod in market may serve SIM FUN @ LOWER RISK/COMP COST o In det whether AD is reas & whether omission renders prod not safe: Magnitude/probability of the foreseeable risks of harm Instructions/warning accompanying the product Nature/strength of consumer expectations regarding the product Expectations arising from product portrayal/marketing Advantages/disadvantages of the product and its proposed alt Impact on prod costs an product longevity, maintenance, repair and esthetics, and range of consumer choice among products Unrein v Timesavers, Inc. 05 P was injured by an industrial sander when she reached into it to dislodge two boards that were stuck together. Her hand got caught in the nip pint, and the machine drew her arm in up to her elbow. Her o

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expert provided an alt design; safety trip cords of widespread use Ct affirmed TCs EXCLUSION of experts testimony on Daubert grounds, stating he did not prepare drawings showing how it would be integrated into the sander or present photos showing its use w/ sim machines. o Other cases have cited a failure to build/test a prototype of the alt design in support of a decision to rule inadmissible the testimony of an expert about a RAD Dreisonstok v. Volkswagenwerk, A.G. 74 P passengers were hurt when the microbus in which they were riding left the road and ran into a tree. One distinctive feature was that its passenger compartment was at the very front of the vehicle. Ps neg claim alleged that the design was defective bc it provided less protection than that available in a standard American vehicle. Ct reversed judg for P microbus to be compared ONLY w comparable vehicles [ex: convertibles cant protect like standard cars] o D unrefuted testimony that the safety was =/> other vehicle of LIKE type. o Price is also a factor to be considered if a change in design would appreciably add to cost, add little to safety, and taken an article out of the price range of the market to which it was intended to appeal unreas and impractical for cts to req the manuf to adopt such change o If not DUTY to adopt such a design o In a crashworthy cae, it is necessary to consider the circ of the accident o Balancing factors in order to det whether the manufacturer has used ordinary care in designing a car, which, giving consideration to the market purposes and utility of the vehicle, did NOT involve unreas risk of injury to occupants w/in the range of its intended use. Bittner v American Honda Motor Co Wis 95 P was hurt when his 3-wheel ATV overturned going around a corner on a mowed grass path. Honda was properly permitted to compare safety records of this ATV w/ other prod intended for similar purposes to suggest that accident was more likely due to operator. Honda SHOULD NOT have been allowed to intro evidence about the risks of DISSIMILAR PROD/ACTIVITIES to show that ATVs werent unreas dangerous. Manufs obligations persist whether or not the prod has a high rate of injury associated with it. The Irreducibly Unsafe Products dangers are known and often great, but for which there are NO RADs. o OBrien v Muskin NJ 83 P was hurt when he dove into an aboveground swimming pool tha was properly filled with 3.5 ft of water. TJ submitted a warning claim to the jury JV4D. TJs refusal to submit a design defense claim was REVERSED TJ shouldve permitted the jury to consider whether risks/utility as to constitute a defect! Even if there was NO RA, recourse to a UNIQUE design is more defensible. Evaluation of the utility of a product also involves the relative need for that product. [dangerous + no alt + very little use manuf should bear the cost of liability of harm to others! [public policy: cost my dissuade a manuf from placing the prod on the market, even if made as safely as possible.] DISSENT: no matter how dangerous a prod may be, if it bears an adeq warning, it is FREE from design defects if there is no RAD. PROBLEM manuf insulate from liab by simple warning o Baughn v Honda Motor Co Wash 86 REJECTED OBrien. HELD manuf of mini-trail bikes could NOT be held liable for injuries suffered when the bikes were used on public roads in disregard of explicit

