Torts Allen 20091

TortsProfessor Allen Fall 2009
Overview................................................................................................... 10
Fault-Based Tort Liability............................................................................10
Brown v. Kendell (biting dog)................................................................................................... 10
Intentional Torts.........................................................................................10
Overview................................................................................................................................. 10
Batter!..................................................................................................................................... 11
" Elements of Battery.............................................................................................................. 11
" Case Law............................................................................................................................... 11
o #arratt v. $aile! (%&lling o&t '(air)................................................................................................. 11
o )(aw v. Brown * +illia,son Toba''o -or% (se'ond (and s,o.e)...................................................11
o Fis(er '. -arro&sel /otor 0otel1 2n' (.no'.ing %late o&t of (and)....................................................11
Assa&lt..................................................................................................................................... 12
" General................................................................................................................................. 12
" Case Law............................................................................................................................... 12
o 0ollowa! v. +a'(ovia Ban. * Tr&st -o. (assa&lt in 'ar)...................................................................12
False 2,%rison,ent.................................................................................................................. 13
" General................................................................................................................................. 13
" Case Law............................................................................................................................... 13
o Tei'(,iller v. 4ogers /e,orial 0os%ital1 2n' ('ornered in o5'e).....................................................13
Tres%ass to 6and....................................................................................................................... 17
" General................................................................................................................................. 14
" Case law................................................................................................................................ 14
o -ase of T(orns................................................................................................................................ 17
o A,%(it(eaters1 2n'. v. Portland /eadows (a,%(it(eater and ra'e tra'.)......................................17
o Bradle! v. A,eri'an ),elting and 4e8ning -o. (s,all %arti'le n&isan'e)......................................17
Tres%ass to -(attels................................................................................................................. 19
" General................................................................................................................................. 15
" Case law................................................................................................................................ 15
o -o,%&serve1 2n'. v. -!ber Pro,otions1 2n'. (:&n. ,ail)...................................................................19
-onversion............................................................................................................................... 19
" General................................................................................................................................. 15
" Case law................................................................................................................................ 16
o Bergeron v. Aero )ales1 2n'. (:et f&el and land transfer)..................................................................1;
2ntentional 2n<i'tion of =,otional $istress...............................................................................1;
" General................................................................................................................................. 16
" Case law................................................................................................................................ 16
o Fig&eiredo"Torres v. >i'.el (%s!'(iatrist slee%ing wit( P?s wife).......................................................1;
o -aldor1 2n'. v. Bowden (a''&se bo! of stealing fro, store).............................................................1@
Defense to Intentional Torts........................................................................17
/a:or $efenses........................................................................................................................ 1@
-onsent.................................................................................................................................... 1@
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1
" General................................................................................................................................. 17
" Case law................................................................................................................................ 18
o ),it( v. -alvar! -(ristian -(&r'( ('(&r'( disagree,ent)..............................................................1A
o 0a'.bart v. -in'innati Bengals1 2n'.1 %.;9 (football in:&r!)..............................................................1A
)elf $efense............................................................................................................................. 1A
" General................................................................................................................................. 18
" Case law................................................................................................................................ 18
o 4oberts v. A,eri'an =,%lo!ers 2ns&ran'e -o.1 %.@1 (ref&se to leave bar1 atta'.s %oli'e)...............1A
$efense of Pro%ert!................................................................................................................. 19
" General................................................................................................................................. 19
" Case law................................................................................................................................ 19
o Kat.o v. Brine! (s%ring g&n)............................................................................................................ 19
Private >e'essit!...................................................................................................................... 19
" General................................................................................................................................. 19
" Case law................................................................................................................................ 19
o Ploof v. P&tna, (,oor to do'.)....................................................................................................... 19
o Bin'ent v. 6a.e =rie Trans%ortation -o. (stor,1 s(i% destro!s do'.)................................................20
P&bli' >e'essit!....................................................................................................................... 20
" General................................................................................................................................. 20
" Case law................................................................................................................................ 20
o C) v. -alteD (P(ili%%ines)1 2n'. ( C) destro! %etrole&, %lants d&ring war).....................................20
>on"$efenses........................................................................................................................... 20
Negligene................................................................................................. !1
#eneral.................................................................................................................................... 21
T(e $&t! )tandard................................................................................................................... 21
" General................................................................................................................................. 21
" Case law................................................................................................................................ 21
o Ba&g(an v. /enlove1 %.92 ((a! sta'. 'at'(es on 8re).....................................................................21
o -(arbonnea& v. /a'r&r!1 %.99 ('(ild standard)...............................................................................21
o $aniels v. =vans1 %.99 (,inor driving ve(i'le).................................................................................21
o Bre&nig v. A,eri'an Fa,il! 2ns&ran'e -o.1 %.103 (del&sions w(ile driving).....................................22
T(e Brea'( of $&t!.................................................................................................................. 22
" General................................................................................................................................. 22
" Hand est.............................................................................................................................. 22
" !lternat"#es to Hand est...................................................................................................... 23
" Case law................................................................................................................................ 23
o C) v. -arroll Towing -o.1 %.110 (bargee leaves and barge 'a&ses da,age)....................................23
o #ri,es v. >orfol. 4ailwa! -o.1 %.112 (wal.ing b! 44 tra'.s1 in:&red)..............................................23
o Brot(er(ood )(i%%ing -o. v. )t. Pa&l Fire * /arine 2ns&ran'e -o.1 %.117 (freig(ter da,ages1 'it!
liable).................................................................................................................................................... 23
T(e 4ole of -&sto,.................................................................................................................. 23
" Case law................................................................................................................................ 23
o /a!(ew v. )&llivan /ining -o.1 %.119 (fell t(ro&g( ladder (ole).....................................................23
o T(e T.E. 0oo%er1 %.120 (radio sets).................................................................................................. 27
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2
o $oe v. -&tter Biologi'al1 2n'.1 %.121 (02B fro, blood transf&sion)...................................................27
" C$stom as !%%l"ed "n &ed"'al &al%ra't"'e............................................................................ 24
o Br&ne v. Belin.oF1 %.129 (lo'al ,edi'ine1 eD'essive dosage)..........................................................27
o 0elling v. -ar!1 %.129 (gla&'o,a)................................................................................................... 27
o -anterb&r! v. )%en'e1 %.137 (ba'. (&rt1 sli%%ed oF (os%ital bed)..................................................29
-ri,inal )tates1 -ivil )tat&tes1 and >egligen'e Per )e............................................................29
" General................................................................................................................................. 25
" Case law................................................................................................................................ 25
o Osborne v. /'/asters (forgot %oison labeling)................................................................................29
o /artin v. 0erGog (b&gg! not &sing lig(ts)........................................................................................29
o Besel! v. )ager (liable for serving al'o(oli' beverages)..................................................................2;
o Brown v )(!ne ('(iro%ra'tor wit(o&t li'ense).................................................................................2;
Proof of >egligen'e.................................................................................................................. 2;
" Case law(()#er#"ew............................................................................................................... 26
o Balti,ore * O(io 4.4. v. #ood,an (train 'ras( into 'ar).................................................................2;
o Po.ora v. +abas( 4!. (train 'ras(1 train still (ad ti,e to sto%)........................................................2;
o +il.erson v. /'-art(! (fell in 44 %it)............................................................................................... 2;
" Case law*+es ,%sa Lo-$"t$r................................................................................................. 26
o #eneral.......................................................................................................................................... 2;
o B!rne v. Boadle (<o&r falling).......................................................................................................... 2@
o 6arson v. )t. Fran'is 0otel (ar, '(air)............................................................................................. 2@
o Brown v. Powa! Cni8ed )'(ool $istri't (l&n'( ,eat)......................................................................2A
" +es ,%sa "n &ed"'al &al%ra't"'e............................................................................................ 28
o Hbarra v. )%angard (too ,&'( anest(eti'1 s(o&lder %aral!Ged)......................................................2A
"ause In Fat.............................................................................................!#
IB&t"ForJ -a&sation................................................................................................................. 2A
" General................................................................................................................................. 28
" Case law................................................................................................................................ 28
o 6!ons v. /idnig(t )&n Trans%ortation )ervi'es (%&lled into tra5'1 (it b! tr&'.)..............................2A
o $a%% v. 6arson ((ealt( aide sli%s on ste%s1 bla,e on r&g)..............................................................2A
o +illia,s v. =,ro /ar.eting -o,%an! (sli%%ed on i'e)....................................................................2A
/&lti%le -a&ses and )&bstantial Fa'tor Test............................................................................. 2A
" General................................................................................................................................. 28
" Case law................................................................................................................................ 29
o Anderson v. /innea%olis1 )t Pa&l and )a&lt )te. /arie 4!. -o. (,an! bog 8res)..............................29
o $illon v. Twin )tate #as * =le'tri' -o. (bo! ele'tro'&ted on bridge)...............................................29
-a&se in Fa't and Proof of /at(e,ati'al Probabilities.............................................................29
" Case law................................................................................................................................ 29
o +e!,ers v. K(era (do'tors ,isdiagnose .idne! disease)...............................................................29
o $a&bert v. /errell $ow P(ar,a'e&ti'als1 2n' (birt( defe'ts)...........................................................29
$ro%i&ate "ause........................................................................................'0
#eneral.................................................................................................................................... 30
T(e $ire't -a&se Test............................................................................................................... 30
" Case law................................................................................................................................ 30
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3
o 2n 4e An Aribitration Between Pole,is and F&rness1 +it(! -o.1 6td (dro% %lant1 'a&se 8re)...........30
Foreseeabilit! as a $&t! 6i,itation.......................................................................................... 30
" Case law................................................................................................................................ 30
o 0elen Palsgraf v. T(e 6ong 2sland 4ailroad -o,%an! (8rewor.s)....................................................30
Foreseeabilit! and t(e 4is. 4&le.............................................................................................. 31
" General................................................................................................................................. 31
" Case law................................................................................................................................ 31
o Overseas Tan.s(i% (C.K.) 6tdv. /orts $o'. * =ngineering -o. (T(e +agon /o&nd) (Overt&rns
Pole,is) (oil in ba! and 'a&g(t on 8re)................................................................................................. 31
Foreseeabilit! and t(e =Dtent of 0ar,..................................................................................... 32
" General................................................................................................................................. 32
" Case law................................................................................................................................ 32
o )toleson v. Cnited )tates (nitrogl!'erin)......................................................................................... 32
Foreseeabilit! and 2ntervening -a&se...................................................................................... 32
" General................................................................................................................................. 32
" Case law................................................................................................................................ 32
o 0er,an v. /ar.(a, Air 4i<e -o (air ri<e).......................................................................................32
o $erdiarian v. FeliD -ontra'ting -or%. (seiG&re1 'ras( into boiling ena,el).......................................32
o /ars(all v. >&gent (swerving tr&'.)................................................................................................ 32
o /'6a&g(lin v. /ine )afet! A%%lian'es -o,%an! ((eat blo'.s)........................................................32
o +atson v. Kent&'.! * 2ndiana Bridge * 4. -o. (gas s%ill1 lit ,at'().................................................33
o Bra&er v. >ew Hor. -entral * 0.4.4. -o. ('ras(1 stole wagon goods)...............................................33
(ulti)le Tortfeasors....................................................................................''
Eoint and )everal 6iabilit!......................................................................................................... 33
" Case law................................................................................................................................ 33
o -arolina1 -. O. 4!. B. 0ill (44 'onstr&'tion da,age land)................................................................33
T(eories of Eoint 6iabilit!.......................................................................................................... 33
" Con'ert of !'t"on................................................................................................................... 33
o Bier'G!ns.i v. 4ogers (drag ra'e).................................................................................................... 33
" Enter%r"se L"a."l"ty................................................................................................................ 34
o 0all v. =.2. $& Pont $e >e,o&rs * -o. (blasting 'a%s).....................................................................37
" !lternat"#e L"a."l"ty............................................................................................................... 34
o )&,,ers v. Ti'e ((&nting).............................................................................................................. 37
" &ar/et 01are L"a."l"ty........................................................................................................... 34
o )indell v. Abbott 6aboratories ($=))................................................................................................ 37
o 0a,ilton v. A''&"Te. ((and g&n ,ar.et s(are liabilit!)...................................................................37
2nde,nit! and -ontrib&tion..................................................................................................... 37
" General................................................................................................................................. 34
" Case law................................................................................................................................ 35
o >ational 0ealt( 6aboratories1 2n' v. A(,adi (%aral!sis wit( ,isdiagnosis).....................................39
o Bervoets v. 0arde 4alls Pontia'"Olds1 2n' ('o,%arative fa&lt).........................................................39
Da&ages for $ersonal In*uries.....................................................................'+
='ono,i' 6osses -a&sed b! P(!si'al 2n:&r!.............................................................................39
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" General................................................................................................................................. 35
" Case law................................................................................................................................ 35
o )eFert v. 6os Angeles Transit 6ines ('a&g(t in b&s and dragged)....................................................39
F&t&re $a,ages and $is'o&nting to Present Bal&e..................................................................39
" General................................................................................................................................. 35
" Case law................................................................................................................................ 35
o Eones * 6a&g(lin )teel -or%. v. Pfeifer (dis'o&nted to %resent val&e).............................................39
>on"='ono,i' 6osses Pain and )&Fering................................................................................ 3;
" General................................................................................................................................. 36
" Case law................................................................................................................................ 36
o /'$o&gald v. #arber (,al%ra'ti'e for -"se'tion brain da,age).....................................................3;
/itigation................................................................................................................................. 3;
" General................................................................................................................................. 36
" Case law................................................................................................................................ 37
o -olton v. Benes (did not &ndergo o%eration)...................................................................................3@
6oss of -onsorti&,................................................................................................................... 3@
" General................................................................................................................................. 37
-ollateral Bene8ts.................................................................................................................... 3@
" General2................................................................................................................................ 37
" Case law................................................................................................................................ 37
o 0elfend v. )o&t(ern -alifornia 4a%id Transit $istri't ('ollateral so&r'e r&le)...................................3@
P&nitive $a,ages.................................................................................................................... 3@
" General................................................................................................................................. 37
" Case law................................................................................................................................ 37
o )t&r,1 4&ger * -o.1 2n'. v. $a! ('ar a''ident).................................................................................3@
o )tate Far, /&t&al A&to,obile 2ns&ran' -o. v. -a,%bell ('ar a''ident1 %&nitive da,ages
&n'onstit&tional)................................................................................................................................... 3@
Li&ited Duty, -)eial Li&itations on t.e -o)e of Duty................................'#
#eneral.................................................................................................................................... 3A
" Case law................................................................................................................................ 38
o Hania v. Bigan (:&,% in water and drown).......................................................................................3A
/isfesan'e vs. >onfeasan'e.................................................................................................... 3A
" Case law................................................................................................................................ 38
o +eir&, v. 4KO #eneral1 2n'. (radio 'ontest ra'ing).........................................................................3A
=D'e%tion to t(e I>o"$&t!J 4&le.............................................................................................. 39
" 34s 5e6l"6en'e 7la'es t1e 7la"nt"8 "n a 7os"t"on of 7er"l........................................................39
o $a! v. +aKe 0o&se1 2n' (glass in food)...........................................................................................39
Bol&ntaril! Ass&,ed $&ties...................................................................................................... 39
o Floren'e v. #oldberg ('ross wal.'(ild (it)....................................................................................39
)%e'ial 4elations(i%................................................................................................................. 39
" General2................................................................................................................................ 39
" Case law................................................................................................................................ 39
o Farwell v. Keaton (beat &% friend).................................................................................................... 39
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o TarasoF v. 4egents of Cniversit! of -alifornia (%s!'(iatrist .nows of %lans to ,&rder)...................70
$re&ises Liability, Duties of Owners and Ou)iers of Land........................../0
)%e'ial -ategories of =ntrants................................................................................................. 70
" res%ass"n6 C1"ldren............................................................................................................. 40
o #eneral........................................................................................................................................... 70
o /oGier v. Parsons (little girl drown in %ool)......................................................................................70
" 9"re:61ters; 7ol"'e )<'ers; and )t1er 7$.l"' )<'"als2 1e =9"re:61ter4s +$le>..................41
o #eneral........................................................................................................................................... 71
o -(a%,an v. -raig (%oli'e o5'er).................................................................................................... 71
" 0o'"al G$ests......................................................................................................................... 41
o #eneral........................................................................................................................................... 71
o 0a,brig(t v. First Ba%tist -(r&'("=astwood (sli%%ed and fell in '(&r'().........................................71
" +e'reat"onal 7rem"ses........................................................................................................... 41
o #eneral........................................................................................................................................... 71
o 4eed v. =,%lo!ers /&t&al -as&alt! -o ((&nting 'l&b1 tree stand)..................................................72
" Cr"m"nal !ssa"lants................................................................................................................ 42
o #eneral.......................................................................................................................................... 72
o /'-l&ng v. $elta )L&are 6td. Partners(i% (+al"/art atta'.)...........................................................72
" !.ol"t"on?&od":'at"on of Common Law =0tat$s> Cate6or"es.................................................42
o 4owland v. -(ristian (land o''&%ier?s d&t!).....................................................................................72
0rongful Deat.........................................................................................../!
