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Tort Goals

-Rationales and Goals (think! rights based approach v. tort as instrument approach) 1) Corrective justice = rights based idea, restore the moral balance 2) Civil recourse = focus on what ! should receive and societal recognition of harm. 3) Deterrence ( discourage self help ) = prevent future torts. 4) Loss Spreading = spread loss to society through " / Least cost avoider (avoid accident cheaply) 6) Redress = Tort as populist mechanism/weapon against the man. 7) Allocatively efficient, but not distributionaly fair?

Battery - Assault [offensive contact or threat of offensive contact]

-Intent to Act, -Intent to Act Unlawfully, -Intent to Act with Substantial Certainty of harm. -Intent to Harm.
Vosberg v. Putney

Is a boy1 liable for injuries that resulted when boy1 poked boy2s knee with his foot, under the table in a classroom.

Yes. Boy1 is liable for battery. Boy1s poking disturbed school decorum, his actions displayed an intent to act unlawfully. Because they were in a classroom NOT a playground there is no implied consent. Tort-feasors take their victims as they find them, egg-shell skull rule, Boy1 is liable for Boy2 losing his leg.

Garrat v. Dailey

Is a boy liable for injuries that resulted when the boy moved old-womans chair while she was sitting down? Is a Dr. liable when the patient consented to an operation on patients right ear, however, during the operation, Dr. thought it was more necessary to operate on the left ear. Is a Dr. liable to a patient where the patient became paralyzed after falling during recovery and Dr. did not disclose the risk of paralysis.

Yes. Boy is liable for battery. Removing the chair creates a situation where it is substantially certain that harm will occur. Intent to act with substantial certainty that harm will occur. Yes. Dr. is liable for battery. Patient did not give express or implied consent for operating on the left ear. People have an absolute right to immunity from physical interference. Even though Dr. did not intend to act unlawfully, he intended to act, and the act is itself unlawful. Yes, Dr. is liable for Battery. People have an absolute right to determine what is done with their body = opportunity to know and evaluate risk Dr. must disclose risk that a reasonable person in patients position would find significant to patients decision. EXCEPT: emergency and when disclosure would threaten the patients well-being.

Mohr v. Williams

Intent to Act w/o consent.

Cantebury v. Spence


Consent [ Tortfeasor claims Victim allowed the offensive contact ]

Types: Express - Implied - Emergency - Transferred.
Kennedy v. Parrot

Is a Dr. liable to a patient when during the course of an operation Dr. discovered unknown hazardous cysts and removed them.

Not liable for battery. This is different from Mohr v. Williams b/c the cysts were in the same vicinity, w/i scope of original operation and consent and unable to obtain pre-operative consent. Also, we can infer implied consent b/c: cost/benefit of putting patient through 2nd operation. Emergency consent = exception to absolute right to determine what is done to body.

Schloendorff v. NY Hospital

EXCEPTIONS to Consent [ consent is prohibited ]

- Protected Classs cant consent. - No Consent to illegal activities. - Mentally ill are strictly liable (caretakers dont consent)
Hudson v. Craft

Is a boxing promoter liable for injuries a boxer suffered during an unlicensed prize fight?

Yes, promoter is liable for battery. Statute requires licenses for all fights. Goal of statute is to protect boxers are protected class. Boxer cant consent to the type of unlawful activity that the statute is designed to protect boxers from. Majority rule: no consent to unlawful acts. Recovery between two fighters is okay (disincentive fighters from beating up opponent too badly) Minority rule: Volenti / pari delicito (volunteer + equal fault) No recovery for fighters.

Barton v. Beeline

Girl consented to a -Company of raping employee is not liable. statutory rape and sued -No compensation for consenting to illegal activity. company? - Perverse incentives problem. Is Mental-Patient liable for hitting Nurse with table leg? Yes, mental patient is liable. Assume that the mentally-ill intended to cause harm. Concerned with perverse incentives, prevent people from fraudulently claiming insanity to avoid tort liability. Induce caretakers to pay closer attention. Also, corrective justice concerns that a man should be liable for the harm he causes.

McGuire v. Almy

Self Defense Claims [ defenses to a claim of assault or battery ]

- Reasonable belief and actions reasonable intended (proportionate force) to provide defense.
Courvoisier v. Raymond (Police officer sues storeowner for shooting him) Morris v. Platt

Is a storeowner liable when the storeowner chased burglars outside and the burglars threw rocks at the storeowner and the storeowner shot a non-burglar (police officer) who approached. Is " liable for injuries to ! (bystander), when " trying to protect himself from a 3rd. party assailant.

Not liable for battery. The storeowner could have reasonably believed that the police officer was a burglar and about to assault him.

Not liable for battery to bystander. The "s actions were reasonably intended to provide a defense against the assailant, not liable for injuries to a bystander. Yes, property owner is liable for battery to trespasser. There was no notice, unlike spikes on the wall, ! didnt have chance to calculate danger. The owner cant indirectly do something which he is directly prohibited from doing. If ! entered the garden while " inside, " could not have shot him. Self-defense actions must be reasonably intended to thwart the threat, no-indiscriminate spraying.

Bird v. Holbrook

Is property owner liable to a trespasser when owners springgun injured trespasser who entered owners yard to retrieve a ball.

Self Defense to Property

Reasonable belief that property will be harmed and use necessary, proportionate force. -BUT preferred remedy is go get injunction.

Trespass to Land - Trespass to Chattels

(1) Trespass to land = physical invasions [ non-physical invasions = Nuisance Doctrine ] (2) Trespass to Chattels = substantial interference with personal (non real) property. - MUST show substantial harm -Use Self Help Remedy if the thing is moveable, move it to avoid interference. Dougherty v. Stepp: Unauthorized entry is trespass to property.
Rylands v. Fletcher

Is neighbor1 liable to neightbor2 when neighbor1 built a dam and reservoir on his land; and water escaped flooding neighbor2s land?

Yes. Neighbor1 is liable for trespass. MAJORITY: Different from negligence cases b/c " imposed a uni-lateral risk. ! didnt know about the risk and was unable to protect against it. Unnatural usage of the land. People that accumulate harmful things should be strictly liable for harm those things cause. Escaping things doctrine. Maxim: Sic utere tuo ut alienum non laedas Use property in such a way as to not harm anothers property.

Blondell v. Consolidated

Is Homeowner liable to Gas-Company for putting governor on the meter?

Homeowner is liable for Trespass to Chattels but really Land. Gas meter is immoveable, no self help remedy available to Gas-Company.

- 3 Types of Trespass Regimes

Intel v. Hamidi

Is Hamidi liable for Trespass when Hamidi used Intels computers to send inflammatory messages about Intel?

Hamidi is not liable. No interference with possession or interest = loss in productivity does not substantially harm (no harm at all) to computer (property). 3-Types of Property Regimes (for Trespass) (1) Forced Closed: obtain advanced permission (2) Forced Open: free range, no barriers. (3) Default open: permission until withdrawn.

Nuisance Doctrine [ RST: non-physical invasion of land ]I

- Nuisance [ SL regime but really just Global Negligence ]
(1) Continuation of action w/ knowledge of annoyance. (2) Unreasonable annoyance: (a) Harm outweighs benefit [BPL Global Negligence] or (b) Harm is super serious, regular negligence wont deter behavior [Pure SL theory].

Traditional Remedy = injunction (force stop to activity)

Problem: drawing distinction b/w light pollution from baseball field or Christmas lights?
Rogers v. Elliot

Liable for nuisance to extra sensitive person? Church ringing bell, effecting diease.