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warnings against such usage. Go to jury to weigh risk/utility? NO the prod was NOT DEFECTIVE as MOL when warnings adeq followed. o R3T liability may flow even if a product has NO RAD if its value is deemed to be minimal. o Some courts have imposed liability for generic products w a manifestly unreasonable design. [EX: prank exploding cigars] Camacho v Honda Motor Co Ltd Colo 87 In an intersection accident w a car, P suffered severe leg inuries. P and wife sued parties in the chain of dist, claiming that the absence of crash bars to protect the legs made the prod defective under a SL analysis. They were available from manuf other than D, provided protection and would have reduced/completely avoided the serious leg injuries. TC granted Ds SJ; REV/REM factual conc reached by experts are in dispute SJ as to whether design strat were reasonable is IMPROPER. o DISSENT: What test should apply in det whether a prod has a design defect causing it to be in a def cond that is unreasonably dangerous? 402as Cons Contemplation Test the article sold must be dangerous to an extent beyond that which would be contemplated by the ord consumer who purchases it, with the ordinary know common to community as to its characteristics P aware that bikes are dangerous; choice to purchase other bikes by other manuf; elected to purchase this manuf Variation: Knitz v Minster Machine Co Ohio 82 prod is of def design if 1) it is MORE DANGEROUS than an ord consumer would expect when used in an intended/reas foreseeable manner, or 2) if the BEN of the challenged design do NOT outweigh inherent risk. Rejected: Prentis v Yale Mfg Co Mich 84 Pure negligence, risk utility test in PL actions against manuf of prod, where liab is predicated upon defective design. o Roberts v May Colo 78 - crashworthiness doctrine: a MV manuf may be LIABLE in neg/SL for injuries sustained in a MV accident where a manuf/design defect, though not the cause of the accident, caused or enhanced the injuries. Honda could have provided crash bars at an acceptable cost w/o impairing the bikes utility/sub altering its nature. Failure to do so rendered vehicle unreas dangerous under danger-utility test. o Larsen v GM Corp 68 manufs duty encompassed designing and bldg. a prod reas fit and safe for its intended use, that automobiles are intended for use on the roadways and that injury-producing collisins are a freq, foreseeable, and stat expectable result of such normal use DUTY to use RC to MIN the injurious effects of a foreseeable collision by employing COMMON-SENSE SAFETY FEATURES. o Not req to provide absolute safety, but merely to provide some measure of REAS, COST-EFFECTIVE SAFETY in the foreseeable use of prod. o Union Supply Co v Pust Colo 78 REJECTED Cronin; however, dangers of a prod that are open/obvious does NOT constitute a defense to a claim alleging that the prod is unreas dangerous. [obvious foreseeable consumer contemplation test] INAPPROPRIATE consumer justified in expecting a prod placed in SOC is reas safe for its intended use, and when a prod is not a PL action may be maintained!

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CONTRAVENES PUB POLICY encourages design strategies which perpetuate the manuf of dangerous products o Ortho Pharm Corp v Heath Colo 86 exclusive reliance upon consumer expectations is a particularly inapprop means of det whether a prod is unreas dangerous under 402a where both the unrea of the danger in the design defect and the efficacy of alt designs in achieving a reas degree of safety must be defined primarily by tech, scientific information. Manuf of these complex prod have greater access to info necessary to reach informed decisions concerning efficacy of potl safety measures. Law of PL developed to encourage manuf to use info from testing, inspection, and data analysis to help avoid prod accidents In balancing the attendant risks/benefits of a prod to det whether a prod design is unreasonably dangerous, cts should consider: The usefulness/desirability of the produtility to user/pub The safety aspects of the prod-likelihood cause injury & probably seriousness of the injury The availability of a sub prod which would meet same need and not be as unsafe The manufs ability to elim the unsafe char of the prod w/o impairing its usefulness or making it too expensive to maintain its utility The users ability to avoid danger by the exercise of are in the use of the product The users antic awareness of the dangers inherent in the prod and their avoidability bc of gen public knowledge of the obvious condition of the prod, or of the existence of suitable warnings/instructions The feasibility, on the part of the manuf, of spreading the oss by setting the price of the prod or carrying liability ins. o Voluntary Product Standards o Robinson v G.G.C. Inc Nev 91 P was an employee of a supermarket. While working on Ds box crushing machine, his hand was caught in the mechanism. The machine inc a removable safety screen that prevented foreign obj from intruding on the crushing mechanism, but the screen ould be removed and the machine operated w/o it as occurred w/ P. A vol assoc had a standard for such machines REQ an interlock that prevented operation when the point of operation guard was removed. HELD standard ADMISSIBLE even though not promulgated until after Ds machines had been designed and sold. d. Safety Instructions & Warnings Damages [p. 710-760] a. Compensatory Damages b. Punitive Damages

IX.

Goal of the Tort system -Compensation - Optimal Deterrence: the greatest amount of accident avoidance at the best cost -Fairness Hammontree v. Jenner -Elderly man has epileptic seizure while driving his care- crashes into Hammontrees store -Hammontree wants jury to have a charge that would have them make a decision in which they