#eneral.................................................................................................................................... 72
-ase law................................................................................................................................... 73
o /oragne v. )tates /arine 6ines1 2n'................................................................................................ 73
o O?#rad! v. Brown (fet&s wrongf&l deat()........................................................................................ 73
o /&r%(! v. /artin Oil -o. (wrongf&l deat( of (&sband).....................................................................73
o B&llard v. Barnes (wrongf&l deat( of '(ild)......................................................................................73
Defenses to Negligene............................................................................../'
$efenses Based on t(e PlaintiF?s -ond&'t...............................................................................73
" Contr".$tory 5e6l"6en'e....................................................................................................... 43
o B&tter8eld v. Forrester (Pole in road w(ile riding (orse)..................................................................77
" Com%arat"#e 5e6l"6en'e....................................................................................................... 44
o Bradle! v. A%%ala'(ian Power -o,%an!..........................................................................................77
o )te(li. v. 4(oads (ATB1 (el,et)...................................................................................................... 77
" !ss$m%t"on of t1e +"s/*E@%ress.......................................................................................... 44
o +olf v. Ford (,one! invest,ent)..................................................................................................... 77
" !ss$m%t"on of +"s/*,m%l"ed................................................................................................. 45
o /&r%(! v. )tee%le'(ase A,&se,ent -o.1 2n' (<o%%er)...................................................................79
o $aven%ort v. -otton 0o%e Plantation 0oriGontal Pro%ert! 4egi,e (stair'ase).................................79
1iarious Liability....................................................................................... /+
#eneral.................................................................................................................................... 79
4es%ondeat )&%erior................................................................................................................ 79
" General................................................................................................................................. 45
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" Case law................................................................................................................................ 45
o Fr&it v. )(reiner (e,%lo!er liabilit! for e,%lo!ee)...........................................................................79
o +ong"6eong v. 0awaiian 2nde%endent 4e8ner!1 2n' ('o,%an! %arties)..........................................79
=,%lo!er"=,%lo!ee 4elations(i% +(o is an I=,%lo!eeJM......................................................7;
" Case law................................................................................................................................ 46
o B&itrago v. 4o(r (balloon advertise,ent)........................................................................................7;
o =r,ert v. 0artford 2ns&ran'e -o. (s(ot in foot)................................................................................7;
=,%lo!er"=,%lo!ee 4elations(i% +as t(e =,%lo!ee A'ting wit(in t(e I)'o%e of
=,%lo!,entJM.............................................................................................................................. 7;
" Case law................................................................................................................................ 46
o -o&rtless v. EolliFe (errand on t(e wa! to wor.)..............................................................................7;
=,%lo!er"=,%lo!ee 4elations(i% Froli's and $eto&rs.............................................................7@
" General................................................................................................................................. 47
" Case law................................................................................................................................ 47
o Farag(er v. -it! of Bo'a 4aton (seD&all! (ostile at,os%(ere).........................................................7@
-trit Liability............................................................................................/7
Ani,als.................................................................................................................................... 7@
" General................................................................................................................................. 47
" Case law................................................................................................................................ 47
o )in'lair v. O.ata (dog bite bo!)....................................................................................................... 7@
Abnor,all! $angero&s A'tivities............................................................................................. 7A
" General................................................................................................................................. 48
" Case law................................................................................................................................ 48
o Fle'ter v. 4!landsN 4!lands v. Flet'(er (reservoir)...........................................................................7A
o 6osee v. B&'(anan (stea, boiler eD%losion)....................................................................................7A
o )iegler v. K&(l,an (gas eD%losion).................................................................................................. 7A
o 2ndiana 0arbor Belt 44 -o. v. A,eri'an -!ana,id -o. (s(i% (aGardo&s '(e,i'als)........................79
o -a,bridge +ater -o. v. =aster -o&nties 6eat(er P6- (water 'onta,ination).................................79
$roduts Liability......................................................................................./2
#eneral.................................................................................................................................... 79
$efenses.................................................................................................................................. 90
='ono,i' in:&r!........................................................................................................................ 91
0istori'al Ba'.gro&nd.............................................................................................................. 91
" Case law................................................................................................................................ 51
o T(o,as v. +in'(ester (dandelion eDtra't)...................................................................................... 91
o /a'P(erson v. B&i'. /otor -o. (w(eel bro.e).................................................................................91
o =s'ola v. -o'a -ola Bottling -o. of Fresno (eD%loding 'o.e)............................................................91
Brea'( of +arrant!.................................................................................................................. 91
o 0enningsen v. Bloo,8eld /otors1 2n'. ('ar for wife).......................................................................91
T!%es of $efe'ts....................................................................................................................... 92
" &an$fa't$r"n6 3efe'ts.......................................................................................................... 52
o Ford /otor -o,%an! v. #onGaleG (tire da,age)..............................................................................92
" 3es"6n 3efe'ts...................................................................................................................... 52
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o Bar.er v. 6&ll =ngineering -o,%an!1 2n'. ((ig("lift loader)..............................................................92
o 0ernandeG v. To.ai (.ids %la! wit( lig(ter)...................................................................................... 92
o Brown v. )&%erior -o&rt (birt( defe'ts)..........................................................................................93
" Aarn"n6 3efe'ts.................................................................................................................... 53
o 6ivingston v. /arie -allender?s1 2n'. (/)#)..................................................................................... 93
o Ea'.son v. -oast Paint and 6a'L&er -o,%an! (<a,,able %aint)....................................................93
One +(o )ells.......................................................................................................................... 93
" General................................................................................................................................. 53
" Case law................................................................................................................................ 53
o Allenberg v. Bentl! (no seat belts)................................................................................................... 93
)ale of Prod&'ts or Provision of )ervi'esM................................................................................ 93
" Case law................................................................................................................................ 53
o 4o!er v. -at(oli' /edi'al -enter (%rost(eti' .nee).........................................................................93
='ono,i' 6oss Proble,............................................................................................................ 97
" General................................................................................................................................. 54
" Case law................................................................................................................................ 54
o /oor,an /an&fa't&ring -o,%an! v. >ational Tan. -o,%an! (storage tan.).................................97
PlaintiF?s -ond&'t.................................................................................................................... 97
" Case law................................................................................................................................ 54
o $al! v. #eneral /otors -or%oration (t(rown fro, 'ar)...................................................................97
o #eneral /otors -or%oration v. )an'(eG (tr&'. rolled).....................................................................97
$oliy and Overview...................................................................................+/
#eneral.................................................................................................................................... 97
P(iloso%(i'al goals of Tort........................................................................................................ 99
='ono,i' #oals........................................................................................................................ 99
0istor!...................................................................................................................................... 9;
Fairness and Ctilit!#eorge Flet'(er...................................................................................... 9;
-a&sation4i'(ard =%stein..................................................................................................... 9@
Fe,inist Pers%e'tives............................................................................................................... 9@
-ritiL&e of Torts4i'(ard Abel................................................................................................. 9@
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Overview
- Tort law governs wrongdoing that isnt necessarily criminal.
- Tort: civil wrong for which the law recognizes a legal remedy on behalf of private monetary damages
- Three Areas of Tort Law:
o Intentional Torts the person has nowingly ca!sed the in"!ry
#ne m!st plead the predetermined sort of in"!ry $battery% assa!lt% trespass% emotional distress%
etc&'. (!st !se the prescribed categories to prevail.
o )egligence
o *trict Liability )o mental state re+!ired. If yo! committed the torti!os act% yo! are liable.
- ,oals of Tort Law:
o -ompensation
o .eterrence
o /!nishment01etrib!tion
o *hifts -osts tort law f!nctions to shift costs to those who sho!ld and0or can pay2 also can spread costs to
all contrib!tors to the ins!rance pool
- 3!rden of /roof in Tort Law: In a tort action% the plaintiff has to prove to a preponderance of the evidence
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Fault-Based Tort Liability
o Brown v. Kendell (biting dog)
- 4acts: The dogs of / and . were fighting. . attempted to separate dogs with a stic and in the process hit / in the eye
ca!sing serio!s in"!ries.
- Iss!es: 5hether there is battery if there was no intention to ca!se harm.
- Arg!ments: . arg!es he sho!ld win if:
o 3oth . and / !sing ordinary care $no strict liability'
o . and / !sing ordinary care $contrib!tory negligence'
o If neither . nor / !sing care $contrib!tive negligence'
- 6olding: )ew trial order. (!st determine the care of both parties. Liability cannot strictly be set on in"!ry.
Intentional Torts
o Overview:
- If harm is intended% the tort is intentional.
- The intent forming the basis of tort liability need not be immoral% malicio!s% or hostile2 instead% it need only be an
intent to affect a legally protected interest in a way that will not be permitted by law.
- *tandard is s!b"ective : The fact that a reasonable person wo!ld have been s!bstantially certain is not dispositive%
b!t only evidentiary in determining whether the defendant act!ally had the re+!isite mental state.
- /!nitive damages may be available
- Transferred Intent : If A intends an assa!lt $battery% trespass to chattel or conversion' on 3 and either 3 or - is !nintentionally
imprisoned% A is still liable for false imprisonment.
- Intentional Torts
o 3attery
o Assa!lt
o 4alse Imprisonment
o Trespass to land
o Trespass to chattels
o -onversion
o Intentional Infliction of 7motional .istress
- Intent:
o In tort law% cond!ct is intentional if the actor has:
/!rposef!l intent . desires to ca!se the conse+!ences of his act #1
8nowing intent . is s!bstantially certain that her acts will ca!se the elements of the tort to
occ!r.
o Battery
Elements of Battery
o 9olitional Act
o Intent:
/!rpose
8nows with s!bstantial certainty that harm will occ!r
o In"!ry: harmf!l $bodily harm' or offensive $offends personal dignity' contact
o Applies a reasonable person standard for offensive contact
o -a!sation: .s vol!ntary action m!st be the direct or indirect legal ca!se of cond!ct. . need not act!ally
contact the victim $hitting with something'
o )o consent or privilege.
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10
Case Law
Garratt v. Dailey (pulling out chair)
o 4acts: ,arratt claims that .ailey% a five-year old% deliberately p!lled a chair o!t from !nder her% ca!sing
her to fall and fract!re her hip. .ailey claims that he moved the chair with the intention of sitting on it
himself and !pon realizing that ,arratt was abo!t to sit down% r!shed to ret!rn the seat. 3eca!se of his
small size he was !nable to get there in time before her fall.
o Iss!e: 5hether the intention re+!irement for battery re+!ires act!al p!rpose or "!st nowing cond!ct:
6ow does .s age affect liability:
o 6olding01easoning: 4or the intentional re+!irement of battery to be met% / m!st prove that . had
s!bstantial certainty that its actions wo!ld res!lt in harm. .s age irrelevant.
3eca!se 3rians nowledge of potential harm is !nclear% 3rian cannot be g!ilty.
;o!ng can be liable if capable of forming intent.
Applies < 1estatement% Torts% =>% ? <@: defines battery as an act done with intention of harm or
offensive contact. -omment s!ggests that intent can also be s!bstit!ted by nowledge that s!ch
action is s!bstantially certain to ca!se harm.
Shaw v. Brown & Willia!on "obacco #orp (!econd hand !o$e)
o 4acts: *haw developed l!ng cancer as a res!lt of second-hand smoe and bro!ght battery claim against
5illiamson.
o Iss!es: .oes . have intention necessary to commit a battery: . wo!ld have to have a s!fficient
nowledge that this wo!ld ca!se l!ng cancer.
o 6olding0reasoning: . cannot now these events are s!bstantially certain to occ!r. .oes not man!fact!re
cigarettes for p!rpose of to!ching non-smoers with second-hand smoe. . not targeting a specific
person.
%i!her c. #arrou!el &otor 'otel( )nc ($noc$ing plate out o* hand)
o 4acts: / attend l!nch in which 4lynn% employee of .% noced plate o!t of 4ishers hand with derogatory
comment. 4isher not act!ally to!ched% b!t embarrassed and feared physical in"!ry.
o Iss!es: 5hether an actionable battery is committed even if there was no direct contact.
o 6olding0reasoning: /hysical contact is not necessary to constit!te a battery so long as there is contact
with clothing or ob"ect closely identified with body.
o +!!ault
General
o .efinition: 4rom /rosser and 8eeton on the Law of Torts $scholarly a!thority': AAn assa!lt is a physical
act of a threatening nat!re or an offer of corporal in"!ry which p!ts an individ!al in reasonable fear of
imminent bodily harm.B
It is /s apprehension of immediate in"!ry which renders a .s act compensable.
o 7lements of Assa!lt:
9olitional Act $eCcl!des p!rely refleCive action'
1arely% b!t sometimes% only verbal threats can created imminent apprehension
Intent: The two senses of intent
/!rpose of harming / or p!tting her in fear
Intent may be established by the transferred intent doctrine:
o If A intends a battery% false imprisonment% trespass to chattel or trespass to land
against 3% b!t instead assa!lts 3% A has established re+!isite intent for assa!lt
o If A intends to assa!lt 3% b!t instead assa!lts -% the intent to assa!lt 3 is
transferred to -.
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Apprehension: The victim m!st perceive that harmf!l or offensive contact is abo!t to happen to
him.
Apprehension can be created witho!t the act!al attempt to ca!se contact.
o If . !ses an !nloaded g!n b!t intentionally leads the victim to believe that the
g!n is loaded% assa!lt occ!rs if the . fires at the victim% even tho!gh the . had
neither the intent nor the ability to shoot the victim. The intent to ca!se
apprehension of immediate contact s!ffices to create the assa!lt
. m!st have the apparent $if not act!al' ability to ca!se imminent harmf!l or offensive
contact.
1easonableness of Apprehension
o -ommon Law -- #b"ective *tandard: Acc to the common law and many co!rts
today% the victims apprehension m!st be the type of fear normally aro!sed in the
mind of a reasonable person.
o =d 1estatement *!b"ective *tandard: 1estatement eliminates re+!irement that
apprehension be reasonable.
-a!sation: The /s apprehension m!st have been ca!sed by the .s actions
Lac of consent0privilege
There is no assa!lt if the / consents or if . is in a relationship of privilege to /.
.amages: It is not necessary to prove act!al damages to s!stain a prima facie case for assa!lt.