Ringing bell is not nuisance. # is extra sensitive persons. Tension w/ Egg-Shell skull rule (take ! as you find him)

- Coming to the Nuisance [ impose injunction to eradicate nuisance or not ]

Ensign v. Walls (new houses next to dog breeding biz) (1) Majority: " cant persist operating the nuisance in the face of changing times. (2) Minority: ! assumed the risk by moving in, " there first, use injunction to prevent more people. Boomer v. Atlantic Cement (cement plant, w/ slight dust damage to ! but " biz is cash money baby). (1) Rule: Impose permanent damages (punch and pay regime) (Forced Necessity Doctrine) Alternate Remedy = purchase

injunction, injunction against " and ! compensates for loss.

Conversion [ offense to legal interest in property ]

Example: A - B - C If: B steals As property = Trespass If: C steals As property from B = Conversion
Poggi v. Scott

Is Bldg-Owner lible to Wine-Owner for Conversion when WineOwner rented space from a tenant in the building and Bldg-Owner paid to have basement cleaned out and WineOwners casks were removed?

Bldg-Owner is liable. A-B-C= C sold As property to B = Conversion B took As property = Trespass Conversion = offense to legal interest in property ownership = exercise of dominion over property. Bldg-Owner sold barrels that he had no legal right to sell. A-B-C= B steals As property = Trespass C steals As property from B = Conversion

Maye v. Yappan

Is Miner liable to Miner is liable (must return gold) but landowner must pay Landowner when extraction cost. Landowner told Miner the land was Miners and Problems w/ Conversion = Force Sale Doctrine Miner found gold but the (1) Perverse Incentives = landowner is freeloading land actually belong to from miners risk. Landowner? (2) Value added: " putting value into stolen property. Ex. " takes a block of marble that belongs to ! and carves it into a sculpture. " must given # the sculpture.

Necessity Doctrine [ Defenses to Trespass ]

(1) Public Necessity = overt risk to property of many people by damaging !s property. Absolute Privelege (2) Private Necessity = risk only to "s property [ Necessity Doctrine invoked to defend Trespass claim but still liable for damage to " ] Conditional Privilege.
Ploof v. Putnam

Is a dock-owner liable when the dock-owner unties a ship that parked at his dock, without his permission, during a storm?

Yes dock-owner is liable for trespass to the trespassing ship. In the event of necessity (reclaiming cattle or road obstruction) a trespasser is given privilege or right to trespass. Privilege is based on an idea of implied consent, if the landowner was present he would have allowed the access to his land. The landowner does not have a right to interfere with privilege and undocking the ship is a trespass against the ship-owner.

Vincent v. Lake Erie

Is Boat-Owner liable to Dockfor damage the boat inflicted on the dock during a storm?

Yes, Boat-owner is liable for intentional tort. Majority: incomplete privilege, boat sh Ship-owner used the dock-owners property as a shield. The ship-owner replaced broken ropes and tied the ship down with stronger cables. Similar to Garrat v. Dailey the ship-owner intended to act and it was substantially certainty of harm occurring. Minority rule: the dock-owner is the cheapest cost avoider and the party best able to distribute the cost of the damage. (higher insurance rates, higher dock fees)

Negligence (Breach of Duty)

(1) Universal Duty to exercise reasonable care not to injure others. (2) Negligent breach = [ reasonable person standard , BPL, Custom, Statutory Violation ]
Scott v. Sheppard

Is a fire-cracker thrower1 liable for damages when throwers2,3,4 tossed the firecracker around a market and thrower4 struck ! in the face?

Majority Rule: Yes: the natural consequence of "s actions was injury to someone and the other throwers continued the original force. Similar to Vosberg v. Putney: intent to act unlawfully. Minority Rule: not liable. Throwers2,3,4, were independent, autonomous actors or free agents that interrupted and re-initiated the motion. Not continuous motion from " to !.

Brown v. Kendall

Is a dogfighter1 liable for trespass injures when dogfighter1 attempted to separate two dogs by swinging a stick and in the backswing, hit dogfighter2 in the eye?

Not liable. Old rule is incorrect, difference between case and trespass (consequential v. direct harm) is NOT the standard for trespass. The harm is direct but # must show: (1) " intended to act unlawfully or (2) " failed to use the ordinary care that a cautious and prudent person would exercise under the circumstances. Not liable. Neighbor1 is not liable because Neighbor1 exercised reasonable care. MAJORITY RULE: Negligence is required for liability in damage to property. Demands of modern society require that people forfeit some rights; exclusive property rights are a hindrance to development Neighbor2 is compensated by overall social welfare and right to do the same thing. MINORITY RULE: no liability creates a perverse incentive against manufactures taking extra preventative care. Corrective justice problem = Injured party not compensated. Cost spreading problem = injured party bears entire cost and manufacturer is best able to cost spread.

Losee v. Buchannan

Is Factory-Owner liable to Neighbor if Factory-Owners boiler exploded and damaged Neighbors property?

Brown v. Collins

Is a Carriage-Driver liable to a PropertyOwner when the Drivers horses were spooked by an oncoming train and ran the carriage into the Owners fence.

No, Carriage-Driver is not liable. Applied Losee v. Buchannan to overturn the escaping things doctrine of Rylands v. Fletcher. Property owner not liable unless he acted negligently. Hypothetically everything brought onto property could damage someone elses property. Rights are not absolute, strict liability prevents progress and development in the industrial era.

Powell v. Fall

Is a Railroad liable to a Property-Owner when sparks from a train engine lit PropertyOwners hay on fire?

Yes, Railroad is liable. (Strict Liability) but MINORITY RULE: Vaughan v. Taff Vale Statute (Locomotive Acts) = operators of nuisance engines can be held liable for consequences. Consequences can be defined as dangerous engines. Cost Internalization of Negative Externalities - Match cost to profits When Profit (generated by machine) > Damage (machine causes): compensate injured parties. If Damage > Profit: stop use, bad for society.

Bolton v. Stone

Is a Cricket Club liable to a Neighbor when a player hit an abnormally long shot out of the park and onto Neighbors property and struck Neighbor?

Not liable for negligence. Reverse trial ct. ruling that b/c a ball had been hit on the street before the danger was foreseeable and the Cricket Club imposed a unilateral risk (Rylands). Reject foreseeability and use negligence standard Cricket Club did no fail to exercise reasonable care b/c: remote chance of injury and consequences of operating not too severe Cost v. Benefit: build higher fence or pay damage?

Individualized Reasonable Person Standards

(1) Foreseeability standard for people with: episodes of insanity; episodes of epilepsy (2) Stupid / Clumsy People are held to global reasonableness standard. (3) Children held to Child Reasonableness Standard BUT Elderly = global reasonableness standard. -UNLESS Child is engaging in adult activity. (4) Rescuers held to higher reasonableness standard. (5) Proposed reasonableness standards must be practical.
Breunig v. American Family Insurance

Is a TemporarilyInsane-Driver strictly liable to Driver2 when Temporarily-InsaneDriver had a mental episode while driving and hit Driver2?

Temporarily-Insane-Driver Not strictly liable. Semi-individualized negligence standard for temporary mental incapacity. Exception to McGuire v. Almy (insane strictly liable). Counter to Tort theory to hold Temporarily-Insane-Driver liable for unforeseen, uncontrollable conduct (no duty to exercise reasonable care to prevent harm from unforeseeable things). Unforeseeable = NOT breach of reasonable care. Temporary mental incapacity could be like physical incapacity due to heart attack. (suddenly stricken). Proper question = was it reasonably foreseeable that Driver1 would have an episode of insanity while driving given that last episode was five years ago.