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treated the defendant as if he were a manufacturer of a product, or a product himself. -Midway the plaintiffs council shifted their strategy from negligence to strict liability. They withdraw claim of negligence. -Problem is that Jenner was a good Defendant- he had taken every possible precaution to ensure that his driving would not impose a danger. -Court says he met his duty, and therefore he cannot be held strictly -Strict liability cannot apply when sudden illnesses strike a driver rendering him unconscious -Fault is the central distinction between negligence and strict liability Respondeat Superior- rule that the principal is responsible for tortious acts committed by its agents in the scope of their agency or authority. Vicarious Liability- The imputed liability of one party for the unlawful acts of another. -Forces employers to take greater care in selection of employees -Deep pockets -May promote fairness by distributing costs across society In order to be held vicariously liable the employee must have been acting within the scope of employment. The Birkner criteria are used to determine whether or not an act is within or outside the scope of employment: -1. Employee must be about the employers business and the duties assigned by the employer -2. Conduct of employee must occur within hours and ordinary spatial boundaries of employment (Remember that spatial boundaries can be defined differently) -3. Employees conduct must be motivated, at least in part, by the purpose of serving the employers interests Christenson v. Swenson -Security guard got into accident while driving to a restaurant during work hours - Court determined that trial court was wrong in granting summary judgment for the employer -According to the court a review of record revealed that reasonable minds could differ on all three criteria. Reversed and remanded. -Difficult to fit all three aspects of vicarious liability into defined categories Independent contractor exemption to respondeat superior -This exemption does not work, when a plaintiff can prove apparent agency -See below- Roessler

Roessler v. Novak Independent Contractor exemption to vicarious liability (respondeat Superior) - Plaintiff argues that the radiologist had apparent authority/ agency b/c he did not have a choice of whether or not to use his services while in the emergency room o Criteria for Apparent Agency Representation of the purported principal (primary employer) Reliance on that representation by a third party Change in position by the third party in reliance on the representation - Does having an independent contractor not seem logical for an economically rational hospital that has so many operations to oversee - Fact intensiveness makes determination of apparent agency difficult to make Baptist Memorial Hospital Services v. Samson- Note 1, pg 28

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Court affirmed summary judgment for hospital in a suit of apparent agency, b/c hospital posted signs and had patients acknowledgement waivers that the ER doctors were Indep. Contractors

Farewell v. Boston and Worcestor RR.- note 4, pg 39 - Fellow Servant Doctrine: Employer not liable for the negligence of one employee towards another Elements of a Negligence Claim Generally: The tort of "negligence" occurs when Ds conduct imposes an unreasonable risk upon another, which results in injury to that other. The negligent tortfeasors mental state is irrelevant. AN OBJECTIVE STANDARD Prima facie case: The components of a negligence action are: 1. Duty: A legal duty requiring D to conduct himself according to a certain standard, so as to avoid unreasonable risk to others; 2. Breach of Duty: A failure by D to conform his conduct to this standard. (This element can be thought of as "carelessness.") (or breach of duty) 3. Causation a. Actual cause. The breach of the duty by the defendant was the but for cause of the plaintiffs injury b. Proximate Cause. The breach of the duty by the defendant constituted the proximate or legal cause of the plaintiffs injury 4. Actual damage: Actual damage suffered by P. (Compare this to most intentional torts, such as trespass, where P can recover nominal damages even without actual injury.) note important to distinguish the tort of negligence from the second element can be negligent without being liable for negligence if the damages or causation elements are not met. Brown v Kendell (Supr. Ct. Mass 1850): New trial was ordered to allow P to evidence that D acted without ordinary care 1. Guy hits Brown in the eye with a stick, plaintiff sues in trespass 2. First case to say that there could be non-liability for damages incurred by an unintentional lawful act, if that act was executed with the same degree of caution as would a prudent person trying to avoid danger a. Shifted burden of proof to P to show absence of prudent care b. Created ordinary standard of care (that a prudent and cautious person would use) given the circumstances (standard does not vary with circumstances) i. Switch from extraordinary duty of care to ordinary made it harder to prove liability ii. Narrowed idea of intent Standard of Care Adams v. Bullock- (C.A of NY, 1919) Defendant had taken all necessary precaution No duty on defendant to abandon trolleys in order to safeguard against this injury Jury verdict reversed Insulation of trolley wires is impossible, although Cardozo writes: Facility of protection