Case Law
'olloway v. Wachovia Ban$ & "ru!t #o. (a!!ault in car)
o 4acts: 6allie 6olloway p!rchased car from defendant and then defa!lted. .efendant attempted to
repossess car in paring lot while 6allie% *!e% *wanzett% and .amien were in the car. /laintiffs allege
defendant aimed g!n at them in attempt to repossess car. 6allie and .amien so!ght battery d!e to contact
when defendant reached in the car% all fo!r claimed assa!lt
o 6olding0reasoning: Affirm .amiens assa!lt claim. Assa!lt re+!ires plaintiffs reasonable apprehension
of immediate harmf!l or offensive contact% which as a sleeping baby .amien co!ld not have done.
6owever% a showing of damage is not an essential element to battery% and therefore .amiens arg!ment
co!ld have meritDit is not abo!t hostile intent of defendant% b!t the absence of consent to contact on the
part of the plaintiff. 4or *wanzetts assa!lt% there co!ld have been transferred intent. 7ven tho!gh she
was in the bac of the car% her fear of the g!n $even tho!gh not pointed at her' co!ld be transferred intent
of assa!lt.
o %al!e )pri!onent
General
o .efinition: /rotects an individ!als right to move freely from place to place as she sees fit $1=d ?<.>'
o .irection of E!rispr!dence:
Inward-looing: what "!dge feels is the right answer
Fpward-looing: referring to ,-d% nat!ral law% morality
.ownward-looing: p!blic opinion% what wo!ld the average person say
4orward-looing: commenting on realism and the real problem of the worldDwhat is the optimal
p!blic policy% or cost0benefit analysis
3acward-looing: precedent% stat!tes% case law% scholarly a!thority. 1efers to positivism
$governed by past acts'. This is the most practiced form of "!rispr!dence.
o (eans of -onfinement or 1estraint:
4or false imprisonment to eCist% the victim m!st be confined or restrained
-onfinement may be accomplished by:
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12
Act!al or apparent physical barriers
#verpowering physical force or s!bmission to physical force
Threat of immediate force against the victim% the victims family or others in her
immediate presence% or the victims property
#mission where the . has a legal d!ty to act2 #1
Improper assertion of legal a!thority
o This form of false imprisonment constit!tes false arrest
o 9ictim m!st s!bmit to the arrest for it to constit!te imprisonment
o (eans of coercion that do )#T achieve confinement:
Threats of economic retaliation or termination of employment
Altho!gh some contemporary cases appear to be infl!enced by economic coercion
6ighly coercive b!t non-immediate threats
(erely moral or social press!re is not s!fficient coercion.
o )o (inim!m Time: 4alse imprisonment covers even minimal lengths of detention. Th!s% if A is detained
by 3 for one min!te% 3 is liable for false imprisonment. #bvio!sly% however% the amo!nt of the
compensation awarded will reflect the length of the detention.
o 7lements
Act
Intent
-onfinement% bo!nded place
Case Law
"eichiller v. ,oger! &eorial 'o!pital( )nc (cornered in o**ice)
o 4acts: 1egistered n!rse that claims that her ref!sal to falsify medical records led to this sit!ation.
Teichmiller attempts to leave room to copy medical records and 3ergerson-6awins and #tto stand in her
way. /laintiff claims they wo!ld not let her leave% b!t did not to!ch her. Fpon trying three times to
leave% plaintiff gets past defendant. The other n!rses followed her to copy room where plaintiff liewise
felt trapped.
o Iss!es: -o!ld this be labeled as false imprisonment if / never ased to leave and there was no contact:
o 6olding0reasoning: Teichmillers claim cannot stand. 5hile she was yelled at% o!tn!mbered% and feared
harm she did not as to leave and th!s cannot ass!me that she was being imprisoned. E!dgment for
dismissal affirmed.
o "re!pa!! to -and
General
o /rotects interests in ownership% possession% and secl!sion
o 1estatement $*econd' of Torts ?<GH: *!b"ect to liability if intentionally:
7nters land in the possession of the other% or ca!ses a thing or third person to do so
1emain on the land
4ails to remove from the land a thing which he is !nder d!ty to remove
o 7lements:
An invasion affecting an interest in the eCcl!sive possession of his property.
An intentional doing of the act which res!lts in the invasion.
1easonable foreseeability that the act done co!ld res!lt in an invasion of the /s possessory
interest.
*!bstantial damages to the res $property'
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Case law
#a!e o* "horn!
o 4acts: . c!t a hedge of thorns on his land% which fell on /s land. 6e immediately removed it% b!t going
on his neighbors land to remove the thorns was another instance of trespass.
o 6olding0reasoning: If yo! do something that h!rts someone else% whether yo! did it on p!rpose or not%
even if yo! did it in the act of protecting yo!rself and hit a third party by mistae% even if yo! are doing
something completely legitimate% trespass can be bro!ght against yo!. Trespass% regardless of intent% is
trespass.
+phitheater!( )nc. v. .ortland &eadow! (aphitheater and race trac$)
o 4acts: Amphitheaters% Inc. $/' owned an o!tdoor theater neCt to /ortland (eadows $.'s o!tdoor horse
race trac. A significant amo!nt of light from the race trac spills onto the movie theater% dist!rbing the
pict!re and displeasing movie c!stomers $in some cases / has had to ref!nd ticet fees'. / complained to
. and . made s!bstantial efforts to cover its lights from the theater b!t / was !nsatisfied. / filed action
asserting that .s lights constit!ted a trespass on his land and a n!isance
o 6olding: -o!rt believes that light falls within n!isance b!t not trespass% b!t -o!rt believes that in this
case there was no n!isance beca!se the entry is so lacing in s!bstance that the law will ref!se to
recognize it% applying the maCim de minimis non c!rat leC. Affirmed the r!ling of the trial co!rt. A
possessors interest is not invaded by an intr!sion which is so trifling that it cannot be recognized by the
law.
Bradley v. +erican Selting and ,e*ining #o. (!all particle nui!ance)
o 4acts: . has nown since <>IG that the wind occasionally ca!ses microscopic% airborne particles of
cadmi!m and arsenic from its cooper smelter to blow over 9ashon Island $/s property'. / s!es for
damages in trespass and n!isance.
o 6olding and 1easoning: The F* .istrict -o!rt for the 5estern .istrict of 5ashington shall be notified
for s!ch f!rther action as it deems appropriate. . did have intent to commit trespass beca!se intent is not
necessarily hostile - intent occ!rs if the party is s!bstantially certain that the res!lt will occ!r from his act
and he still acts.
If the intr!sion interferes with the right to eCcl!sive possession of property% the law of trespass
applies. If the intr!sion is to the interest in !se and en"oyment of property% the law of n!isance
applies. . did commit trespass in ca!sing chemical s!bstances to be deposited !pon /s land.
E!st beca!se the delivery $by wind in this case' and the s!bstances $small particles' may be more
compleC than a person waling onto anothers land% it still +!alifies as trespass.
5hile at common law any trespass entitled a landowner to recover nominal or p!nitive damages%
s!ch a r!le is not appropriate here. *o that not every landowner anywhere near a man!fact!ring
plant brings a s!it against the plant% the co!rt re+!ires in these cases that plaintiffs show proof of
act!al and s!bstantial damages.
o "re!pa!! to #hattel!
General
o 5here a defendant A!sesB or AintermeddlesB with anothers possessory interests in personal property.
#ne who commits a trespass to a chattel is s!b"ect to liability only if:
6e dispossesses the other of the chattel% or
The chattel is impaired as to its condition% +!ality% or val!e% or
The possessor is deprived of the !se of the chattel for a s!bstantial time% or
3odily harm is ca!sed to the possessor% or harm is ca!sed to some person or thing in which the
possessor has a legally protected interest
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Case law
#opu!erve( )nc. v. #yber .rootion!( )nc. (/un$ ail)
o 4acts: -omp!serve% Inc. $/' was a ma"or national commercial online comp!ter services company% offering
s!bscribers access to the internet and email acco!nts. -yber /romostions% Inc. $.' sent "!n email on
behalf of itself and its clients to many individ!als% many of whom were /s s!bscribers. /s clients
discontin!ed or threatened to discontin!e service if spam didnt stop. / tried in vain to bloc .s "!n
email. / s!ed for an in"!nction preventing . from sending !nsolicited ads to its s!bscribers% contending
that . is trespassing !pon its personal property.
o 6olding0reasoning: / has a viable claim for trespass to personal property and is entitled to in"!nctive
relief. . has transmitted a s!bstantial vol!me of electronic data to /s proprietary comp!ter e+!ipment%
where . contin!ed s!ch practice after repeated demands to stop% and where . deliberately evaded /s
efforts to protect its comp!ter e+!ipment from s!ch !se. 6arm to the personal property or dimin!tion of
its +!ality% condition% or val!e as a res!lt of .s !se can be the predicate for liability.
Any val!e / realizes from its comp!ter e+!ipment is derived from the eCtent to which that
e+!ipment can serve its s!bscriber base. .s mass mailings demand dis space and drain the
processing power of /s comp!ter e+!ipment% maing those reso!rces not available to serve /s
s!bscribers. Therefore% the val!e of that e+!ipment to / is diminished even tho!gh it is not
physically damaged.
o #onver!ion
General
o The intentional eCercise of control over a chattel belonging to another that is so serio!s an interference
with the others right to control the chattel that the actor m!st be re+!ired to pay the other the f!ll val!e of
the chattel. It is !sed when . completely dispossesses / of an interest in personal property. /hysical
damage is not necessary. -o!rts have historically allowed / to recover the f!ll val!e of the converted
property even if . has not damaged it. 4actors co!rts can !se in determining the serio!sness of the
interference:
7Ctent and d!ration of the actors eCercise of dominion or control
Actors intent to assert a right in fact inconsistent with the others right of control
Actors good faith
7Ctent and d!ration of the res!lting interference with the others right of control
6arm done to the chattel
Inconvenience and eCpense ca!sed to the other
Case law
Bergeron v. +ero Sale!( )nc. (/et *uel and land tran!*er)
o 4acts: 8asper p!rchased several tho!sand gallons of "et f!el and stored it in an !ndergro!nd tan beneath
a private hangar. /raegitzer owned the hangar and f!el tan b!t did not now that 8asper had placed f!el
in the tan. /raegitzer then sold the hangar and f!el tan to -!rtright. 5hen 8asper tried to remove the
f!el% -!rtright ref!sed% saying he had p!rchased the f!el along with the hangar and f!el tan. 8asper
filed conversion claims against both /raegitzer and -!rtright. The trial co!rt r!led against 8asper and
8asper appeals.
o 6olding0reasoning: According to Article = of the F--% a p!rchaser can ac+!ire only the title that his
seller had. There are two potentially relevant eCceptions. 4irst% a person with voidable title can transfer
good title to a good faith p!rchaser for val!e. *econd% where a party has entr!sted goods to a merchant
who deals in goods of that ind% the merchant can transfer all of the rights of the entr!sting party to a
b!yer who p!rchases the goods in the merchants ordinary co!rse of b!siness. 6owever% co!rt decides
that /raegitzers interest in "et f!el did not constit!te Avoidable titleB and the record is devoid of any
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19
evidence that /raegitzer dealt in "et f!el% so neither eCception applies. Therefore% -!rtright ac+!ired only
the title that /raegitzer had power to transfer. Altho!gh /raegitzer had pretty good title to the f!el%
8aspar had better title as there was no evidence that he had abandoned the property% intended to relin+!ish
ownership of the f!el% or lost the f!el% and therefore he still owned the f!el and was entitled to prevail on
his conversion claim against -!rtright.
o )ntentional )n*liction o* 0otional Di!tre!!
General
o +lienation o* +**ection: a male whose wife or da!ghter was sed!ced co!ld claim money damages against
the sed!cer beca!se men rely on wives and da!ghters for essential services and if yo! deprive a man of
these services% yo! owe him the cost of replacing those services with a maid% prostit!te% etc. 5omen
co!ld also bring actions if someone sed!ced their h!sband to compensate for the man being the
breadwinner and also for emotional distress. (ost states got rid of this tort aro!nd <>JI so people started
s!ing !nder II7. instead. Tort is still recognized in abo!t H states $Idaho% 5yoming% )-% 6awaii'. (!st
show that <' the parties to the marriage were happily married% =' their affection was alienated and
destroyed% and @' the defendant bro!ght abo!t that loss. In some states% . does not need to be a lover% it
co!ld be a ch!rch or an in-law.
o ,eneral: II7. eCists when the defendant% by eCtreme and o!trageo!s cond!ct% intentionally or reclessly
ca!ses the victim severe emotional distress. $?KJ'
o 7lements
-ond!ct m!st be intentional or recless
-ond!ct m!st be eCtreme and o!trageo!s
(!st be ca!sal connection between the wrongf!l cond!ct and the emotional distress
7motional distress m!st be severe
Case law
%igueiredo1"orre! v. 2ic$el (p!ychiatri!t !leeping with .3! wi*e)
o 4acts: *ilvio 4ig!eiredo-Torres $/' and his wife went to 6erbert E. )icel $.'% a licensed psychologist% for
marital co!nseling. . advised / to be distant from his wife while sim!ltaneo!sly . was sleeping with his
wife. / filed a complaint seeing damages for negligence and intentional infliction of emotional distress.
o 6olding0reasoning: . was /s psychologist and marriage co!nselor% and new that / was Apartic!larly
s!sceptible to emotional !pset% anCiety% and distress.B 4rom Harris v. Jones% Athe eCtreme and o!trageo!s
character of .s cond!ct may arise from his ab!se of a position% or relation with another person% which
gives him act!al or apparent a!thority over him% or power to affect his interests.B $1estatement $*econd'
of Torts ?KJ comment e $<>JG''. 1!le for /.
#aldor( )nc. v. Bowden (accu!e boy o* !tealing *ro !tore)
o 4acts: *am!el 3owden $.' was a <J-yr old employee at -aldor% Inc. $/'% a retail store. Two of the stores
loss prevention personnel +!estioned him in a room for fo!r ho!rs before forcing him to write and sign an
admission that he stole from the store. The neCt day . ret!rned with his mother% and the stores sec!rity
manager handc!ffed . and made him wait in p!blic view !ntil the police arrived. . testified that he felt
ashamed beca!se his friends saw him removed from the store in handc!ffs% that he tended not to socialize
as m!ch as before% tr!sted others less readily% felt sadness and insec!rity% and had seen a psychologist
once% b!t abo!t a year after the incident and allegedly at the recommendation of his attorney in an effort
to mae it loo realistic before trial. 6owever% he was able to contin!e his normal activities.
o 6olding0reasoning: Appellate co!rt affirms circ!it co!rts grant of "!dgment notwithstanding the verdict
beca!se for emotional distress to be severe% it m!st be so ac!te that Ano reasonable man co!ld be eCpected
to end!re it.B $1estatement $*econd' of Torts ?KJ cmt. E $<>JG''. *everity is meas!red by the intensity of
the response as well as its d!ration.
1;
1;
Defense to Intentional Torts
o &a/or De*en!e!