Hammontree v. Jenner

Is an Epileptic-Driver liable to Driver2 when Epileptic-Driver had a seizure and crashed into Driver2 but Epileptic-Drivers last seizure was 14-years prior to the accident?

Not strictly liable, use negligence standard. Semi-individualized negligence standard for epileptic person (suddenly stricken, physical disability) Tort theory = no liability (duty) for unforeseeable, uncontrollable things. Necessary to determine whether seizure was foreseeable. If seizure while driving is foreseeable then Epileptic Drivers duty of reasonable care = NOT driving . . . . driving would breach duty.

Beyond Courts power to impose Strict Liability for auto accidents like SL for product defects, its a legislative function.

Vaughan v. Menlove

Is a Hay-Stack-Owner liable to a Neighbor when a haystack caught fire and burned down Neighbors house; Hay-StackOwner claims he wasnt smart enough to prevent the fire and used best of his judgment?

Hay-Stack-Owner is liable. No individualized negligence standard for stupid people (cognitive disability) Hay-Stack-Owner had been warned 5times; failing to take additional precautions = bad conduct. Best Judgment standard is infinitely variable, standard is: exercise the reasonable caution of a ordinary, prudent man. NOTES OPINIONs: problem is the difference between what " perceives as reasonable care and what jury perceives as reasonable care . . . . BUT whether the failure to exercise reasonable care is intentional or inadvertent (clumsy, stupid) the results of that failure are equally harmful.


Is an Elderly-Driver liable for hitting a Boy when Elderly-Driver had vision problems and the Boy jumped into the street?

Individualized negligence for youth but NOT agedness. Yes, Elderly-Driver is liable according to non-individualized negligence standard. Boys is potentially liable only under an individualized contributory negligence standard. No individualized negligence standard for agedness. Duty of reasonable care while driving = sharp lookout. Inability or failure to meet duty b/c of poor vision is breach NOT excuse of duty.

BUT individualized negligence standard for infancy + youth. Boys duty = degree of care exercised by boy of similar age/maturity. ***REASONING: people can almost universally anticipate that boys will act with less care than adults, people can adjust behavior to avoid liability.
Daniels v. Evans


Is a Child driving a motorcycle held to the reasonable care of an adult or a child to assess contributorily negligence in an car accident?

Child is liable according to adult reasonableness standard during adult activities. Dangerous to hold Child to lower standard of care when engaged in adult activities b/c impossible for people to adjust conduct and protect themselves. During activities common to children, Child is liable to child reasonableness standard.

Eckert v. Long Island R.R.

Is a Railroad liable to a Man when the Man was killed after he jumped in front of a train to save a child?

Semi-individualized negligence standard when acting to save human life. MAJORITY: Man not contributory negligent for voluntarily placing himself in danger b/c trying to save someones life BUT contributory negligence if Man was trying to save property. MINORITY: Man exercised free will, voluntarily placed himself in danger, volenti non fit injuria the willing suffer no harm.

Cooley v. Public Service

Is a Power-Company liable to a HomeOwner when power wires contacted telephone wire and caused an loud bang that emotionally disturbed the HomeOwner who was talking on the phone?

Power-Company not liable. Proposed higher duty of care must be practical. Power-Company met the industry standard. Home-Owner did not show that the proposed solution (mesh nets under lines) was a practical measure, that was reasonable under all the circumstances. Dual duty of care, Power-Company has duty to street-walkers and home-owners and mesh nets might be dangerous to streetwalkers. Performance of one duty CAN NOT mean nonperformance of another duty.

Custom Standards and BPL [ Cost / Benefit Standard ]

- Custom not always the reasonable standard + no defense for reckless / gross negligence. - Burden ? < Probaility of Loss x Cost of Injury
T.J. Hooper


Is a Tug-Boat-Owner liable to a Barge-Owner when the barge sank in a storm and tug boats did not have radios to check the weather?

Tug-Boat-owner is liable. Industry custom is not always the standard for duty of reasonable care. Tug boats w/o radio is an unseaworthy vessel. Not having radios is essentially waiving protection from danger. Duty of reasonable care evolves with advances in knowledge, technology and experience. In some situations, following the industry standard is negligence (breach of duty to exercise reasonable care). Industry Standard viewed in context of entire situation.

U.S v. Carroll Towing


Is a Tug-Boat-Owner liable to a Barge-Owner for hitting the barge, which caused it to break free from the dock and sink after colliding with other ships; when the Barge-Owner did not have an attendant aboard the barge who could have steered it?

Tug-Boat Owner is not liable b/c Barge Owner was contributorily negligent. Because any ship can break free, and unmoored ships freely floating are a problem, need to impose duty on Barge-Owner to incentivize proper care. Duty is a function of Burden, Probability of Loss and Loss. Impose duty (liability) when B < PL (cost of prevention is much less than the cost of the accident). Rationale is that you failed to exercise reasonable care because the cost of prevention is so low compared to the cost of the accident. Tying down barge is NOT sufficient in all situations b/c staffing barge = lower probability of loss.

Mayhew v. Sullivan


Is a MineShaft Operator liable to a Worker, customarily did not install railings and also did not tell the Worker?

Operator is liable. An industry standard (custom) of carelessness cannot be the standard of reasonable care. Operators actions were grossly negligent.

Custom as Defenses to Negligence [ Medical ]

Osborne v. Montgomery

Is a Driver liable when he Driver is not liable. Negligence is departing from care that opened the car door and great mass of mankind would use in that situation. it hit a passing Biker? Just b/c harm occurred, liability not automatic. Must weigh liability against social interests. Ex. Driver not negligent if car splashes dirty water into the air and someone gets sick. Not liable for all consequences of actions.

Titus v. Bradford


Is a Railroad liable to a Worker when irregular train cars that were fitted to the train with wire and blocks, broke free and killed the Worker?

Railroad is not liable. Worker assumed the risk. Railroad had duty to provide a reasonably safe environment according to the ordinary risks (customs) of the business. Customary to use blocks to secure trains and Worker knew about the risks and dangers (reasonably foreseeable). Jury not to determine reasonableness of business practices.

Lama v. Barras


Is a Doctor and Hospital liable to a Patient when the Doctor failed to implement a customary conservative treatment before surgery and the nurses failed to take proper notes? Is an EyeDoctor liable to a Patient when Doctor did not give glaucoma test for 9 years and in 9th year Doctor gave test and Patient had glaucoma, went blind? Is an Doctor liable to a Patient for giving Patient higher dosage of anesthesia when dosage was local custom but not the newest/most advanced custom?

Doctor and Hospital are liable. Doctor failed to follow medical custom by not implementing the conservative treatment before surgery. Hospital negligent b/c they failed to keep cumulative notes as required by regulations. Could have prevented the injury (infection). Doctor could be liable. 1 of 25k people is not an insignificant rate. Doctor could have easily administered the test and easily prevented injury. Custom of not administering test to people under 40 might be insufficient. B<PL = burden is less than $ of the injury Doctor is liable. Technology has eliminated the isolation that made local custom the standard. Proper standard is degree of care of average practitioner at current state of profession. Concern with perverse incentives b/c code of silence problem. Expert witnesses are limited to local experts who used local customs, not going to testify against colleagues.

Helling v. Carey


Brune v. Belinkoff


Negligence Per Se [ claim violation of statute as evidence of negligence ]

-Requirements (1) Violate standard of reasonable care established by Statute. (2) Resulting harm is w/i purpose of the statue. (3) Victim is member of Protected Class created by the statute [ Statute violation increases risk to class ]
Osborne v. McMasters

Is a Seller liable to a Buyer when the Seller sold and unlabeled poisonous substance and Buyer unknowingly consumed it and died?