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may impose a duty to protect Cardozo says: Facility of protection may impose a duty to protect. Braun- Cited in Adams v. Bullock- note case pg 42 - After the lower courts dismissed the complaint, the court of appeals reversed and remanded for new trial -Wires had not been inspected in 15 years -Cardozo finds that the defendants could have foreseen that a building would be built on the site Greene v. Sibley, Lindsay and Curr. Co. (NY 1931)- note case, pg 42 -Woman stumbled over repair man in a store -Court says: Defendant did not need to exercise extraordinary care, but only ordinary Care In all cases ORDINARY CARE IS THE QUESTION HAND FORMULA U.S. v Carroll Towing Co.: trial judge as a fact finder divided damages between the P, whose bargee did not remain on ship to catch incident, and D, whose servants had negligently caused ship to break free, be punctured, and lose its flour Trial court said that bargee was not liable b/c of custom and foreseeability Judge learned hand did not accept this, and had to overcome the precedent showing that bargee was not responsible to be on boat at all times -Hand Formula developed as a way to overcome this -If burden of precaution is less that the magnitude of loss times the probability of accident, then the defendant is liable if he does not take the precaution -B< PL If B> PL then an economically rationale actor may just want to pay the tort costs, verses taking precautions

Why is the Hand Formula approach preferential? - Cost/Benefit analysis gives actors the ability to spend the right amount of money on safety Rigorous cost/benefit approach may better defend peoples rights than intuitive decisions of judges alone- constricts judges Economic rationale in tort law can be very helpful when you are concerned with hindsight bias - Cons of Hand Formula How do you quantify all of the information? o It is very expensive to compile statistics o -f expensive date is collected, but the judgment does not award costs, you just lost money 2nd Problem with Hand Analysis- Incomparability - Incommensurability- Even if complete and expensive info is available- the variables are not comparable Judges sometimes instruct Jurys on three factors - Incomparability - Hindsight

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What should have taken place- although very difficult to judge after (Posner)

ORDINARY CARE- REASONABLE PERSON STANDARD Justifications for the reasonable person standard 1. Administrative Ease 2. Avoidance of Fraud 3. Deterence 4. It is believed that a reasonable person standard makes other people we meet act with a predictable measure of care 5. It is easier for a Jury to measure and objective standard Note: We are more protective of physical disabilities then mental ones - Even Insane people are held liable for their torts Bethel v. New York Transit Authority - Plaintff sues NY Transit after a handicap seat collapses under him - Sues under theory of constructive notice- Since they fixed it they must have know it was broken - Absolves common carrier from duty of extraordinary care now found subject to the same duty of care as any other potential tortfeasor: reasonable care under all of the circumstances of the particular case. Wood v. Groth- (Kansas 2000)Note 2, pg 52 -Plaintiff appealed after ruling for defendant in case where he was shot after the defendants 15 year old son used a screwdriver to open a gun case - Court agreed that the jury should have been instructed on highest degree of care in safekeeping the handgun, because ammunition was located in the same case as the gun Vaughan v. Menlove- (1837)- note 7, pg 55 -Defendant piled hay in such a way that created a fire for plaintiffs App ct reversed TC rule nisi that gave the jury Ds bona fide good judgment standard of care instructions regarding his maintenance of a hay stack that ignited; D was claiming stupidity as a special circumstance 1. established objective ordinary prudent care standard in England (like Brown did in the US- no intent liability) based on intentional tort preceden Argued that each persons subjective judgment cannot be evaluated to determine reasonable care 2. App Ct must assume facts from TC: ie. App Ct had to assume that D could not be held to ordinary prudent care standard b/c TC had already decided that he failed despite his best (stupid) judgment Liability might not deter misconduct (if D is in fact too stupid to be deterred), but at least it will compensate P Bashi v. Woodwarz (CALIF. 1996) Note 9, pg 57 -Defendant claims that she left the scene of the accident, after hitting a car because of moment of insanity -Court says it is too hard to draw line between stupidity and insanity -4 justifications by court: 1. Hard to determine line between mental deficiency and variations of temperament 2. Too difficult really makeup out if a person is insane

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3. Mental defectives should pay for losses, rather than keep that money if they are allowed to live in the world 4. Expectation that liability will stimulate those who have charge of them or their estates to look after them, keep them in order, and see that they do not harm. Roberts v. Ramsbottom (1979) note 8, pg 56 -Old man had a stroke while driving and hit a victim - Man did not know he was unfit to drive -Court does not want to draw really fine line, but holds defendant liable, b/c absent of loss of consciousness, he was responsible for failing to appreciate the significance of his prior mishaps Baltimore and Ohio Railroad Co. v. Goodman: He knows that he must stop for the train, not the train stop for him When the standard is clear it should be laid down once for all by the Courts. (takes question of due care from the jury) - S. C holds that plaintiff was negligent so it should not have gone to a jury - Holmes arbitrarily sets out rule: Stop, get out, and look - But we are dealing with a standard of conduct, and when the standard is clear it should be laid down once and for all by the courts- plaintiff should have acted with ordinary care -Holmes is concerned with uniformity