- -onsent
- *elf-.efense
- .efense of #thers $if yo!re wrong that they were in danger% yo!re liable'
- .efense of /roperty
- .efense of /roperty of Another
- 1ecapt!re of -hattel
- /rivate )ecessity
- /!blic )ecessity
- Imm!nity% *overeign Imm!nity $federal government is beyond s!it eCcept when given permission'
o #on!ent
General
o .efinition: A mentally competent ad!lt who freely consents to anothers cond!ct cannot bring a tort claim
for the harm that follows from that cond!ct. 1estatement $='% *ec H>=2 *mith v. -alvary -hristian
o / may comm!nicate consent by words% actions% or contract
o In #3rien v. -!nard *teamship -o.% doctor was not liable after giving a shot to a woman who later s!ed
for battery after claiming that she did not want the shot despite having eCtended her harm towards the
doctor
o -o!rts have held that minors% intoCicated persons% and those with mental disabilities cannot effectively
consent to an intentional tort $one m!st have s!fficient mental capacity to consent'
o 4ra!d or deception may !nderc!t consent% i.e. .oe v. Eohnson% where .oe consented to seC with Eohnson
b!t did not now that Eohnson had 6I9
o Lac of informed consent in health care is generally regarded today as negligence $malpractice' rather
than battery
Case law
Sith v. #alvary #hri!tian #hurch (church di!agreeent)
o 4acts: / became a ch!rch member in <>HJ. *oon after he told the pastor in private that he had previo!sly
fre+!ented prostit!tes. In <>>< / was removed from the ch!rchs membership beca!se he was
challenging ch!rch leaders over religio!s doctrine. / re+!ested to be reinstated% b!t pastor first re+!ired
him to tell the ch!rch board and his wife that he had seen prostit!tes. / was reinstated b!t warned by the
board that he wo!ld be disciplined if he did not end his divisive cond!ct. 6owever% / contin!ed to ca!se
division. 6e then withdrew his formal membership b!t remained involved. .!e to his contin!ed divisive
cond!ct% the ch!rch AmaredB him by telling his sins to the entire congregation.
o 6olding: Thro!gh his words and deeds% / consented to the religio!s discipline imposed on him% so his tort
claims fail. 9ol!ntary participation in a ch!rch whose members are re+!ired to accept disciplinary
tort!o!s privacy invasions and inflictions of emotional distress in writing as a condition of membership
amo!nts to consent.
'ac$bart v. #incinnati Bengal!( )nc.( p.45 ( *ootball in/ury)
o 4acts: 3roncos were playing the 3engals and -lar% on the 3engals% acting o!t of anger and fr!stration
beca!se his team was losing% !sed his right forearm to hit the bac of /s head and nec with significant
force. / did not report the incident. 6owever soon after he so!ght medical help and discovered that he
had a serio!s nec fract!re in"!ry.
1@
1@
o 6olding0reasoning: Trial co!rt r!led that the game of professional football is violent in nat!re and that the
available sanctions are penalties and eCp!lsion from the game. 6owever% -irc!it -o!rt says that there are
no legal principles% which allow a co!rt to r!le o!t certain tort!o!s cond!ct by reason of general
ro!ghness of the game. In fact% hitting someones nec is prohibited by the playing r!les as well as
general c!stoms of the game. 5hen yo! sign yo!r contract to play for a )4L team% yo!re consenting to
violence. 3!t when yo!re on one nee overlooing a play% yo! are not consenting. /layers consent to
in"!ries eCcept to in"!ries that are eCpressly prohibited by r!les of the game
o Sel* De*en!e
General
o .efinition: An actor is privileged to !se reasonable force% not intended or liely to ca!se death or serio!s
bodily harm% to defend himself against !nprivileged harmf!l or offensive contact or other bodily harm
which he reasonably believes that another is abo!t to inflict intentionally !pon him. $1estatement
$*econd' or Torts ? J@$<' $<>JG''.
Case law
,obert! v. +erican 0ployer! )n!urance #o.( p.67 (re*u!e to leave bar( attac$! police)
o 4acts: A private -hristmas party was taing place in the bar room section of a bar. The bartender told /
that it was a private party% b!t / ref!sed to leave and ate some of their potato chips. The bartender called
the police to complain that / was ca!sing a dist!rbance. A police officer then came and disc!ssed the
nat!re of the complaint with the bartender% the party g!ests% and /% and then arrested / for violation of the
city ordinance against dist!rbing the peace% b!t he did not have an arrest warrant. /olice officer and /
waled o!t of the lo!nge to the police car% with /s hands raised above his head% waling G or J feet ahead
of the officer% and / stopped at least twice to c!rse and state that he was on probation and wo!ld as soon
die as go to "ail. As they neared the car% / t!rned aro!nd% lowered his hands% and grabbed for the officer.
The policeman stepped bac and fired one shot which entered /s lower left "aw and eCited thro!gh his
nec.
o 6olding0reasoning: -o!rt concl!ded that the officer lawf!lly arrested / and was "!stified in shooting / by
self-defense. In deciding the validity of a self-defense claim% the co!rt considers the relative size% age%
and strength of the parties% their rep!tations for violence% who was the aggressor% the degree of physical
harm reasonable feared and the presence or absence of weapons. A person also may defend against an
intentional tort claim by asserting a defense of others. In general% a person may defend a third person in
the same manner% and !nder the same conditions% as the person being defended wo!ld be able to do in self
defense. $1estatement $*econd' of Torts ? LJ $<>JG''
o De*en!e o* .roperty
General
o A person may !se reasonable force to protect property when she reasonably believes that force is
necessary to prevent the intr!sion. $1estatement $*econd' of Torts ? LL $<>JG'.
o As with self -defense% !se of force m!st be proportional to threatened interest% b!t proportionality
generally does not eCist when yo! !se deadly force to protect only property.
Case law
Kat$o v. Briney (!pring gun)
o 4acts: . owned an HI-acre tract of land on which was an !ninhabited boarded-!p farmho!se that had
been broen into and vandalized many times over ten years despite . boarding !p windows and doors
and posting Ano trespassB signs. After the last trespass% . set !p a spring g!n which wo!ld fire when the
door to the bedroom was opened. There was no warning to intr!ders abo!t the g!n. / and his friend
1A
1A
broe into the ho!se to steal old bottles and dated fr!it "ars which they considered anti+!es. / started to
open the bedroom door and was shot in the leg above his anle. (!ch of his leg incl!ding part of his
tibia was blown away and he stayed in the hospital for KI days.
o 6olding0reasoning: -o!rt said that% AAn owner of premises is prohibited from willf!lly or intentionally
in"!ring a trespasser by means of force that either taes life or inflicts great bodily in"!ry. The only time
when s!ch cond!ct of setting a Mspring g!n or a lie dangero!s devise is "!stified wo!ld be when the
trespasser was committing a felony of violence or a felony p!nishable by death% or where the trespasser
was endangering h!man life by his act.B
o .rivate 2ece!!ity
General
o .efinition: A person is privileged to enter or !se anothers property $commit trespass to land or chattel or
conversion' in what reasonably appears to be an emergency threatening serio!s bodily harm or property
damage. It is a +!alified privilege beca!se it still re+!ires the defendant to compensate the property
owner for any damage ca!sed.
Case law
.loo* v. .utna (oor to doc$)
o 4acts: . owned an island with an attached doc. / was sailing on the lae with his wife and two children.
There was a dangero!s storm and to save his family and boat% / moored his boat to .s doc. .s servant
!nmoored the boat% ca!sing it to be destroyed and ca!sing in"!ries to /.
o 6olding0reasoning: There are many eCamples which hold that necessity will "!stify entries !pon land and
interferences with personal property that wo!ld otherwise have been trespasses. This applies especially to
the preservation of h!man life.
8incent v. -a$e 0rie "ran!portation #o. (!tor( !hip de!troy! doc$)
o 4acts: .s steamship% the 1eynolds% was moored to /s doc in order to !nload cargo. 5hile !nloading% a
strong storm developed s!ch that after !nloading was complete% the 1eynolds co!ld not leave safely.
.!ring the night% the ship repeatedly hit /s doc and allegedly ca!sed NGII damage to the doc. / s!ed
to collect for damages.
o 6olding0reasoning : . owes / the amo!nt of damages ca!sed to /s doc. A person who damages
anothers property to avoid an in"!ry to himself in an emergency is liable for the damages. 6aving
preserved their ship at the eCpense of the doc% it seems fair that . pay to / the amo!nt of in"!ry ca!sed
to /s doc. If the ship had been blown loose by the storm and str!c another ship or doc% . wo!ld not
have been liable.
o Importance: This is the seminal case in which a party% acting o!t of necessity% intentionally enters $or
!ses' anothers property for his benefit% and even tho!gh that necessity privileges the entry% the actor is
nonetheless held liable for harm done to the property regardless of whether the actor was at fa!lt or not.
This is a form of strict liability imposed on permissible self-help efforts. (ost of the law of intentional
torts does not come in this form. (ost of the time one is liable for an intentional tort beca!se one has
acted wrongf!lly% and where one has not acted in a socially !nacceptable way% that is where on typically
has a complete privilege and is not held liable.
o .ublic 2ece!!ity
General
o .efinition: #ne is privileged to commit an act that wo!ld otherwise be a trespass to chattel% trespass to
land% or conversion if the act is or is reasonable believed to be necessary for the p!rpose of avoiding a
p!blic disaster.
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o 1estatement = *ec =J=: trespass for the sae of what is reasonably believed to be a p!blic necessity is
privileged
Case law
9S v. #alte: (.hilippine!)( )nc. ( 9S de!troy petroleu plant! during war)
o 4acts: -alteC owned terminal facilities in (anila !sed to receive% handle% and store petrole!m prod!cts
!sed by F* d!ring 55II. F* forces controlled (anila b!t when the Eapanese advanced and entered
(anila% the F* military re+!isitioned the oil depots and ordered the destr!ction of all remaining
petrole!m prod!cts and the vital parts of the plants to deprive the Eapanese from !sing the facilities. After
the war% -alteC demanded compensation for all the property which the army had !sed or destroyed. The
government paid for the petrole!m stocs b!t ref!sed to pay for the destr!ction of the terminal facilities.
o 6olding0reasoning: The co!rt below erred in holding that -alteC has a constit!tional right to
compensation. 6olding reversed. The armys p!rpose was limited to the sole ob"ective of destroying
property of strategic val!e to prevent the enemy from !sing it to wage war. *- says that an arg!ment
from US v. Pacific R. Co. governs this case: In that case% the *- said% AThe destr!ction or in"!ry of private
property in battle had to be borne by the s!fferers alone. The necessities of war called for and "!stified
this. The safety of the state in s!ch cases overrides all considerations of private loss.B 6ad the facilities
been destroyed after the army retreated% -alteC wo!ld certainly have no claims to compensation. 3!t the
army did not hesitate.
o 2on1De*en!e!
- Age is not a per se defense to an intentional tort
- (ental illness or retardation is not a defense to an intentional tort
- Low intelligence is not a per se defense to an intentional tort
Negligene
o General
" 3y preponderance of the evidence% / m!st show:
o .!ty of reasonable care to /
o 3reach of d!ty
o -a!sation: .s breach was a Aca!se in factB $act!alD.s negligent cond!ct in some way bro!ght abo!t
/s in"!ry' and AproCimate ca!seB $legalDthe ca!sal connection between .s negligent cond!ct and /s
in"!ry was s!fficiently close to hold liable'
o In"!ry
o "he Duty Standard
General
o 1easonable person standard
Areasonable person of ordinary pr!dence% !nder the circ!mstancesB
#b"ective standard
o If yo! mae the standard ob"ective it is !npredictable law. Fndercompensation may also res!lt. (ay
enco!rage st!pidity beca!se they will be less liable.
o 7lderly% -hildren% (entally .isabled:
7lderly people are normally held to the ordinary ad!lt standard of care. *ome co!rts alter the
standard if they have physical disabilities as a res!lt of their age.
/arents are not liable for the negligence of their children. They can only be held liable for
negligent s!pervision of their children.
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. in negligence cases has an important defense called contrib!tory negligence. At common law%
if . was negligent b!t / was also negligent% / lost. That is the old common law r!le. The more
modern r!le is that contrib!tory negligence is not a complete defense. If / has also been
negligent and contrib!ted to her own in"!ry% she may still get paid b!t get paid a little less.
It was sometimes said that children can be negligent b!t not contrib!torily negligent. A policy
reason for this is that we sho!ld eCpect children to be ca!tio!s abo!t others welfare b!t we cant
eCpect children to pay attention to their own welfare.
Case law
8aughan v. &enlove( p.5; (hay !tac$ catche! on *ire)
o 4acts: / owned two cottages% and . owned some b!ildings neCt door. . placed a hay stac on his
property near /s cottages. (any others warned . that the hay as it was wo!ld liely s!ddenly b!rn% b!t
. said he Awo!ld chance it.B It b!rst into flames and destroyed both his property and /s cottages.
o 6olding0reasoning: 5e sho!ld apply an ob"ective standard to d!ty of care. 7veryone warned . that it
was a bad idea to leave his hay as he did b!t he ignored their warnings% so . was not acting as a
reasonable person of ordinary pr!dence wo!ld !nder the circ!mstances.
#harbonneau v. &acrury( p.5< (child !tandard)
o 6olding: A child in minority is not held to reasonable person standard b!t is only re+!ired to eCercise a
degree of care which children of the same age% eCperience% capacity% and !nderstanding wo!ld eCercise
!nder the same circ!mstances.
Daniel! v. 0van!( p.55 (inor driving vehicle)
o 4acts: .aniels died age <L when his motorcycle collided with .s car. The administrator for his estate
s!ed for damages. . raised contrib!tory negligence as a defense. E!ry fo!nd . liable and awarded /
NJ%>HJ. . appealed.
o 6olding0reasoning: A minor operating a motor vehicle m!st be "!dged by the same standard of care as an
ad!lt. It wo!ld be !nfair to the p!blic to permit a minor in the operation of a motor vehicle to observe
any other standards of care and cond!ct than those eCpected of all others. #ne cannot now whether the
operator of an approaching a!tomobile is a minor or an ad!lt. 6eld reliable to same degree of care as an
ad!lt when participating in ad!lt activities. #thers do not now whether the person in a car is a minor or
ad!lt% need to do this for p!blic safety.
Breunig v. +erican %aily )n!urance #o.( p.7=> (delu!ion! while driving)
o 4acts: 7rma 9eith had an insane del!sion which directly affected her ability to operate her car in an
ordinarily pr!dent manner and ca!sed her to crash into a field.
o 6olding0reasoning: 9eith is not liable beca!se she had no forenowledge that she was s!sceptible to
s!dden del!sions. ,enerally insanity is not a defense. /olicy reasons for holding insane people liable:
5here on or two innocent persons s!ffer a loss% it sho!ld be borne by the one who ca!sed it
To ind!ce those interested in the insane persons estate to control him
*o that people do not falsely claim insanity
o 6owever% certain types of insanity sho!ld eCc!se a person from liability. The mental illness m!st affect
the persons ability to !nderstand his d!ty to drive his car with ordinary care or his ability to control his
care in an ordinarily pr!dent manner. 6e m!st also not have nown that he may be s!ddenly s!b"ect to
s!ch insanity. If yo! have a s!dden mental illness0seiz!re% yo! are not liable beca!se a reasonable person
cannot tae preca!tions against an illness they do not now abo!t% b!t if yo! do now that yo! are s!b"ect
to del!sions or seiz!res% the law says that yo! o!ght not to engage in that activity. A s!dden mental
incapacity e+!ivalent in its effect to s!ch physical ca!ses as a s!dden heart attac% seiz!re% or stroe
sho!ld be treated alie.
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o "he Breach o* Duty
General
o A5here an act is one which a reasonable man wo!ld recognize as involving a ris of harm to another% the
ris is !nreasonable and the act is negligent if the ris is of s!ch magnit!de as to o!tweigh what the law
regards as the !tility of the act or of the partic!lar manner in which it is done.B $1estatement $*econd' of
Torts ?=><'
Hand Test
o If $3!rden O -ost of In"!ry C /robability of occ!rrence'% then the acc!sed will not have met the standard
of care re+!ired.
o If $3!rden P -ost of in"!ry C /robability of occ!rrence'% then the acc!sed may have met the standard of
care.
o 6and Test is "!stified both on economic social welfare and fairness gro!nds:
7conomic: cost-benefit negligence tends to advance overall social welfare by ind!cing actors to
tae the right level of preca!tions. *ociety is best off if actors tae preca!tions against accidents
when the benefits of those preca!tions eCceed their costs. .efining negligence in cost-benefit
terms deters actors from creating riss that fail this cost-benefit test while permitting them to
create cost-"!stified riss witho!t fear of negligence liability.
4airness: 7veryone sho!ld be free to create Areasonable rissB b!t sho!ld refrain from creating
A!nreasonableB riss
o #b"ections:
4ails cost-benefit analysis. 6igh information costs $costs to the parties and co!rt of obtaining
reliable information abo!t 3% /% and L' inflate the administrative costs of the negligence system.