Seller is liable. Violation of statute is negligence per se. Common law provides right to action for anyone injured by negligence. 3-Functions of Statutes in tort law: (1) Create right of action. (2) Basis for negligence per se action. (3) Basis for negligence action.

Ross v. Hartman

Is a Car-Owner liable for injuries to a Pedestrian when Owner left keys in car, violated statute, and a Thief stole car and hit Pedestrian?

Car-Owner is liable negligence per se and protected class. Leaving keys in car violated statute and is negligence per se. Purpose of statute was to protect Pedestrians and deter exact type of case. Pedestrians are protected class under scope/intent of statute " violated. CarOwner -> Thief -> !

Vesley v. Sager

Is Bar-Owner liable for damage that DrunkPerson causes to 3rdParty when selling alcohol to drunk people violates statute?

Bar-Owner is liable. Statute against selling to drunk people envisioned 3rdParty (injured #) as a protected class. Bar-Owner breached duty of reasonable care by selling beer to (enabling) DrunkPerson that led to damage !s property.

Negligence Per Se can be used as a defense against Negligence Claims [ Contributory Negligence ]
Martin v. Herzog

Is Driver2 contributorily negligent when Driver1 collided with Driver2 but Driver2 did not have headlights on and consequently violated a statute?

Driver1 was negligent but Driver2 might be contributorily negligent for failing to use lights (negligent per se) Statute established the duty and reasonableness standard. Duty under the statute is must use lights. Driver2 is contributorily Negligent if lack of lights was proximate cause of accident.

Defenses to Negligence Per Se Claims

(1) Harm not within the risk [ statutes purpose was to prevent a different harm ] (2) Common law excuse to negligence per se claim. (3) Statute doesnt create right of action, tort claim is against legislative scheme.
Garris v. Scott

Is Boat liable to SheepOwner when a contagious disease statute required animals to be caged but Boat left animals uncaged and waves washed sheep overboard?

Boat is not liable. Harm not w/i the risk. MAJORITY: Statutory purpose was disease prevention not boat transportation safety. Damage is different from intent of statute. MINORITY: Boat did not cage sheep, cage-ing sheep would have prevented harm.

Brown v. Shyne

Is a Doctor liable to a Patient when the Doctor operated on Patient w/o a license and the Patient became paralyzed?

Doctor is not liable, Harm not w/i the risk. MAJORITY: License purpose was to prevent unskilled and careless operations. Violation of licensing statute is not negligence per se. Patient must show Doctor was unskilled in conducting operation (failed to exercise reasonable care) and that it proximately caused Patients paralysis. MINORITY: License purpose was to protect the public from unqualified persons. Violation of statute is negligence per se, direct and proximate cause of paralysis. Timeline argument: (1): Majority - did violating statute cause harm at surgery itself? (2): Minority - did violating statute cause harm at the decision to operate?

Tedla v. Ellman


Is a Walker contributorily negligent when he was hit by Driver on the right side of the road when statute required walkers on left side of road but common law allowed walkers on right side if traffic lighter?

Walker is not contributorily negligent. Statutory violation with common law excuse. Statute says: must walk on left side Common Law say: walking on right side okay if traffic bad. Perverse outcomes problem, not reading-in or observing common law would make walkers negligent for reasonable behavior.

Uhr v. East Greenbush School District

Is School liable to Student when School violated statue and did not screen for scoliosis?

School is not liable. Harm that resulted from duty created by statute (i.e. without statute = no duty, no harm) 3-Part Test for Right of Action (1) Member of protected class? (2) Does allowing action promote statutory purpose? (3) Is allowing action consistent with Gov. scheme? Allowing/Creating private right of action is against legislative scheme. State envisioned other enforcement mechanisms and purposely did not create private right of action.

Res Ipsa Loquitor [ the thing speaks for itself ]

*Burden shift to " to disprove causation. Rules (1) Accident does ordinarily not occur in the absence of negligence. (2) Information about causation is under exclusive control by ". (3) No contributory negligence.
Byrne v. Bodle

Is Factory Owner liable to Pedestrian when barrel of flour falls out of window? Is Doctor liable to Patient when Patients shoulder/arm was injured during surgery on Patients stomach?

Factory Owner can be held liable. Res Ipsa. Barrels rolling out of factory does not ordinarily happen without negligence. "s burden to show non-negligence. Doctor is liable. Res Ipsa. Infer negligence b/c evidence and object causing harm is under exclusive control of the tort-feasor. Unreasonable or impossible for # to identify exact negligence. Shoulder injury during stomach surgery not happen w/o negligence. Doctor in charge can be liable for temporary servants (nurses, other staff) b/c person ultimately responsible for surgery.

Ybarra v. Spanguard

Colmenares v. Sun Alliance Insurance

Is Airport liable to Pedestrian when the rails on escalator stopped working causing him to fall?

Airport is liable. Res Ipsa. Handrail stopping ordinarily does not occur in the absence of negligence. Airport had non-delegable duty and exclusive control of escalator to maintain safe condition b/c of mass public use.

Defenses to Negligence [Breach] Claims

(1) Contributory Negligence (2) Assumption of Risk - Primary: ! assumed the risk = " had no duty; is it true (analyze duty) - Secondary: ! acted unreasonably; contributory negligence analysis (3) Last Clear Chance = Defense to Contributory and Assumption claims.

- Primary v. Secondary Assumption of Risk

Meistrich v. Casino

Is a Casino liable to a Performer who claims that the ice was made too hard and slippery.

Assumption of Risk has two parts: (1) Primary: did ! assume the risk essentially a duty question; is it true that " had no duty of reasonable care to make safe ice? 2) Secondary: did ! act like a reasonably prudent person in skating on dangerous ice; essentially a contributory negligence question.

- Successful Contributory Negligence claims [ " WINS ]

Butterfield v. Forrester

Is Home-Owner liable to a Horse-Rider when the Owner placed an obstruction in the road that could be seen from a distance and the Rider crashed into it?

Owner not liable. Rider contributorily negligent. Obstruction was clearly visible through use of ordinary care. Rider failed to exercise reasonable care cant cast oneself onto obstructions and claim negligence.

- Successful defenses to Contributory Negligence claims [ # WINS ]

Gyerman v. U.S. Lines

Is Shipping-Company liable to Unloader when Shipper stacked product dangerously and Unloader saw the risk, told a supervisor but continued working and was later injured when the product stack collapsed?

Shipper is liable, Unloader not contributorily negligent. Shipper negligently and dangerously stacked the product, someone was going to have to unload it; Unloader was doing his job. No assumption of risk. Shipper argued (time-line shift) Unloader contributorily negligent for not altering proper supervisor but no evidence that alerting supervisor would prevent accident. #s breach is not the cause of the accident.

Derheim v. Fiorito

Is Driver2s contributory negligent when he failed to wear a seatbelt that would have lessened the injury when Driver1 negligently hit (illegal left turn = negligence per se) Driver2?

Driver2 is not contributorily negligent. Typical contributory negligence is conduct that causes the accident or injury itself. Unfair and Inequitable to allow contributory negligence to bar recovery. Cost v. Benefit = simple, effective and efficient to wear seatbelt BUT = Slippery Slope Problem: what other safety measures should ! have used? Cost of expert witness to find whether seatbelt would have prevented harm. Time-line arguments: (1) Seatbelt negligence arguably occurs before accident (take # as you find him - Vosberg) (2) Doctrine of Avoidable Consequences ! should have taken measures to limit damages.

LeRoy Fibre v. Chicago


Is Railroad liable to Landowner when train sparks ignited Landowners hay stacks that were 75ft away from tracks and possibly too close?

McKenna: Landowner has absolute property right, no contributorily negligent. Landowner should not be subjugated by the Railroad. Is this a slippery slope problem, at what point does property owner need to give up entire land b/c of Railroad use? Holmes: negligence is all about degree, degree of closeness is relevant, 1/2 mile is probably not imprudent but 1ft from tracks is probably unreasonable. Societal efficiency argument: society loses value of flax if Landowner places it too close (last clear chance). Reciprocity Problem: Railroad harms Landowner, Imposing tort liability limits rights in favor of other party (e.g. Railroad liable = more farms, less trains). Question should be is lost caused by harm greater than benefit gained by harm.

- Assumption of Risk Claims [ view through Primary and Secondary Lenses ]

Lamson v. American Axe

Is an Employer liable for injures to an Employee when the Employer installed a new axe rack, Employee complained it was unsafe and continued working anyway and was then injured by a falling axe? Is a Amusement-Park liable to a Rider when the fast-escalator-like ride (The Flopper) allegedly suddenly jerked and the Rider fell and broke knee?

Employer is not liable for axe falling on head. Employee assumed the risk by continuing to work. Wages reflected the risk premium, its simply a dangerous job.

Murphy v. Steeplechase The Flopper

Amusement-Park is not liable. Rider assumed the risk, observed other riders. Falling was the thrill and foreseeable risk, it was the whole point of the ride. Volenti argument. The volunteer suffers no harm. No evidence of sudden jerk and Cardozo manipulates facts / analyzes evidence falling on wood theory was not presented to jury and contradicted by ! testimony; we wont consider it.

- Last Clear Chance Claims [ " Negligent, ! Negligent BUT " had Last Chance! ]
Fuller v. Illinois

Is a Train liable to a Wagon-Driver when the Train did not apply the brakes after Trail saw Wagon crossing tracks/stopped on tracks 600ft ahead and Train could have stopped but instead blew whistle when 200ft away from Wagon.

Train is liable. Train had last clear chance. Contributory negligence not a valid defense to liability when " had last clear chance to avoid the accident. Train failed to exercise reasonable care in looking out. Train could have stopped or given warning sooner. Last Clear Chance Doctrine = protection for !s against Contributory Negligence. Re-Incentivize "s to exercise reasonable care. Prevent perverse incentives of "s who knew about the risk and used contributory negligence as an escape from liability.


Suicidal person jumps in front of train but Conductor is drunk.

MAJORITY: !/" are equally at fault, RTT 503 = reckless disregard by both parties is no recovery. MINORITY: Suicidal person did not have last clear chance, suicide is not a voluntary action, mentally unstable/insane.

Comparative Negligence
Li v. Yellow Cab

Is Lane-Crosser contributorily negligent when Crosser tried to turn left into 3-lanes of traffic and LightRunner was speeding, ran yellow light and hit LaneCrosser?

Lane-Crosser is not contributorily negligent, new standard of Comparative Negligence. Problems with Contributory Negligence: (1) Inequitable, complete bar to recovery for !s. (2) Fails to distribute liability according to fault. (3) Juries already use comparative system by ignoring contributory negligence but awarding reduced damages. Problems with Comparative Negligence: (1) Absent tort-feasors complicate the question. (2) Dangerous to use % negligence when close case. Merge: Assumption of Risk; Last Clear Chance; WillWonton Misconduct. Comparative negligence is essentially the game being played (who really was at fault?) 2-Forms of Assumption of Risk: (1) ! unreasonably and willfully encounters risk created by "s negligence (2) ! agrees to relieve " of duty. Adopt Pure Form of Comp. Neg. (liability to % fault) (1) Alternate 50% Form bars recovery when ! is 50% at fault; Inequitable b/c # recovers @ 49%? (2) 50% system is essentially contributory negligence regime with more difficult standard.

Affirmative Duties [ Exceptions to no duty to stranger ]

(1) Creation of risk (2) Reliance (3) Contract / Assumed Duty (4) Attractive Nuissance (5) Isolation (making someone worse off) (6) Cant prevent rescue (bar phone)

-Creation of Risk
Yani v. Bigan

Is a Miner liable to a Jumper when the Miner NO DUTY TO taunted Jumper to jump STRANGER into a small pond and then refused to save Jumper?

Miner is not liable (moral hazard only) No affirmative duty to rescue strangers. Miner did not create the danger. Mental enticement only: (1) no physical contact (2) ! is not a child or mentally deficit (3) taunting is not negligence. Railroad is liable. Negligence = liable to victim and rescuer when engaged in reasonable behavior. Rescue = child of the occasion = no discrimination b/w rescuer who knows risk and doesnt know risk. Proper analysis = (1) Is injury to rescuer product of "s negligence? (2) Was the rescue attempt foolish or unreasonable?

Wagner v. International Rye


Is a Railroad liable to a Passenger when Passengers friend fell out of train and Passenger went with conductor to look for friend but Passenger fell off a bridge?

-Assumed Duty
Montgomery v. National Convoy

Is Truck liable to Car when Truck brokedown near the crest of a hill, put out warning signs but signs not visible until too late to stop?

Truck is liable. Impose duty to warn b/c Truck assumed duty of care to road users and created the danger. Truck recognized the dangers of icy road and low visibility and put out a 1/2 ass warning. 3-Ways to Impose Duty: (1) Truck created danger (2) Implied duty for safe highway use, duty to act reasonably among drivers. (3) Truck recognized duty and acted.

Marsalis v. LaSalle


Is a Cat-Owner liable to a Owner is liable. Assumed duty of reasonable care to monitor Neighbor when the cat cat and breached that duty. scratched Neighbor and (1) Isolation: Cat-Owner actions made Cat-Owner Cat-Owner promised to worse off than Neighbor would have been if they observe cat for rabies but just tested cat for rabies. cat escaped and Neighbor (2) Reliance: Neighbor kindly asked Owner to had to undergo rabies monitor, relied on Owner to perform duty that vaccination? Owner assumed. (3) Created risk: Owner created risk to Neighbor by failing to perform duty.

Erie R.R. v. Stewart

Is Railroad liable to Driver when Driver failed to look and hit by train but Railroad stopped providing a watchmen at the intersection and didnt tell anyone and Driver thought no watchmen meant no train coming?

Railroad is liable. Duty b/c created danger, trap, induced reliance. Railroad assumed duty. Provision of watchmen was custom, people relied that absence of watchmen meant safe to cross = created duty. Stopped watchmen service, without warning created a trap, failure to warn breached duty of reasonable care.

Special Relationships [ duty to protect against 3rd party negligence ]

Kline v. MA Ave Apartments.

Is a Landlord liable to Tenant when Tenant mugged in hallway and security measures had declined from when Tenant moved in but Tenant had month-to-month lease?

Landlord is liable. Duty to maintain hallway in reasonably safe condition. Creation of duty to protect against 3rd parties. Problems with making Landlord liable, imposing duty (creating special relationship) to provide safety: (1) Mugger is proximate cause of Tenant harm. (2) Harm is unforeseeable? Vague standard. (3) Government is supposed to protect people. Reasons to impose duty on Landlord for safety and create special relationship to Tenant: (1) Landlord not bystander. (2) Exclusive power/control to remedy situation. (3) Cost-Spreading. Landlord is cheapest cost avoider, can buy security and charge everyone higher rent, everyone benefits b/c marginally higher cost is less than cost of being robbed. (4) Landlord assumed duty by providing security in the beginning Tenant relied on security. (5) Landlord had notice of the danger. Doctor is liable. Special relationship imposed duty to warn. Public Policy favors disclosure of danger over confidentially and effectiveness of treatment. Factors to create duty to 3rd Parties: (1) Foreseeability of harm. (2) Certainty of injury. (3) Moral blame (4) Is injury proximately caused by the failed duty. (5) $ and consequences of creating duty.