Also% if reliable information is diffic!lt or impossible to obtain% 6and 1!le "!dgments will
fre+!ently be wrong.
-annot be applied !nless 3% /% and L can be eCpressed in terms that permit one to mae a
+!antitative comparison between them $hard to val!e personal in"!ries or deaths'
lternatives to Hand Test
o 4oreseeable-danger approach: 1easonably pr!dent people are eCpected to do everything possible to avoid
creating foreseeable dangers to others. Actors are liable regardless of Athe diffic!lty of remedial
meas!res.B
o -omm!nity-eCpectations approach: 1easonably pr!dent person confirms to the prevailing eCpectations in
the comm!nity abo!t consideration for the safety of others.
Case law
9S v. #arroll "owing #o.( p.77= (bargee leave! and barge cau!e! daage)
o 4acts: The AAnna -%B a barge% broe away from the pier it was tied to% hit a taner% and san with all its
cargo aboard. The F*% lessee of the QAnna -Q and owner of the lost cargo% s!ed -arroll Towing -o.% the
barges owner% claiming that the presence of the bargee wo!ld have prevented the losses.
o 6olding01easoning: . was liable for negligence for not having a bargee aboard the ship witho!t eCc!se
d!ring daylight ho!rs. /roposed the 6and Test% which determines the standard of care for negligence: the
owners d!ty to provide against res!lting in"!ries is a res!lt of <' the probability that the barge will brea
away% =' the gravity of the res!lting in"!ry% and @' the b!rden of ade+!ate preca!tions. Liability depends
!pon whether the b!rden is less than the probability that the barge breas away times the gravity of the
res!lting in"!ry.
Grie! v. 2or*ol$ ,ailway #o.( p.77; (wal$ing by ,, trac$!( in/ured)
o 4acts: ,rimes $/' wored as a cond!ctor for )orfol 1ailway $.'. After his train str!c a car which was
sitting on the tracs% he eCited the train and waled bac to inspect the train for damage or derailed cars.
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22
*ince the area directly ad"acent to the trac was too steep% he waled <I-<= feet from the ends of the ties%
b!t accidentally stepped into a hole% res!lting in in"!ries. / alleged negligence on the part of . for failing
to maintain a safe walway.
o 6olding0reasoning: .s motion for s!mmary "!dgment denied. 4act!al iss!es of 6and Test raise iss!es
that are inappropriate for s!mmary "!dgment.
Brotherhood Shipping #o. v. St. .aul %ire & &arine )n!urance #o.( p.77? (*reighter daage!( city liable)
o 4acts: !"# Ca$etan %iannis% a freighter% was damaged and temporarily p!t o!t of service in an accident in
the /ort of (ilwa!ee. The district co!rt granted the citys motion for s!mmary "!dgment. The ships
owner bro!ght a negligence action against the -ity of (ilwa!ee.
o 6olding0reasoning: 1eversed the district co!rts "!dgment beca!se there is evidence that a reasonable
person co!ld infer the city was negligent. -o!rt applies the 6and Test. The potential cost of in"!ry%
which incl!ded potential loss of life% was s!bstantial. The lielihood of s!ch an accident was relatively
large given the history of similar accidents. The b!rden was low since the city co!ld have taen several
relatively ineCpensive preca!tions% incl!ding maing a str!ct!ral alteration to the harbor% maintaining
pilots% t!gs% and linesmen aro!nd the cloc% or giving early warning to ship masters berthed at AbadB slips%
b!t did nothing.
o "he ,ole o* #u!to
Case law
&ayhew v. Sullivan &ining #o.( p.775 (*ell through ladder hole)
o 4acts: (ayhew $/' was a contractor woring in a mine shaft for .. / claimed that . negligently c!t a
=C@ ladder hole in the platform on which he stood b!t provided no warning% barrier% or light to inform him
of its presence. / fell thro!gh and s!ffered many in"!ries. E!ry fo!nd negligence and ret!rned a verdict
for / for N=%GII.
o 6olding0reasoning: Trial co!rt verdict affirmed. In determining negligence% it does not matter if the
negligent act is typically done. A-!stomB and AaverageB are irrelevant when determining ordinary care.
"he ".@. 'ooper( p.7;= (radio !et!)
o 4acts: Two t!gs% the T.E. 6ooper and the (ontrose% each with three barges carrying coal% left 6ampton
1oads% 9A bo!nd for ); and )ew 7ngland. )ear Atlantic -ity they enco!ntered strong winds and heavy
seas and two barges san% at least one d!e to a lea.
o 6olding0reasoning: The t!gs sho!ld have been e+!ipped with woring radio receiving sets. It is not an
acceptable defense to say that the shipping ind!stry had not yet generally re+!ired radio sets. There are
preca!tions so imperative that even their !niversal disregard will not eCc!se their omission. 6ad the t!gs
been properly e+!ipped% they wo!ld have heard bad weather reports. The in"!ry was a direct conse+!ence
of this !nseaworthiness.
Doe v. #utter Biological( )nc.( p.7;7 (')8 *ro blood tran!*u!ion)
o 4acts: Eohn .oe and Eohn *mith were hemophiliacs who received 4actor 9III% a clotting agent. They later
tested 6I9 positive% claimed they were infected from 4actor 9III d!ring <>H@% and s!ed the fo!r
man!fact!rers of 4actor 9III for negligence. The district co!rt granted s!mmary "!dgment in favor of the
defendants and / appealed.
o 6olding0reasoning: .istrict co!rt was incorrect in holding that . was not negligent as a matter of law. /
introd!ced significant evidence indicating that the man!fact!rers of 4actor 9III co!ld have taen steps to
prevent /s inflection with 6I9. /roof of adherence to an ind!stry practice is not dispositive on the iss!e
of negligence. The possibility that ind!stry standards may fall short of reasonable care is partic!larly
ac!te when an ind!stry has few players% who may have wored closely in developing the Aind!stry
standards.B
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C&stom as $$lied in !edical !al$ractice
Brune v. Belin$o**( p.7;< (local edicine( e:ce!!ive do!age)
o 4acts: / had a baby in )ew 3edford% (A. .!ring delivery% . administered a spinal anesthetic to /
containing Hmg of pontocaine. / s!bse+!ently had n!mbness and weaness in her left leg% and there was
evidence that her condition res!lted from an eCcessive dosage of pontocaine. The trial co!rt instr!cted
the "!ry based on the AlocalityB r!le from Small v. Howard% which said that a doctor in a small town
re+!ested to perform s!rgery Awas bo!nd to possess that sill only which physicians and s!rgeons of
ordinary ability and sill% practicing in similar localities% with opport!nities for no larger eCperience%
ordinarily possess.B
o 6olding0reasoning: The AlocalityB r!le is !ns!ited to present day conditions. The proper standard for
general practitioners is whether he eCercised the degree of care and sill of the average +!alified
practitioner. It is permissible to consider the medical reso!rces available to the physician and the type of
comm!nity in which the physician wors. *pecialists sho!ld be held to the standard of care and sill of
the average member of the profession practicing the specialty% and it is permissible to consider the
medical reso!rces available to him.
'elling v. #ary( p.7;5 (glaucoa)
o 4acts: 3arbara 6elling $/' s!ffers from primary open angle gla!coma. *he went to .r. -ary $.'% an
ophthalmologist% several times from <>G> thro!gh <>JH concerning irritation which . ass!med was
ca!sed by her contact lenses. In <>JH% . tested /s eye press!re for the first time% which indicated that
she had gla!coma.
o 6olding0reasoning: 1easonable pr!dence re+!ired the timely giving of the press!re test. The reasonable
standard that sho!ld have been followed was the timely giving of this simple% harmless press!re test to /.
In failing to do so% . was negligent. -!stom cannot prevent liability.
#anterbury v. Spence( p.7>? (bac$ hurt( !lipped o** ho!pital bed)
o 4acts: / was <> when he began to eCperience bac pain. 6e went to .r. *pence $.'% a ne!ros!rgeon% who
after performing several tests in vain% performed a nyelogram which revealed a Afilling defectB in /s
vertebra and then recommended a laminectomy to correct what he s!spected was a r!pt!red disc. 5hen
ased if the operation was serio!s by /s mother% . replied Anot anymore than any other operation.B After
the operation% / slipped off his hospital bed% and there was no one to assist him or side rail to prevent his
fall. . performed one more small s!rgery% b!t / s!ffered eCtensive in"!ries incl!ding paralysis from the
waist down.
o 6olding0reasoning: A physicians d!ty to inform the patient of riss is rooted in principles of individ!al
a!tonomy and control over ones body. The test for determining whether a partic!lar peril m!st be
div!lged is its materiality to the patients decision. A ris is material when a reasonable person% in what
the physician sho!ld now to be the patients decision% wo!ld be liely to attach significance to the ris in
deciding whether to forego the proposed therapy. A physician sho!ld eCplain the potential hazards of the
proposed treatment% the alternatives to that treatment% and the liely res!lts if the patient remains
!ntreated. There are two eCceptions: <' when the patient is !nconscio!s or incapable of consenting and
harm from a fail!re to treat is imminent and o!tweighs potential harm by the proposed treatment% and ='
when disclosing the riss to the patient is more harmf!l than the potential harm by the proposed
treatment.
o #riinal State!( #ivil Statute!( and 2egligence .er Se
General
o 5hen a common law d!ty of care is already owed% and a stat!te provides that specific cond!ct breaching
d!ty that is s!b"ect to criminal penalties% !nder appropriate circ!mstances% co!rts may !se violation of the
criminal stat!te to establish breach of d!ty in a civil negligence. In these cases% breach of stat!te
constit!tes negligence per se.
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o In certain sit!ations a criminal stat!te $or administrative reg!lation or m!nicipal ordinance' may be !sed
to set the standard of care in negligence cases
o Fnder negligence per se% a specific legislative standard replaces the more general reasonable person
standard
o Two-part test to determine relevance of stat!te:
5hether the stat!te is deigned to protect a person similar to the /
4rom a ris of in"!ry that similar to that s!ffered by this /
Case law
O!borne v. &c&a!ter! (*orgot poi!on labeling)
4acts: . sold deadly poison to / witho!t labeling it% as re+!ired by stat!te.
6olding0reasoning: .s fail!re to perform the d!ty constit!tes negligence% and renders . liable
for in"!ries.
&artin v. 'erAog (buggy not u!ing light!)
o 4acts: -rash between b!ggy and car. 3!ggy was not !sing lights. / and h!sband were traveling in a
b!ggy when the . hit them while traveling in his car. It was rather dar and b!ggy had no lights2 the car
did have lights on. / charged . with negligence for not staying to the right of the highway. . charges /
with contrib!tory negligence for not traveling with lights on the b!ggy. There was a stat!te in );
6ighway Law re+!iring lights for the safety of others and yo!rself. . was denied a "!ry instr!ction that
the absence of light on the wagon was prima facie evidence of contrib!tory negligence.
o 6olding0reasoning: )o +!estion to "!ry as matter of breach. . was negligent as a matter of law. .riving
wagon witho!t lights after dar is negligence per se. Trial co!rt sho!ld have !pheld .s re+!est for an
instr!ction that absence of light on /s vehicle is prima facie evidence of contrib!tory negligence.
FneCc!sed omission of the stat!torily re+!ired lighting is negligence per se. To omit safeg!ards
prescribed by stat!te for the benefit of others is to fall short of the d!ty of diligence owed toward the rest
of society. The trial co!rt erred in giving the "!ry the power to relaC the d!ty that /s intestate owed to
other travelers.
8e!ely v. Sager (liable *or !erving alcoholic beverage!)
o 4acts: /rovide alcoholic beverages to c!stomer who% as a res!lt of intoCication% in"!red third person.
o 6olding0reasoning: Imposed liability for in"!ries inflicted by their intoCicated patrons. .epends on what
nowledge the bartender had or sho!ld have had as o the patrons propensities. 5ith proCimate ca!se% the
intoCicated patrons negligent acts m!st be held foreseeable. Liely that patron may inflict in"!ries.
Brown v Shyne (chiropractor without licen!e)
o 4acts: -hiropractor who performed service that only physicians were permitted to perform by law.
1es!lted in paralysis% b!t not acting o!tside of standard of care.
o 6olding0reasoning: )ot per se negligent% even tho!gh violation of licensing stat!te. 4ail!re to comply
with stat!te is not necessarily relevant to ones safety or competence in performing the licensed activity.
/!rpose is to protect p!blic from !nlicensed doctor% b!t this is directly related to treatment. Action of .
not proCimate ca!se of /s in"!ry.
o .roo* o* 2egligence
Case law''(verview
Baltiore & Ohio ,.,. v. Goodan (train cra!h into car)
o 4acts: Train crash into car.
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o 6olding: -o!rt fo!nd / was also negligent beca!se he did not red!ce his spread. E!dgment for 1.1. As a
matter of law% reasonableness dictates that a motorist m!st get o!t of his car and loo both ways before
crossing 11 tracs.
.o$ora v. Waba!h ,y. (train cra!h( train !till had tie to !top)
o 4acts: /oora in"!red by train. Train was not visible to /oora while there was still time to stop.
o 6olding0reasoning: Limits ,oodman% saying that often getting o!t to loo both ways wo!ld act!ally
increase the danger to the motorist. E!dgment for /.
Wil$er!on v. &c#arthy (*ell in ,, pit)
o 4acts: / was a 11 switchman who was performing d!ties and fell into a pit% s!ffering personal in"!ries.
There were chains !p while the pit was in !se% . arg!es / was negligent. 6owever% 11 never forbid
worers to wal across pit.
o 6olding0reasoning: *afety preca!tions inade+!ate. -ontrib!tory negligence shall not bar a recovery.
*!bmit +!estions to "!ry.
Case law)Res *$sa Lo+&it&r
General:
o AThe thing speas for itselfB
o Allows / to s!rvive .s motion to dismiss at the close of the /s case.
o 5igmore on 7vidence ?=GI>
The event m!st be of a ind which ordinarily does not occ!r in the absence of someones
negligence.
(!st be ca!sed by something in eCcl!sive control of ..
(!st not have been d!e to vol!ntary action on part of /.
o 1estatement ?@=H.
6arm s!ffered ca!sed by negligence of . when
7vent is of ind that ordinarily does not occ!r witho!t negligence
#ther responsible ca!ses% incl!ding cond!ct of the / and third person% are s!fficiently
eliminated by evidence.
)egligence within scope of .s d!ty to /
4!nction of co!rt to determine whether inference may be reasonably drawn.
4!nction of "!ry to determine whether inference is drawn in any ca!se where different
concl!sions may reasonably be reached.
o 5igmore0/rosser Test
3est eCplanation for accident is negligenceDco!ldnt have happened witho!t negligence--#ther
pla!sible ca!ses m!st be r!led o!t
. had d!ty to / $this criteria does not appear on everyones listD1estatement'
. eCcl!sive control over agent of instr!mentality of the in"!ry
)o vol!ntary contrib!tion by /
E!dge decides law% "!ry decides fact
Byrne v. Boadle (*lour *alling)
o 4acts: 3arrel of flo!r fall from !pper floor of a b!ilding. / hit on head with flo!r barrel which fell from
.s second story window. )o evidence of what ca!sed flo!r barrel to fall.
o 6olding0reasoning: 7vent does not occ!r !nless someone is negligent. 4lo!r falling is prima facie
evidence of negligence and / is not bo!nd to show that it co!ld not fall witho!t negligence. E!dgment for
/.
2;
2;
-ar!on v. St. %ranci! 'otel (ar chair)
o 4acts: #verst!ffed arm chair falls o!t of window and / wals by% she s!es hotel. . moves for s!mmary
"!dgment.
o 6olding0reasoning: 1es ipsa does not apply. 6otel has no eCcl!sive control over chair. -annot watch
every single g!est. Fse reasonable care.