Tarasoft v. Regents

Is a Therapist liable for injuries to Girl when Therapist knew Patient wanted to harm Girl and Therapist failed to warn Girl?

Land Owner Duties

(1) Categories Regime = invitee, licensee, trespasser. (2) Modern Regime = duty of reasonable care also [ Attractive Nuisance Doctrine ]
Addie v. Dumbreak OVERRULE D in Rowland v. Christian

Is a Mine-Company liable to Child when Child trespassed on field, played on cable-wheelmachine and was killed?

Company is not liable. No duty to trespasser. Invitee = duty to exercise reasonable care for safety. Licensee = no duty of safety except hidden dangers. Trespasser = no duty except will-full/wonton, reckless MAJORITY: lack of fence and commonly ignored warnings is not permission to trespass (not licensee). So no duty to warn of latent defect. MINORITY: if tolerance of trespassing is egregious enough then trespasser becomes licensee. Implied permission.

Busch v. Armory

Is a Mill liable for not removing ChildTrespasser? Is a Owner liable to a Guest when Owner knew sink handle was broken, failed to tell Guest and Guest cut hand when handle snapped?

Mill is not liable. No duty to trespassers except no excessive force in removal. Mills dangerous machinery is normal condition of the premises, no duty to warn b/c: Owner is liable. abolish status categories. Must exercise reasonable care in managing property as to not injure others. Heaven v. Pender = duty to use reasonable care when a reasonable person in that situation would recognize that failing to exercise care is going to cause harm. Impose reasonable person b/c: (1) Status Categories dont allow connection b/w injury and cause of injury. (2) Stop the moral hazard (3) Prevent future harms. (4) Reasonable people dont change level of care based on status of other people. Status can impact the $ compensation but not fault.

Rowland v. Christian

- Attractive Nuisance Doctrine

-View as Trespasser becoming Licensee also, Owners actions are Wilful and Wanton Requirements (1) reason to know child trespassers are around. (2) the thing is harmful (3) children wont realize its harmful (4) fails BPL (5) Artificial Condition

Cause in Fact [ But for "s negligence no harm ]

(1) Interderminent Causation (2) Joint and Several Liability (3) Market Share Liability (4) Lost Survival.
Zuchowicz v. U.S.

Is a Pharmacist liable for a Users death when the prescription instruction was double the prescribed dosage and the drug allegedly caused a illness but the illness was acerbated when User became pregnant and ineligible for heart/lung transplant?

Pharmacist is liable. Over-prescription was proximate cause of the illness. 2-Parts to Causation: (1) Does drug cause illness (2) Did over-prescription of drug cause illness? Drug causes illness b/c all other potential causes of illness ruled out with differential eteology. Overfilling was Negligent per se b/c: against FDA regulations and against the implicit assumption of drug use that benefit > cost.
Martin v. Herzog: infer negligence from violation of statute that was designed to prevent the exact harm that occurred.

RULE: if type of negligence increases a specific type of accident and that accident occurs assume negligence.

Assume that Over-Prescription caused Illness b/c: Over-prescription is negligence because it increases risk of illness, here, there was over-prescription and the illness occurred. RULE: If a negligent act is considered wrong because the negligent act increase the chances of a specific type of accident, and that very accident happens; it is sufficient to say that negligence is the cause of the accident.

- Indeterminate Causation = Joint and Several Liability

Summers v. Tice

Are Hunter1 and Hunter2 both liable to Victim when Hunters fired at a bird, missed and hit Victim but its unknown which Hunters bullet actually hit Victim?

Hunter1 and Hunter2 are liable. Indeterminate Causes = impose Joint / Several Liability. Not independent tort-feasors = acting in concert Both Hunters acted negligently; Shift Burden to defendants to sort out who is more negligent. Like (Yabara) res ipsa = we dont know who the exact negligent person was but there is negligence. Policy Reasons: (1) Prevent moral hazard of no liability. (2) Evidence is exclusively b/w the tort-feasors.

Kingston v. Chicago

Is a Railroad liable to a Landowner when Railroad caused NEFire that joined with an unknown NW-Fire and destroyed Landowners house?

Railroad is liable. Assume NW-Fire was result of negligence = impose joint / several liability. Indeterminate Cause = burden shift to " to show superseding cause (show that NW-Fire had): (1) natural cause or (2) bigger more dangerous fire or (3) Was result of more negligent behavior If NW-Fire had natural cause = " not liable b/c -Not true that but for "s negligence no fire harm

- Joint and Several Liability

(1) Old Idemnity Rule = If two parties are joint torfesors there is no contribution or indemnity. (2) New Indemnity Rule = "s share liability on Comparative Fault basis. (Li v. Yellow Cab)
Joint and Several Rules for Insolvency

Scenario: (at fault) ! = 30%; "1 = 60%; "2 = 10% "1 is insolvent.

Pure Joint / Several: "2 pays 70% ("2 assumes all liability = total recovery for plaintiff) Several Liability: "2 pays 10% ("2 only pays the % he was liable for) Joint / Several with Apportionment: 40% total liability remaining ! pays = 30/ 30 +10 = 75% " pays = 10/30+10 = 25%

Proportionate Share v. Pro tanto

Scenario: 2.1m verdict "1 = settled for 1m "2= 32% "3 = 38%

Proportionate Share Rule: "1 = 1m settlemtn = 1m "2 = 32% of 2.1m = $672 "3 = 38% of 2.1m = $798 Total Recovery of 2.4m Pro Tanto Rule: 2.1m verdict - 1m settlement "1 = "2 = 32/70 x 1.1m = $914 "3 = 38/70 x 1.1m = $1m If "1 pays less in settlement than the % of fault awarded at trial "2 and "3 will sue.

- Market Share Liability

Sindell v. Abbot Laboratories

Is a Drug-Manufac liable to a Child where the drug causes cancer to children when Mothers consume it and when the Manufac(one of hundreds) probably did not produce the exact pill that harmed Child?

Manufac is liable. Market Share Liability. Liable for % of drug you produced. No indeterminate cause doctrine (Tice) b/c: (1) impossible to identify tort-feasor but (2) all possible "s are not joined (many unknown). No concert of action b/w "s. Loss Spreading and Moral Reasons to hold " liable Criteria for Market Share Liability: (1) ! harmed and not negligent. (2) All "s are potential Tort-Feasors (3) "s produced a similar, fungible good. (4) Must join substantial # of manufactures. Damages: Several liability regime = liability limited to manufactures % of market share, relative total amount of liability available (insolvent "s liability removed from calculation).

- Lost Chance at Survival

Herkovit s v. Group Health Cooperat ive.

Is a Doctor liable to a Patient for lost chance of survival when Doctor diagnosed Patient with cancer but failed to detect it sixmonths earlier?

Doctor is liable. Proximate cause of reduced chance for survival. Rendering incomplete services is failure to exercise due care. Causation Problem But for Doctors negligence, Patient survives = but for analysis is not true. Patient was going to die w/ or w/o negligence. - w/o Negligence = 39% survival chance - w/ Negligence = 25% survival chance 36% reduction in survival chance. MAJORITY: Damages for reduced chance of survival even when reduction in survival chance is less than 51%, eliminate perverse incentives b/c holding otherwise means no liability to persons w/ less than 51% chance of survival. MINORITY: No Damages for reduced chance of survival if survival chance is less than 51% = Idea is negligence not really cause for death, going to die anyway. (fails preponderance standard). Damages Theories Rules: Neg. reduced survival chance by less than or equal to 50% = ! recovers only % of enhanced risk Neg. reduced survival chance by greater than 50% = ! recovers 100% damages. Example of enhanced risk: w/o negligence = 40% Survival = 60% death rate w/ negligence = 20% Survival = 80% death rate (1) 50% decrease in survival rate. (2) 33% increase in death rate. [b/c Tort theory] 100 Patients: w/o negligence = 60 Die w/ negligence = 80 Die

20 Excess Deaths 80 Total Deaths

Enhanced Risk or Harm is 25% increase in death rate, so 25% liable for damages. Herkovitzs Creates Over-deterrence Problem: w/o negligence = 75% Survival rate = 25 Die w/ negligence = 25% Survival rate = 75 Die Actual excessive deaths = 50 [33% increase death] Under 51% Rule, 75 ppl recover @ 100% b/c reduced survival rate is 74% [75-25/75]

Proximate Causation I
Requirements (1) Forseeability (2) Moral Cuplability (3) No major Intervening / Superseding causes.
Ryan v. NY Central R.R.

Is a Railroad liable to a Homeowner for a negligent fire that spread and damaged Homeowners property 130ft from origin of fire?

Railroad is not liable. Damage is remote result of Railroads negligence. Example = Fire - A - B - C (1) Fire burning A is foreseeable / anticipated (2) BUT Fire burning B or C not necessarily foreseeable. Reasons to Limit Liability: (1) Loss spreading: Railroad cant insure everyone, better / more efficient for individuals to insure. (2) Public Benefit of Railroad (Losee v. Buchanan) (3) Unfair to hold Railroad liable for everything.

City of Lincoln

Is Captain liable for ship sinking after a collision when the during the collision the Captain lost his maps, compass?

Captain is not liable. Captains actions are not superseding cause between collision and sinking. 3rd Party Negligence deprived him of the ability to navigate; Captain not contributorily negligent for ship sinking. But For "s negligent collision ship does not sink.

Palsgraf v. Long Island R.R.

Is Railroad liable to Bystander when Railroad employees pushed man on a train, who dropped fireworks which exploded that caused scale to fall and injure Bystander?

Railroad is not liable. Bystander is not a foreseeable plaintiff = NO DUTY. Chain of events: Push - Drop - Explosion -Scales - Injury CARDOZO: Railroad did not have duty b/c injury was un-foreseeable. Eye of vigilance perceives the risk of damage. No duty for un-foreseeable injuries. Railroad - bumped a bomb carrier in a crowd - not liable. ANDREWS: (find cause of best fit) Explosion = proximate cause. But for Railroad negligence Everyone has absolute duty to not injure. -if someone engages in unreasonable behavior (negligence) the remoteness of harm is irrelevant. Proximate Cause = ripples in pond, we stop following causal chain @ socially efficient point.

Proximate Causation II
(1) Cause = all direct consequences from breach of reasonable care. (2) Cause = only consequences that were reasonably foreseeable. MODERN RULE


Is a Merchant liable to a ShipOwner when Merchant knocked plank into ships hold and ship exploded?

Merchant is liable. Liable for all direct consequences. Explosion = direct result of negligence [ Reasonable people dont drop planks ] PROBLEM BPL Analysis favors imposing negligence and reasonable people dont drop planks BUT: explosion is not foreseeable (harm not w/i the risk). Irrelevant that the reasonably expected (foreseeable) harm of a falling board is not ship explosion b/c Merchant could have reasonably anticipated some injury. Vosberg: Egg-shell skull rule

Wagon Mound

Is an Oil-Tanker liable to a Dock Owner when the Tanker spilled oil and the sparks of Docks welders lit a cotton rag that ignited the dock/harbor?

Oil-Tanker is liable. Reverse Polemis Holding Dock contributorily negligent (fire as direct result of welding) = illogical outcome Fire = reasonably foreseeable result of Tankers negligence. Polemis Rule = too expansive, (like SL regime) b/c liable from almost all damage from negligent act (explosion was not reasonably foreseeable. Common Sense that Tanker should be liable. PROBLEMS: (1) Tension w/ Egg-Shell Skull Rule = Tort-feasor takes victim as he finds him. Wasnt reasonably foreseeable that Vosberg would lose leg.

Strict Liability [ fit case into SL box = duty + breach ]

- Policy Objectives of SL
(1) Regulate activity level (Incentivize cricket club to play less games) (2) Subsidy/Tax to align Social Costs with Benefits Ex. Industry with lots of externalities; impose SL but not on Zoos or Fireworks. (3) Eliminate Non-Reciprocal Risks (4) Assess liability even if evidence is destroyed (gas truck explosion)

- Ultra-Hazardous / Abnormally Dangerous Activities:

(1) RST 519: if you engage in Ultra-hazardous activities, liable for all harm w/i risk) (2) Harm w/i Risk = Madsen v. East Jordan = " not liable for blasting that made Minks kill babies. = (limited to) type of harm that makes the activity dangerous in the first place. Factor Test (RST 520) (1) High Risk of Harm Occurring (2) High Loss Potential (3) Ability to eliminate with reasonable care. (4) Not Common Usage (% of population) (5) Inappropriate Location (6) Value to Society Bolton v. Stone Bolton v. Stone BPL Analysis + Garrett v. Daly (intent to act w/ sub. certainty) Rylands (nonreciprocal risks) Rylands (nonreciprocal risks) and Bolton v. Stone Losee (dont deter Socially Beneficial behavior)

- Animals
(1) Domestic Animals = negligence regime (2) Wild Animals = Strict Liability Regime (but maybe global negligence, its negligent for you to have that animal. The Flopper: if the ride caused lots of injuries then maybe negligent to have it.
Gherts v. Botten

Is Dog-Owner liable to Neighbor when dog, tied up in back of truck, bit neighbor?

Dog-Owner not liable. SL regime ONLY for dangerous animals. Neighbor must show that Owner knew dog was dangerous. (Fit case into the SL box) Harm not Reasonably Foreseeable: (1) no evidence of dangerous dog (2) people dont know that having the scent of another dog scent would make this dog dangerous. (3) no evidence that restraining dog would have prevented injury.

- Blasting; Shipping Dangerous Chemical

Spano v. Perini

Is Blaster strictly liable to Garage when explosion causes damage to the garage 125ft away?

Blaster is strictly liable = ultra hazardous activity. -Substantial risk of harm regardless of care used. Expand Booth doctrine of Strict Liability for flying debris and Negligence for other damage = pure strict liability regime. Blasting = substantial risk regardless of degree of care used = Blaster should bear the risk. Old argument = blasting benefits public (no SL) New argument = cost of public benefits should not be allocated to innocent parties. Blasting Company can loss spread = higher rates.

Indiana R.R. v. American Cynamid


Is a Manufac who shipped a dangerous chemical strictly liable to a Railroad when the chemical spilled in a residential area and either party could have prevented the car from leaking?

Manufac is not strictly liable. (1) Chemical itself is not inherently dangerous. (2) Spills can be prevented w/ reasonable care. Purposes of SL Regime: (1) High % of risk, High cost of Liability = unpreventable w/ reasonable care. (2) Incentivize relocate or change activity level. No SL b/c: -Chemical is similar to 125 other chemicals, not inherently dangerous to store / move. -Impractical or inefficient to force Manufac to ship chemical away from residential areas. (1) Increased cost. (2) Longer route = more exposure to risk.