*ets forth @-part test:
Accident
Thing was !nder eCcl!sive control and management of the defendant
o Taen literally% this posed a s!bstantial h!rdle to /. )ow% even in those
"!risdictions that contin!e to adhere to the traditional elements have liberalized
the eCcl!sive control element. It is !s!ally eno!gh for the / to provide evidence
showing that others were probably not the responsible party and the defendant
probably was.
o Fnder traditional form!lation% / was re+!ired to prove that his in"!ry was not d!e
to any Qvol!ntary actQ by /% or that /Rs own cond!ct was not a significant
ca!sative factor% or% most recently% that / was not contrib!torily negligent.
6owever% most "!risdictions recognize that this element has lost m!ch of its
importance either beca!se of the advent of comparative fa!lt or beca!se the foc!s
is encompassed within the showing that the . has probable control.
Accident was s!ch that in ordinary co!rse of events% the . !sing ordinary care% the
accident wo!ld not have happened.
Brown v. .oway 9ni*ied School Di!trict (lunch eat)
o 4acts: / s!ed after he slipped and fell on .s property from fresh slice of l!nch meat.
o 6olding0reasoning: Fsed @-part test from Larson. There is no basis for accident not occ!rring in absence
of negligence or that it was ca!sed by .s eCcl!sive control. *!mmary "!dgment for ..
Res *$sa in !edical !al$ractice
Bbarra v. Spangard (too uch ane!thetic( !houlder paralyAed)
o 4acts: /laintiff entered hospital for a s!rgical operation for an appendectomy. The proced!re was to be
performed by .r. *pangard at a hospital owned by .r. *wift. The / was generally anesthetized% and woe
!p from the s!rgery with pain in his right sho!lder that was later paralyzed. This in"!ry was ca!sed by
some in"!ry or tra!ma to his sho!lder% most liely d!ring the operation itself.
o 6olding0reasoning: 1es ipsa lo+!it!r applies in this case% and when a / receives !n!s!al in"!ries while
!nconscio!s% all .s who had control over his body sho!ld be called !pon to meet the inference of
negligence by giving an eCplanation of their cond!ct. 1es ipsa lo+!it!r applies in this case beca!se:
The n!mber or relationship of the .s does not alone determine if res ipsa lo+!it!r applies.
It is eno!gh that the plaintiff can show an in"!ry res!lting from an eCternal force applied to him
while he was !nconscio!s on the table&he sho!ldnt have to prove what instr!mentality ca!sed
the in"!ry.
"ause In Fat
o CBut1%orD #au!ation
General
o 5o!ld the accident have occ!rred b!t for the .s negligent cond!ct:
2@
2@
Case law
-yon! v. &idnight Sun "ran!portation Service! (pulled into tra**ic( hit by truc$)
o 4acts: / p!lled o!t into traffic% hit by tr!c driven by ..
o 6olding0reasoning: . negligent% b!t not necessarily ca!se of action. E!dgment for . where co!rt notes
element of ca!sation is lacing.
Dapp v. -ar!on (health aide !lip! on !tep!( blae on rug)
o 4acts: 6ome health aide slips on steps and sees mat at the bottom of the staircase. Ass!mes it was the
mat and acc!ses homeowner of negligence.
o 6olding0reasoning: *he cant be s!re that thats what ca!sed her to fall.
Willia! v. 0ro &ar$eting #opany (!lipped on ice)
o 4acts: / slipped and fell on ice at premise of 7(1# store. / did not see ice% b!t there was a witness that
did.
o 6olding0reasoning: -irc!mstantial evidence is eno!gh to s!rvive a s!mmary "!dgment. A person who is
in"!red may not see everything.
o &ultiple #au!e! and Sub!tantial %actor "e!t
General
o *econd 1estatement: As!bstantial factor testB
*ection K@= $a':.s cond!ct was s!fficient to ca!se in"!ry and0or .s cond!ct was approCimately
e+!al in scope as other cond!ct or events
/roposed Third 1estatement% *ec. =L% =IIL: AIf m!ltiple acts occ!r% each of which wo!ld have
been a Sfact!al b!t for ca!seT of the physical harm at the same time in the absence of the other
act$s'% each act is regarded as a fact!al ca!se of harm.B
Case law
+nder!on v. &inneapoli!( St .aul and Sault Ste. &arie ,y. #o. (any bog *ire!)
o 4acts: #ne of . engines started fire in bog near property. .oes not now how fire originated% b!t there
were also other fires b!rning that combined with . fire. Therefore% it may be that .s fire was not the
proCimate ca!se of damageDwo!ld it have b!rned /s property if it had not combined with other fire:
o 6olding0reasoning: .s fire needed to be temporally prior and s!fficient to have ca!sed property damage.
If / s!stains in"!ry as res!lt of negligent cond!ct of two tortfeasors% and it appears that the cond!ct of
either one alone wo!ld have been s!fficient to ca!se the in"!ry% both are nevertheless liable if each act
was a s!bstantial factor in ca!sing the in"!ry. 4or /.
Dillon v. "win State Ga! & 0lectric #o . (boy electrocuted on bridge)
o 4acts: 3oy playing on bridge with electric c!rrent. 6e tripped and grabbed onto a wire so he wo!ldnt
fall. 6e was electroc!ted.
o 6olding0reasoning: #nly liability for . was in eCposing him to the danger of the charged wires. )ot
liable beca!se boy probably wo!ld have fallen and died anyway. There are m!ltiple s!fficient ca!ses% as
in Anderson% b!t they are iss!es of fact% so no s!mmary "!dgment.
2A
2A
o #au!e in %act and .roo* o* &atheatical .robabilitie!
Case law
Weyer! v. Khera (doctor! i!diagno!e $idney di!ea!e)
o 4acts: 5eymers becomes ill and sees several doctors that diagnose different things. Last test shows
severe anemia and idney disease is discovered.
o 6olding0reasoning: 6ave to show that it was more liely than not that witho!t .s cond!ct% /s in"!ries
wo!ld not have occ!rred. Fse lost opport!nity doctrine $antithesis of proCimate ca!se'. Allows / to
recover when .s negligence possibly $less than GIU' ca!sed /s in"!ries.
Alternative approaches:
/!re lost chance: show .s negligence decreased /s chance
/roportional approach: same% b!t damages limited to percent of chance lost
*!bstantial possibility: m!st show s!bstantial possibility that .s negligence ca!sed his
in"!ry
All allow to recover even tho!gh in"!ry liely witho!t negligence. E!dgment here for .s
beca!se no recognized ca!se of action for loss of opport!nity.
Daubert v. &errell Dow .haraceutical!( )nc (birth de*ect!)
o 4acts: (other too 3endectin which ca!sed birth defects. .o not now precisely how damage occ!rred.
)o scientist who has concl!ded that dr!gs ca!ses limb red!ction defects.
o 6olding0reasoning: V!estion of ca!sation. )o means of visible s!pport $dr!g ca!sed limb red!ction in
lab animals'. 7no!gh evidence to get / past s!mmary "!dgment.
7stablish criteria for when eCpert testimony is proper
1eflects scientific nowledge% method and good science
1elevance to matter at hand
$ro%i&ate "ause
o General
" (!st have both ca!se in fact A). proCimate ca!se.
" 7ven when / establishes ca!se in fact% co!rts will precl!de recovery when the ca!sal relationship between the .s
cond!ct and the /s in"!ry is too atten!ated% remote% or freaish to "!stify imposing responsibility on the .
o "he Direct #au!e "e!t
Case law
)n ,e +n +ribitration Between .olei! and %urne!!( Withy #o.( -td (drop plant( cau!e *ire)
o 4acts: #wners of a vessel $/s' chartered it to the defendants $.s'. 5hile !nloading cargo% .s servants
dropped a plan into the hold of the vessel. Apparently it ca!sed a spar that ignited petrol vapors. The
res!lting fire destroyed the vessel. Arbitrators fo!nd that the longshoremen who dropped the plan had
been negligent. Altho!gh the spar co!ld not have been anticipated% some damage co!ld have been.
o 6olding: ;es. The foreseeability of damages may be important in determining the eCistence of
negligence. 3!t once the negligence is established% the negligent party is liable for all damages directly
traceable to the negligent act% regardless of foreseeability. *ince no intervening force eCisted% the .s
servants actions were the direct ca!se of the eCplosion% and so .s are liable. . may be liable for
negligence that is an act!al and direct ca!se of /s in"!ry.
Fnder the minority view% . is s!b"ect to liability for any conse+!ences which are a direct res!lt of
his tortio!s cond!ct% whether or not those conse+!ences are foreseeable. 5hen there is no
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intervening force between the .s negligent act and the harm to the /% s!ch harm is said to be the
direct res!lt of the .s act and . is liable.
The plaintiff is not concerned with establishing the foreseeability of the conse+!ences% b!t m!st
instead prove the absence of any intervening forces.
o %ore!eeability a! a Duty -iitation
Case law
'elen .al!gra* v. "he -ong )!land ,ailroad #opany (*irewor$!)
o 4acts: /laintiff passenger waiting for train on platform after b!ying a ticet when another train came into
station. Two men were r!nning for train while it was in motion% one made the train and the other was
having a bit more diffic!lty getting on the train% appeared !nsteady% so the cond!ctor on the train as well
as another employee helped the passenger get on the train. 5hile being helped% the passenger dropped a
nondescript b!ndle he was carrying !nder his arm. Altho!gh !nnowing to anyone "!st looing at the
b!ndle% the b!ndle contained eCplosive firewors which eCploded when dropped. The eCplosion ca!sed a
large scale to fall onto the plaintiff ca!sing severe in"!ries $intense shoc' and hence her s!it for recovery
of damages.
o 6olding: )o% "!dgment reversed. /alsgraf got no money. . m!st be able to reasonably perceive a liely
in"!ry to the partic!lar person who got h!rt to have a d!ty. The / m!st show a wrong to herself% ie% a
violation of her own right% not merely a wrong to someone else or an !nsocial act. The p!rpose of the
g!ards act was to mae the passenger safe. If there was a wrong at all% it was to the safety of the
pacage. There was nothing in the sit!ation to s!ggest to the most ca!tio!s mind that the parcel wo!ld
spread wrecage thro!gh the station. )egligence itself is not a tort% it m!st be negligence in relation to
the plaintiff. *ince harm was not foreseeable% . did not have d!ty to prevent this harm to /. The ma"ority
position in /alsgraf re+!ires that plaintiffs be foreseeable. . has no d!ty of care to / !nless . can
reasonably foresee that .s cond!ct imposes a ris of harm that . fails to tae reasonable meas!res to
prevent.
4oreseability as d!ty limitation
. has no d!ty of care to / !nless . can reasonably foresee that .s cond!ct imposes a
ris of harm that . fails to tae reasonable meas!res to prevent. A/roof of negligence in
the air will not doB $theres a potential stopping part for negligence2 if yo! cant point to a
partic!lar person who was a foreseeable victim of negligence% yo! cant claim negligence
Dcant "!st assert anybody in"!red as someones cond!ct is the act of negligence'
o .issent $Andrews': where there is an !nreasonable act and some right that may be affected by it there is
negligence whether or not damage res!lts
The law arbitrarily declines to trace a series of events beyond a certain point
/roCimate ca!se m!st be a b!t-for ca!se
)at!ral and contin!o!s se+!ence
*!bstantial factor
.irect connection% witho!t too many intervening ca!ses
4oreseeable with pr!dent foresight
.!ty owed to world at large% if breached and harm occ!rs there is liability to all affected% even
those o!tside the zone of apparent danger.
Awhat we mean by the word AproCimate is that beca!se of convenience% p!blic policy or a ro!gh
sense of "!stice% the law arbitrarily declines to trace a series of events beyond a certain point. This
is not logic. It is practical politics.B
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o %ore!eeability and the ,i!$ ,ule
General
o The prevailing r!le of proCimate ca!se re+!ires that the plaintiffs in"!ry be a foreseeable conse+!ence
that the defendant sho!ld have reasonably anticipated.
7ven if the res!lt is foreseeable% the defendant is relieved from liability if there is a s&$ersedin,
intervening force. An intervening force is a new force which "oins with the defendants cond!ct
to ca!se the plaintiffs in"!ry.
1!le: . is liable for f!ll eCtent of harm ca!sed by negligence% even if f!ll eCtent of harm was
!nforeseeable and even if / had an AeggshellB s!ll.
Case law
Over!ea! "an$!hip (9.K.) -tdv. &ort! Doc$ & 0ngineering #o. ("he Wagon &ound) (Overturn! .olei!)
(oil in bay and caught on *ire)
o 4acts: / owned a wharf in *ydney% A!stralia. The 5agon (o!nd ship was moored JII feet away from
the wharf and taing on f!rnace oil. A large +!antity of f!rnace oil spilled into the bay and some of it
concentrated near wharf. / stopped all welding and b!rning !ntil he co!ld assess the danger% b!t then was
advised by the . that it was oay to res!me b!siness activities. 4or = days all was #8% b!t then molten
metal dripped from the welding "ob and set fire to cotton that was floating on the s!rface of the water% and
this in t!rn ignited the oil. The ens!ing fire damaged the wharf and two ships doced alongside.
o 6olding0reasoning: Act!al damage or res!lts m!st be foreseeable for . to be liable. It is not eno!gh that
"!st any damage or res!lts are foreseeable or follow in an !nbroen se+!ence. *ome limitation m!st be
imposed !pon the conse+!ence for which a negligent actor is to be held responsible. The damage ca!sed
is not reasonably foreseeable% th!s . sho!ld not be held liable. )egligence liability depends not on
directness of in"!ry $as /olemis concl!ded' b!t on its reasonable foreseeability.
o %ore!eeability and the 0:tent o* 'ar
General
o 7ggshell s!ll: for average person not a big deal% b!t is for this sensitive /
o ,eneral 1!le: . is liable for f!ll eCtent of harm ca!sed by her negligence% even if the f!ll eCtent of
potential harm was !nforeseeable and even if / had an eggshell s!ll.
Case law
Stole!on v. 9nited State! (nitroglycerin)
o 4acts: 5ors in plant when handling nitroglycerin that ca!ses arteries to eCpand.
o 6olding0reasoning: . may be liable% even in the presence of intervening h!man ca!ses A5here the acts
of a third person intervene between the defendants cond!ct and the plaintiffs in"!ry% the ca!sal
connection is not a!tomatically severed.B 7Ctraordinary% !nforeseen intervening acts may be s!perceding
and brea ca!sal neC!s.
o %ore!eeability and )ntervening #au!e
General
o )egligent act creates dangero!s sit!ation or places / in v!lnerable sit!ation. *ome other actor comes into
play and in"!res /.
o .etermine whether intervening force is so eCtraordinary or so independent of original negligent cond!ct
that . sho!ld be eCc!sed from liability.
o If it is so significant% it is called a s!perceding ca!se.
o . may be liable% even in the event of intervening h!man ca!ses.
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Case law
'eran v. &ar$ha +ir ,i*le #o (air ri*le)
o 4acts: . sells air rifle loaded with shot with which a retail c!stomer accidently shot retailers employee
in face.
o 6olding0reasoning: . is liable.
Derdiarian v. %eli: #ontracting #orp. (!eiAure( cra!h into boiling enael)
o 4acts: / in"!red when boiling enamel ignited him after man having seiz!re crashed his car into worsite.
5as seiz!re a s!perceding act:
o 6olding0reasoning: (!st show .s negligence was s!bstantial ca!se of events which prod!ced the in"!ry.
Liability t!rns on whether the intervening act is a normal or foreseeable conse+!ence. An intervening act
may not serve as a s!perseding ca!se% and relieve an actor of responsibility% where the ris of the
intervening act occ!rring is the very same ris which renders the actor negligent. 4or /.
&ar!hall v. 2ugent (!werving truc$)
o 4acts: (arshall was passenger in car% driver avoided collision with tr!c and sidded off the highway.
Tr!c driver s!ggest (arshall go to top of hill to warn other drivers and another car driven by )!gent
didnt see and hit (arshall. 5as the tr!c driver the proCimate ca!se or did he merely create a condition
for the in"!ry:
o 6olding0reasoning: Tr!c driver is liable. There was proCimate ca!se. . created the ris% which was
still present when in"!ry occ!rred.
&c-aughlin v. &ine Sa*ety +ppliance! #opany (heat bloc$!)
o 4acts: / child near-drowning victim% b!rned when resc!er !sed !nprotected heat blocs to warm her
body.
o 6olding0reasoning: 5arning on heat blocs was totally inade+!ate as a warning commens!rate with the
ris. If the fireman did so cond!ct himself witho!t warning the n!rse% his negligence was so gross as to
s!persede negligence of the . and ins!late it from liability. )ew trial.
Wat!on v. Kentuc$y & )ndiana Bridge & ,. #o. (ga! !pill( lit atch)
o 4acts: The . 11 tan car filed with gasoline and valve broe% ca!sing gas to fill into the street% filling
area with flammable li+!id and eCplosive vapor. 3ystander lit match for cigarette with ignited the
gasoline% ca!sing the / serio!s in"!ry.
o 6olding0r!le: It is foreseeable and probably tht the gas co!ld have come in contact with fire% !nless
bystander threw match malicio!sly% which is do!btf!l. AThe mere fact that the conc!rrent ca!se or
intervening act was !nforeseen will not relieve the defendant g!ilty of the primary negligence from
liability% b!t if the intervening agency is something so !neCpected or eCtraordinary as that he co!ld not or
o!ght not that anticipated it% he will not be liable% and certainly is not bo!nd to anticipate criminal acts of
others.B
Brauer v. 2ew Bor$ #entral & '.,.,. #o. (cra!h( !tole wagon good!)
o 4acts: ,rade crossing collision. As a res!lt of collision% death of horse and content of wagon scattered
and stolen by people at the scene of the accident. .oes / have right to recover damages from stolen
goods:
o 6olding0r!le: AThe act of a third person&will not eCc!se the first wrongdoer% if s!ch act o!ght to have
been foreseen.B Act of thieves did not inervene between .s negligence and /s loss. . is liable for
stolen goods.
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(ulti)le Tortfeasors
o @oint and Several -iability
Case law
#arolina( #. O. ,y. 8. 'ill (,, con!truction daage land)
o 4acts: .s commenced constr!ction of a 11 on opposite ban from / which res!lted in in"!ries to /s
land% h!rling rocs% dirt% st!mps% trees% etc. Also% ;ellow /oplar L!mber -ompany was removing l!mber
and floating it down river% contrib!ting to damage.
o 6olding0reasoning: If l!mber company ca!sed any part of the damage% it is manifest form evidence that it
wo!ld be impossible to separate effects and ascertain what part of the in"!ry was attrib!table to its
negligence. The doctrine is established that where there are several conc!rrent negligent ca!ses% the
effects of which are not separable% tho!gh d!e to independent a!thors% either of which is s!fficient to
prod!ce entire loss% all are "ointly or severally liable for entire loss. / had right to s!e . for all damages.
o "heorie! o* @oint -iability
Concert of ction
BiercAyn!$i v. ,oger! (drag race)
o 4acts: /articipants in illegal drag race on p!blic highway and in"!re bystanders.
o 6olding: 7ven tho!gh only one racing car technically involved in incident% all are held liable. 5hen
in"!ry is inflicted by one of several .s "ointly engaged in a co!rse of negligent cond!ct% each . is liable
even tho!gh only one of them act!ally inflicted the in"!ry.
Enter$rise Lia-ility
'all v. 0.). Du .ont De 2eour! & #o. (bla!ting cap!)
o 4acts: -hildren in"!red by blasting caps. /s claiming damages against siC man!fact!rers. 7ach
complaint common to all. 4ail!re to place warning on blasting caps. .s had nowledge that children
in"!red.
o 6olding0reasoning: 7ven tho!gh individ!al man!fact!ring of prod!ct% can be held liable as a gro!p for
parallel safety practices. Eoint control of ris eCists among actors not bo!nd in profit-sharing. Ind!stry-
wide standards. /s m!st show it is more probable than not that the camps involved in accidents were
prod!cts of named .s.
lternative Lia-ility
Suer! v. "ice (hunting)
o 4acts: 6!nting +!ail% .s shoot / in the face by accident. .s acted together% so both co!ld be held liable.
o 6olding0reasoning: 5here / cannot show whether .< or .=s negligence was the act!al ca!se of /s
in"!ries% the b!rden of going forward with the evidence shifts to the .s to show his negligence was not
the act!al ca!se. This is a way for / to prove ca!sation.
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!ar.et S/are Lia-ility
Sindell v. +bbott -aboratorie! (D0S)
o 4acts: / mother too dr!g .7* and developed cancer lined to .7*. .oesnt now which man!fact!rer
gave her the dr!g% so s!es all of them.
o 6olding0reasoning: Fnder -A% if .s in action represent a s!bstantial share of the maret for the prod!ct%
they will be liable for a percentage of the /s in!ries e+!al to their maret share. .s can eCc!lpate if they
can show they co!ld not have ca!sed in"!ries. Liability is several.
'ailton v. +ccu1"e$ (hand gun ar$et !hare liability)
o 4acts: ,ro!p of / s!e man!fact!rers of handg!ns for negligence. Thin man!fact!rers created an
!ndergro!nd maret.
o 6olding0reasoning: -o!rt !ses maret share liability. Fse factors $<' the s!perior ability of the .s to
bear the costs foreseeability associated with the man!fact!re and widespread distrib!tion of handg!ns2 $='
the fairness of re+!iring them to do so since they can red!ce the riss by their ability to choose
merchandising techni+!es2 $@' the deterrent potential of placing the b!rden on man!fact!rers careless of
their responsibilities to the p!blic2 and $K' the fact that in"!red plaintiffs did not choose their connection
with handg!ns.
o )ndenity and #ontribution
General
o #ne party agrees to reimb!rse another party for damage or loss s!ffered by the indemnified party
o -ontrib!tion: applicable only with respect to m!ltiple tortfeasors in a given tort litigation. Involves a
collective apportionment of the legal responsibility for paying a tort damage award among the vario!s
individ!al m!ltiple tortfeasors.
o Implied indemnity can be fo!nd as a Amatter of lawB where there is no agreement or contract.
Case law
2ational 'ealth -aboratorie!( )nc v. +hadi (paraly!i! with i!diagno!i!)
o 4acts: / s!ffered permanent paralysis as a res!lt of misdiagnosis of ailment. (isdiagnosed at medical
center% technicians messed !p test% doctor did not do!ble chec symptoms.
o 6olding0reasoning: Imposed GIU contrib!tion to "!dgment for each .. (edical center had independent
reason over time to do!bt laboratory res!lts% so sho!ld have gotten them again. Indemnity depends !pon
the relationship between the parties.
Bervoet! v. 'arde ,all! .ontiac1Old!( )nc (coparative *ault)
o 4acts: Lee Eacson% inebriated% wreced his car in which 3ervoets was a passenger. 3ervoets s!e
Eacson. Eacson and his parents file complaint against Adanac% who served beverages to the minor.
5ant contrib!tion action tried !nder Fniform -ontrib!tion Among Tortfeasors Act $F-ATA' instead of
comparative fa!lt.
o 6olding0reasoning: *ho!ld be tried according to principles of comparative fa!lt. !c*ntyre did not intend
to deprives litigants the right to p!rs!e claim of contrib!tion. Intend pro rata share of damages approach
of F-ATA% which provides the fa!lt of the parties is not to be considered in determining each partys
share of damages sho!ld not contin!e. Impermissible to retroactively apply !c*ntyre so to deprive of
right. *ho!ld be tried in accordance with principles of comparative fa!lt.
37
37
Da&ages for $ersonal In*uries
o 0conoic -o!!e! #au!ed by .hy!ical )n/ury
General
o Awards for medical eCpenses% p!nitive% pain and s!ffering% lost wages
o 1ecover cost of all f!t!re medical treatments
o Lost wages
-an be diffic!lt to determine
Case law
Se**ert v. -o! +ngele! "ran!it -ine! (caught in bu! and dragged)
o 4acts: / s!ffered in"!ry when being ca!ght in the door of a b!s and dragged. Loos to determine
appropriate damages.
o 6olding0reasoning: E!dgment affirmed on gro!nd that N<HL% >I@.LG not eCcessive pec!niary and pain and
s!ffering ward for woman serio!sly and permanently in"!red when ca!ght in b!s door and dragged.
o %uture Daage! and Di!counting to .re!ent 8alue
General
o *ho!ld awards for these val!es be red!ced to present val!e% otherwise over compensated
Case law
@one! & -aughlin Steel #orp. v. .*ei*er (di!counted to pre!ent value)
o 4acts: -ase bro!ght !nder worers comp.
o 6olding0reasoning: After factoring in the inflation rate $if any'% most co!rts re+!ire the award for f!t!re
economic losses to be disco!nted to its present val!e% i.e. the amo!nt of money that if now invested at
reasonable rates wo!ld defray the economic losses that the / is eCpected to s!stain.
Lost earnings calc!lation
*tep <: determine lost stream of income $after taC basis% life of employee% individ!alized
factors relevant% ass!me cost of living increases based on cons!mer price indeC $-/I''
*tep =: disco!nt step < s!m to present val!e% and !se same ass!mptions abo!t investment
and inflation !sed in step <
L!mp s!ms arg!ably !nder compensate d!e to inflation
L!mp s!ms arg!ably overcompensate d!e to investment opport!nity
Investment windfall: !nspent monies for f!t!re eCpenses co!ld be invested% leading to
s!bstantial profits in an open maret
o 2on10conoic -o!!e!: .ain and Su**ering
General
o 6edonic adaptations: people overtime ad"!st to the Anew normalB after eCperiencing in"!ries
Arg!es when / s!ffers an adaptable in"!ry% settlement is easier beca!se / will become less
distressed and accept a lower settlement offer beca!se she will believe less money is re+!ired to
mae her whole.
o /ec!niary damages $lost wages% medical eCpenses% cae-taing eCpenses'
o )onpec!niary $pain% s!ffering% inability to engage in certain activitiesDloss of consorti!m'
39
39
o ,oals of .amages
To compensate victim% not p!nish wrongdoer
1estore in"!red party to stat!s +!o ante
.eterrence
/!nitive damages: limited to intentional acts% malicio!s acts% o!trageo!s negligence
Case law
&cDougald v. Garber (alpractice *or #1!ection brain daage)
o 4acts: -aesarean section res!lted in permanent brain damage. #riginal malpractice damage award% / in
permanent coma. ,ets N>.>. V!estions nat!re and role of nonpec!niary damages in personal in"!ry
litigation $pain and s!ffering% pleas!res and p!rs!its of life'
o 6olding0reasoning: *ome degree of cognitive awareness is a prere+!isite to recovery for loss of
en"oyment of life. 3!t% a "!ry sho!ld not be instr!cted to consider and award damages for loss of
en"oyment of life separately from damages for pain and s!ffering.
o &itigation
General
o #nce in"!red% / m!st tae reasonable steps to mitigate their in"!ries.
Case law
#olton v. Bene! (did not undergo operation)
o 4acts: / in"!red bac in accident with .. / was advised to !ndergo an operation b!t did not beca!se he
co!ld not afford to.
o 6olding0reasoning: law does not re+!ire the in"!red person to !ndergo an operation where the hazards are
great. 3!rden of proving the / sho!ld s!bmit to an operation to lessen his damage is !pon the .. 5here
an !nreasonable eCpendit!re wo!ld be re+!ired to !ndergo treatment an in"!red person is "!stified in
ref!sing to !ndergo it.
o -o!! o* #on!ortiu
General
o The benefits that one party is entitled to receive from another.
o #ollateral Bene*it!
General:
o )!mero!s types of ins!ranceDdoes this change the amo!nt of damages awarded:
o .oes collateral so!rce r!le lead to !nfair do!ble recovery:
Case law
'el*end v. Southern #ali*ornia ,apid "ran!it Di!trict (collateral !ource rule)
o Holding/rule: After bus-car collision, determining whether collateral source rule applies to tort actions involving
public entities and public employees in which the P has received benefits from his medical insurance coverage.
Question of double recovery. The Ps recovery for his medical expenses from tortfeasor and medical
insurance program will not usually give him double recovery, but closer approximation to injuries.
Reaffirm adherence to collateral source rule.
3;
3;
o .unitive Daage!
General
o /!nishment damages
o *ome arg!e that if p!nishment is too great% it may be arbitrary% may violate d!e process% and may violate
constit!tions
Case law
Stur( ,uger & #o.( )nc. v. Day (car accident)
o 4acts: *t!rm man!fact!red g!n. ,!n slipped o!t of /s hand while / was attempting to !nload it% fired%
in"!ring / in leg. / bro!ght prod!cts liability action against *t!rm.
o 6olding0reasoning: .etermines there are design and man!fact!rer defects. /!nitive damages can serve
several !sef!l f!nctions in the prod!cts liability area. *!pports the imposition of p!nitive damages.
State %ar &utual +utoobile )n!uranc #o. v. #apbell (car accident( punitive daage! uncon!titutional)
o 4acts: -ampbell ca!sed accident% b!t *tate 4arm contested liability.
o 6olding0reasoning: An award of N<KG million in p!nitive damages% when f!ll compensatory damages are
N< million% is eCcessive and in violation of the .!e /rocess -la!se. It was an irrational% arbitrary% and
!nconstit!tional deprivation of the property of the ins!rer. The -o!rt reasoned that evidence of dissimilar
o!t-of-state miscond!ct was an improper basis for p!nishing the ins!rer for the limited harm and noted%
Qfew awards eCceeding a single-digit ratio between p!nitive and compensatory damages% to a significant
degree% will satisfy d!e process.Q
Li&ited Duty, -)eial Li&itations on t.e -o)e of Duty
o General
o (isfeasance: affirmative miscond!ct between parties
.efendant breached d!ty and is liable for negligence
)egligent omissions $as well as negligent acts' are a type of misfeasance. )egligent omissions
are different from nonfeasance beca!se the defendants omission $say% failing to pay attention
while driving' is ca!sing the harm% whereas in nonfeasance% the defendant is not responsible for
the harm.
o )onfeasance: defendant has done nothing wrong !nder the circ!mstances where the law imposes an
affirmative d!ty to act in a certain manner
o -ommon law r!le: no affirmative d!ty to assist others $?@<K% @<G'
1espect for personal freedom and a!tonomy
1e"ection of A-hristianB ,ood *amaritan moral ideal as a legal ideal
-riti+!e: callo!s disregard for h!man welfare
o 7Cception:
3!siness invitee r!le: land a premise owners and possessors have an affirmative d!ty to maintain
premises in a reasonable safe condition and to warn b!siness invitees of dangero!s conditions and
to assist them if in"!red d!e to !nsafe conditions
Case law
Bania v. Bigan (/up in water and drown)
o 4acts: 3igan is woring and ;ania comes on land for b!siness. They are ased to p!mp water. ;ania
"!mps in water and drowns% possibly beca!se 3igan teased him.