Vicarious Liability [ get at the party with the $ and incentivize ]

Possible Rules: (1) Acts authorized by employer. (2) Failure to supervise / negligent hiring practices. (3) Acts with purpose to serve employer. (4) Accidents foreseeable from biz activity.
Ira Bushey v. U.S

Is Coast-Guard vicariously liable to Dock-Owner when sailor walked back to ship drunk and opened valve that flooded and damaged the dock?

Coast-Guard is vicariously liable. Employers are liable for reasonably foreseeable activities. Problems: (1) Old Test (RST + Nelson) = employers liable for: - activity w/i scope of employment and motivated by intent to serve master. (2) Incentives (# is cheapest cost avoider?): - Coast Guard find better sailors? - Dock Owner to Install better safety mechanisms? Maxim = Respondent Superior let the employer answer, employers shouldnt be able to avoid responsibility = use foreseeability standard.

Petrovich v. Share Health

Is an HMO vicariously liable when Doctor failed to

HMO is vicariously liable. Reasons for liability: (1) HMO had apparent authority over Doctor: - Hold Out / Project to public as health provider. - Induce Public Reliance, assume Doctor is employee of HMO; people must choose from HMO plan list of doctors. (2) HMO had implied authority over Doctor: - HMO makes decisions about medical necessity - HMO refuse to pay for some procedures. (3) Policy = Liability balances HMOs profit motive.


Products Liability [ show Defect, Seller, Harm, ]

Impose SL for Activity Limits, BPL, Force Innovation, Cost Internalization and Loss Spreading

- Sellers
Distinguish b/w: Sellers = Strict Liability / Service Provider = Negligence. (1) Scope of Inquiry = Is Consumer looking for object. (2) Consumer Choice = What was Consumers level of choice in selecting product? (3) Necessity of service = How necessary is the Party to the goal that the consumer desires? Ex. Electrician probably not seller of wire. (4) Purpose of Service = Is what this Party doing party of marketing or core biz operations. (5) Ability to Control Manufac = is intermediate Seller able to loss spread?

Excludes Casual Sellers from SL but not Custom Sellers

Custom Sellers are Strictly Liable, tension b/c Service Providers (standardized services) = negligence.

- Defects
(1) Manufac Defect = departure from intended design. (2) Design Defect = Is the design reasonable = TEST = (1) RAD (2) Consumer Expectations. (3) Inadequate Warning = is the warning reasonable ( really goes back to Design Defect )

- Manufac Defect
MacPhearson v. Buick Motors

Is a car Manufac liable to a Consumer when wheel of car made from defective wood, however, Consumer purchased car from Dealer?

Manufac liable for products = Duty flows to consumer - Abandon privity requirement. - Distinguish old cases w/o product liability as cases with significant superseding causes. Problem: A - B - C [If C buys from B can C sue A?] Reasons for Products Liability: (1) General knowledge that in usual course someone other than 1st purchaser will use product. (2) Negligently constructed products = dangerous. Duty (1) Liable for the complete finished product. (2) Test / Inspect component parts.

Escola v. CocaCola

Is a Coke-Manufactuer liable to a Waitress for manufacturing defect when coke bottle explodes on Waitress?

CocaCola is liable for manufacturing defect. Res Ipsa - No overpressure w/o negligence. CocaCola is least cost avoider and best cost spreader.

- Defense to Manufac Defect = Economic Loss Rule (harm to product, itself)

CasaClara v. Toppino

Is a Concrete-Maker liable Concrete-Maker is not liable, economic loss rule. to a Home-Owner in - no Tort liability w/o damage or injury. (Contract Law area) products liability when the concrete is found to be Reasons for no liability: defective but has not (1) Product has only harmed itself. caused any damage (2) Only damage is to economic expectations. yet? (3) Would create Tort Imposed maintenance plan. Problems: (1) Perverse incentives = Tort goal is to prevent future harm. (2) Loss Spreading / Cheapest Cost Avoider = allocated cost to Concrete-Maker, higher prices for better concrete.

- Design Defect
4 Rules (evolution) ANALYZE ALL! (1) Open and Obvious Test (any hidden dangers a.k.a. assumption of risk test) (2) Consumer Expectations Test (product deviates from how reasonable consumer would expect it to function) (3) Risk-Utility Test (cost / benefit analysis of product) (4) Reasonable Alternative Design [RAD] (Heart of the Risk Utility Test, show better design) (Created after OBrien v. Muskin, dove into shallow pool, hands slipped on liner and broke neck) - Shift to Risk Utility / RAD from Consumer Expectations b/c: (a) Paternalistic Notions = you dont know what you getting into (b) Tort Law as Police (c) Defeat you Assumed The Risk argument (Titus, American Axe) with Unsafe Custom (TJ Hooper) (d) Protected Class = no consent.
VW America v. Young Is Car Manufac liable when seat broke during accident?

Liable for Intended uses, which includes: reasonably foreseeable uses. Collisions are reasonably foreseeable = w/i the intended purpose of the car. Duty to eliminate latent risks. Connect to Kline = duty to protect from 3rd party negligence. 2 Tests for Design Defect (defective if either is satisfied) Consumer Expectations Test (1) Fails to perform as safely as a reasonable consumer would expect during a reasonably foreseeable use. Risk Utility Test (2) Do the Risks / Costs of design outweigh benefits? "s Burden to show design not defective.

Barker v. Lull Engineering

Is Lull Manufac liable when lull tipped over during use on incline surface?

- Failure to Warn
(a) Trade-off b/w expensive design or cheap warning. (b) Safer design not possible [ Ex. chain saw ] McDonald v. Ortho Liable for failing to warn about stroke risk on Birth Control Pills? Foreseeable risk. Feasible Warning. Manufac is liable. [ State Tort Law controls ] " argues = learned intermediary doctor in best position to give educated warning, unique to consumer. Not learned intermediary and FDA Regs insufficient (1) High degree of consumer choice with birth control. (2) 1yr Renewal cycles foreseeable that Doctors might fail to warn or consumers will forget. (3) High feasible for manufacs to warn and product poses substantial Risk ( BPL ) Problem: tension w/ But for causation If Girl knew about risk of blood cots and took drug... Is it true that But for warning about stroke no injury? Vassello v. Baxter Liable for failing to warn about risk Test - Failure to warn when: of silicon damage to muscles from (1) Foreseeable Risks could have been reduced rupture of breast implant? by (2) Provision of reasonable warnings and (3) Omission of warning = unsafe product Duty to perform reasonable testing to uncover risks.

Federal Preemption
[ When does Federal Regulation trump State Tort Law ]
(1) Express Preemption = statute says it preempts all tort claims. (2) Conflict Preemption = statute and tort law conflict, statute preempts. (3) Obstacle Preemption = is allowing tort claim / liability an obstacle to policy goal. (4) Field Preemption = federal regulations completely dominate a field.

- Test for Implied Right of Action [ Cort v. Ash

(1) Is ! member of protected class, is right created for !s benefit? (2) Evidence of Legislative Intent to create right of action? (3) Is right of action consistent with Legislative Policy? (4) Is right of action basically the concern of the states?

Geier v. American Honda

Is a Car-Manufac liable to Owner for not installing airbags when airbags are not required by federal statutes but airbags are within the state common law duty? State common law duty pre-empted by Federal Motor Vehicle Safety Act?

Manufac is not liable. Federal Statute pre-empts state law, here. Intent of Federal Statute was a gradual phase-in period, airbags not required. Pre-emption created floor, minimum safety standard. Allowing State tort claim contracts goals of statute.