3@
3@
o 6olding0r!le: . ca!sed acts by enticing / to "!mp and new it was dangero!s. .id not warn or resc!e
;ania. 6owever% . has no legal responsibility to resc!e !nless legally responsible for p!tting / int hat
sit!ation% which he wasnt. . has no d!ty to mae safe or warn and resc!e /. )o affirmative d!ty to
resc!e people $1=d ?@<K% @<G'
If need for resc!e arises beca!se of the .s negligence% . has a d!ty to mae a reasonable effort
to resc!e.
o &i!*e!ance v!. 2on*ea!ance
Case law
Weiru v. ,KO General( )nc. (radio conte!t racing)
o 4acts: -ar accident to win radio concert. A radio station has been held liable for the death of a motorist
whose car was forced off the road by a teenager racing to win a radio contest by being the first to locate a
Atraveling disc "ocey.B
o 1!le: A defendant has a d!ty not to create an !nreasonable ris of harm from third parties.
o 0:ception to the C2o1DutyD ,ule
01s 2e,li,ence Places t/e Plaintiff in a Position of Peril
Day v. Wa**le 'ou!e( )nc (gla!! in *ood)
o 4acts: / and friend eating at resta!rant. 4riend finds glass in food. #n way to hospital% / crashes. *!es
5affle 6o!se for negligence.
o 1!le: (!st establish eCistence of d!ty% breach% and damages. Fsing the Aresc!e doctrineB negligence to
the victim constit!tes negligence as to the resc!er% and there eCists an independent d!ty of care as
between the negligent party and the resc!er. An in"!red party may recover damages for in"!ry s!stained
in a resc!e or attempt from the original tortfeasor if it cam be down that it was the original tortfeasors
negligence that placed the resc!ed person in peril% and resc!ed person s!ffered in"!ry thro!gh attempt.
o 8oluntarily +!!ued Dutie!
%lorence v. Goldberg (cro!! wal$Echild hit)
o 4acts: 5hether a m!nicipality may be held liable for in"!ries s!ffered by an infant str!c by an
a!tomobile while attempting to negotiate a school crossing when police department has vol!ntarily
ass!med d!ty to s!pervise crossings and there was no station g!ard present.
o 6olding0r!le: -annot be held liable in damages for its fail!re to f!rnish ade+!ate protection. There m!st
be more than a d!ty owing to the general p!blic in order to be held liable. If there is a special relationship
then the m!nicipality co!ld be held liable for damages s!ffered as a conse+!ence of its negligence.
/eople relied !pon citys contin!ed performance. -annot be held liable solely for its fail!re to provide
ade+!ate p!blic services.
o Special ,elation!hip
General:
o There is no d!ty so to control the cond!ct of a third person as to prevent him from ca!sing physical harm
to another !nless
A special relationship eCists between the actor and the third person which imposes a d!ty !pon
the actor to control the third persons cond!ct or
A special relationship eCists between the actor and the other which gives to the other a right to
protection
3A
3A
o 7Camples: common-carrier-passenger% b!siness invitor-invitee% c!stodial relationships% landlord-tenant $1
=d ?@<KA'
Case law
%arwell v. Keaton (beat up *riend)
o 4acts: . and /s son drining beer near a drive-in resta!rant. They followed two girls% who complained
to some friends. *iC boys chased . and /s son. . escaped !nharmed% b!t /s son was severly beaten. .
drove /s son aro!nd for several ho!rs and then drove him home. . left /s son in bac seat of car% and
he was not discovered !ntil the neCt day. /s son died three days later. / s!ed . for wrongf!l death%
claiming that . had a d!ty to render aid to his son.
o 6olding01!le: If a . vol!ntarily !ndertaes to warn or resc!e% the defendant owes a d!ty to do so with
reasonable care. -onsider s!ch a d!ty to be an affirmative d!ty to resc!e% it seems better characterized as
part of the .s d!ty of reasonable care arising from the .s cond!ct. . owes a d!ty to go to the aid of
another in an emergency where some special relationship eCists.
. and /s son were companions on a social vent!re. 3eca!se of this common vent!re% a special
relationship arose between them. 5hen . new or sho!ld have nown of /s sons peril% he had
a d!ty to render aid.
Also% . too control of the sit!ation by beginning to administer care the /s son% th!s he
established a responsibility to tae care of this person and sho!ld have f!lfilled this responsibility
reasonably.
*o% . owed /s son a d!ty both d!e to special relationship and he !ndertoo to act
"ara!o** v. ,egent! o* 9niver!ity o* #ali*ornia (p!ychiatri!t $now! o* plan! to urder)
o 4acts: The Tarasoffs $/s' are the parents of a girl who was m!rdered by a patient of a psychologist
employed by the Fniversity of -alifornia $.'. /s alleged that the m!rderer confided his intent to ill their
da!ghter to the psychologist two months before the illing% and that altho!gh the iller was briefly
detained% no f!rther action was taen to restrain him or to warn /s or their da!ghter. / appeals to amend
ca!se of action to state the . was negligent in not informing others of Tatianas predicted actions.
o 6olding01!le: If he . has some special relationship with the person who does the harm% co!rts may !se
that to recognize an affirmative d!ty to !se d!e care to avoid the harm. .octor owes d!ty to !se
reasonable care on behalf of intended victim. 5hen prevention of a foreseeable harm re+!ires a
defendant to control the cond!ct of another person or to warn of s!ch cond!ct% the common law imposes
liability only if the . bears some special relationship to the dangero!s person #1 to the potential victim
. and m!rderer had a special relationship and this m!st be eCtended to the third party to warn
them of danger
. did predict what m!rderer wo!ld do% and he was negligent in failing to warn2 the benefit to
society of warning of danger is greater than harm from false alarms
-onfidential nat!re of relationship b0t patient and medical provider m!st yield when disclos!re is
essential to avert danger. The protective privilege ends where the p!blic peril begins.
$re&ises Liability, Duties of Owners and Ou)iers of Land
o Special #ategorie! o* 0ntrant!
Tres$assin, C/ildren
General
o ,enerally been treated less harshly than other types of trespassers
o AT!rntable doctrine%B Athe playgro!nd theory%B Aattractive n!isanceB
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39
o A d!ty of reasonable care may still be imposed !pon a landowner who has reason to anticipate the
presence of trespassing yo!ng children on the premises and the danger created by some dangero!s
condition
&oAier v. .ar!on! (little girl drown in pool)
o 4acts: Little girl drowns in neighbors pool after being invited over. There was no fence. /arents s!ed
family for wrongf!l death and s!rvival action.
o 6olding01!le: A possessor of land is s!b"ect to liability for bodily harm to children intr!ding if $<'
possessor nows or sho!ld now that yo!ng children are liely to trespass !pon premises $=' possessor
nows there eCists an !nreasonable ris of bodily harm to yo!ng children $@' children beca!se of yo!th
do not discover condition in dangero!s area $K' one !sing ordinary care wo!ld not have maintained the
condition when taing into consideration the !sef!lness of the condition and whether or not eCpense or
inconvenience to the defendant in remedying the condition wo!ld be slight in comparison to the ris of
harm to children. A swimming pool% in this case% does not constit!te an attractive n!isance.
3irefi,/ters4 Police (fficers4 and (t/er P&-lic (fficials: T/e 53irefi,/ter1s R&le6
General
o ,enerally denied invitee stat!s by many "!risdictions and !s!ally treated as AlicenseesB
o *pecially trained in dangero!s sit!ations as part of their occ!pations
o Typically bars recovery by an in"!red firefighter or police officer for those in"!ries which have been
ca!sed by the same cond!ct or activity that was responsible for the entrants original presence at the scene
o 1=d ?@KG
#hapan v. #raig (police o**icer)
o 4acts: /olice officer -hapman tries to arrest 3!rhead and is in"!red in the process. 3ro!ght action
against tavern owner.
o 6olding01!le: 1ecovery is denied for the firefighter or policeman only when the ca!se of action is based
on the same cond!ct that initially created the need for the officers presence in an official capacity.
4iremans r!le is amply s!pported by so!nd reasoning.
Social G&ests
General
o 7ven tho!gh social g!ests have been invited to enter premises% most co!rts treat them as licensees% a
red!ced d!ty of care.
o Invitee
-onsens!al g!est with a b!siness p!rpose2 d!ty to eep safe and to warn of hidden defects and
dangers.
4or invitees% land possessors m!st !se reasonable care in maintaining the premises and in their
activities. Land possessors owe a d!ty of reasonable care to protect invitees against both nown
dangers and those that wo!ld be revealed !pon inspection. If the land possessor nows or sho!ld
now of a danger on the property% she m!st either remedy it or warn the land entrant of its
eCistence where the ris is not nown or obvio!s. A warning may be inade+!ate if the land
occ!pier can eliminate the danger with ease% partic!larly if the ris posed is great
o Licensee
-onsens!al g!est witho!t b!siness p!rpose2 d!ty to refrain from willf!l or wanton negligence and
to warn of nown dangers.
A licensee is someone who enters the land with the eCpress or implied consent of the land
possessor% as is the case with social g!ests or those visiting for their own personal b!siness $s!ch
as a door-to-door salesperson prior to the land occ!pier agreeing to transact b!siness'
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70
'abright v. %ir!t Bapti!t #hruch10a!twood (!lipped and *ell in church)
o 4acts: 6ambright in"!red when slipped and fell while attending services at 4irst 3aptist -h!rch-
7astwood. The iss!e is whether 6ambright held legal stat!s of a licensee. *he had been ased to
participate in services on oily floor.
o 6olding0r!le: A person who enters the land with the landowners consent to bestow some material or
commercial benefit !pon the landowner is deemed an invitee. A landowner owes an invitee the d!ty to
eep the premises in a reasonably safe condition and% if !nsafe% to warn of hidden defects and dangers that
are nown to the landowner b!t that are hidden or !nnown to the invitee. 6old 6ambright is a licensee%
b!t did not show evidence that ch!rch was conscio!s of condition of floor or acted negligently.
Recreational Premises
General
o /ersons in"!red after having been grat!ito!sly permitted to enter land for recreational p!rposes.
o Treat recreational entrants as licensees% not invitees
,eed v. 0ployer! &utual #a!ualty #o (hunting club( tree !tand)
o 4acts: 1eed climbed into movable tree stand at h!nting cl!b. *tand collapsed and ca!sed in"!ry.
o 6olding0r!le: A landowner may be held liable for in"!ries% which occ!rred on his property when in the
management of his property he acted !nreasonably in view of the probability of in"!ries to others. 5hen
s!itable tract is properly dedicated to one or more of the specified recreational p!rposes% landowner
eCpos!re to liability is limited. In these cases% the owner owes no d!ty of care to eep the premises safe
or to give warnings of hazards% !se% str!ct!re or activity on the premises $1ecreational Fse *tat!te'.
#wner of h!nting cl!b does not have right to mae land available for p!blic !se.
Criminal ssailants
General:
o -ommon law decline to impose liability for negligence against owners of property for in"!ries inflicted
!pon entrants by the criminal actions of !nnown third parties.
o Intentional miscond!ct of the assailant constit!ted an independent ca!se that s!perceded any s!ch
negligence by the defendant.
&c#lung v. Delta SFuare -td. .artner!hip (Wal1&art attac$)
o 4acts: .orothy (c-l!ng shopping at 5al-(art% attaced% idnapped% raped% s!ffocated in tr!n.
6!sband arg!es 5al-(art and .elta *+!are negligent in failing to provide sec!rity meas!res for the
paring lot and that their negligence was the proCimate ca!se of death. .o commercial landowners have
d!ty to c!stomers to protect in paring lot:
o 6olding01!le: )o d!ty to protect !nless b!siness nows or has reason to now criminal acts are
occ!rring or abo!t to occ!r on premises which pose an imminent probability of harm to a c!stomer.
/rior incidents r!le: tae reasonable meas!res to protect c!stomers from foreseeable criminal
attacs
3alancing test: economic concerns of b!sinesses and the safety concerns of c!stomers who are
harmed d!e to the negligence of one seeing their b!siness
-olition"!odification of Common Law 5Stat&s6 Cate,ories
,owland v. #hri!tian (land occupier3! duty)
o 1!le: A land occ!piers d!ty does not depend entirely on the entrants stat!s. Test is whether the
occ!pier has acted as a reasonable person in the management of her property in view of the lielihood of
in"!ry to others $i.e. the general d!ty of d!e care !nder the circ!mstances'
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71
0rongful Deat.
o General
" *!rvival: preserves for decedents estate a co!rse of action with damages !p to moment of death
o These stat!tes provide that some ca!ses of action in tort are not eCting!ished by the death of the / or .% b!t instead
may be p!rs!ed by or against the parties estates
7Cample: / d!es . for malpractice. / dies of cancer before case goes to trial or is settled. /s estate may
contin!e /s malpractice s!it against ..
/ s!es . for malpractice. . dies of cancer. / may contin!e.
/ co!ld have s!e . before /s death% b!t / died before s!it bro!gh. /s estate can bring s!it againd
. within stat!te of limitations.
/ s!es . for defamation and invasion of property. / dies of cancer before case goes to trial. /s
s!it may not s!rvive !nder stats restricted s!rvival stat!te.
Iss!e: whether a spo!se0children can recover for h!sbands0fathers pain and s!ffereing and wages loss $and
clothing damaged' d!ring > day period he s!rvive in"!ry that led to death. $!&r$/y'
" 5rongf!l death: victims s!rvivors entitled to monetary damages
o These stat!es provide that the family of a person illed as a res!lt of a tort may have a ca!se of action
against the tortfeasor.
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7Cample: /s spo!se 5 illed d!e to .s negligence. / may s!e ..
7Cample: 5s children and parents can also s!e ..
7Cample: 5s dependent minor sibling might also be able to s!e . in some "!risdictions.
Iss!e: may parents recover for wrongf!l death of viable still-born fet!s: $#,rady'
Iss!e: may parents recover for loss of society of a wrongf!lly illed children: $3!llard'
o #a!e law
&oragne v. State! &arine -ine!( )nc
o 1!le: ;o! can get recovery for wrongf!l death.
O3Grady v. Brown (*etu! wrong*ul death)
o 4acts: )ine months pregnant% lost fet!s d!e to negligent doctor care. *!e for compensation for loss of
companionship% comfort% instr!ction% g!idance% co!nsel% and s!pport.
o 6olding01!le: The death of a fet!s can establish a remedy. 5rongf!l death stat!te evidences a legislative intent to
place the cost of A!nsafeB activities !pon the actors who engage in them. ?G@L.IHI does provide a ca!se of action
for wrongf!l death of a viable fet!s.
&urphy v. &artin Oil #o. (wrong*ul death o* hu!band)
o 4acts: 5ife of decedent filed complaint against . seeing damages for conscio!s pain and s!ffering% lost wages and
property damage. Appeal considers whether / can recover for lost wages that h!sband wo!ld have earned between
in"!ry and death% whether / can recover from lost personally property% whether / can recover for conscio!s pain and
s!ffering.
o 6olding01!le: There can be recovery for s!rvival stat!tes. To give recovery "!st for wrongf!l death wo!ld be an
inade+!ate "!stice.
Bullard v. Barne! (wrong*ul death o* child)
o 4acts: / are parents of deceased son who see recovery !nder 5rongf!l .eath and *!rvival Act for f!neral
eCpenses. 3ro!ght p!nitive and compensatory damages. -ar accident where decedent swerved off of the road to
avoid hitting a tr!c which had moved into the opposite lane to get aro!nd another car% despite fog and poor
visibility.
o 6olding01!le: There can be no pres!mption of loss of earnings !pon the death of a child since s!ch a pres!mption
represents an aberration from% rather than a reflection of% the typical family eCperience. /arents are entitled to a
pres!mption of pec!niary in"!ry in the loss of a childs society. The loss of child is disting!ishable from other forms
of loss. 5hile parents sho!ld get pec!niary damages for loss of the childs society% pro"ected child-rearing eCpenses
sho!ld be ded!cted from this amo!nt.
Defenses to Negligene
o De*en!e! Ba!ed on the .lainti**3! #onduct
Contri-&tory 2e,li,ence
o .efinition: -ontrib!tory negligence is the plaintiffs fail!re to !se d!e care for his or her own safety% which is an
act!al proCimate ca!se of the plaintiffs in"!ries.
o -hild are not contrib!torily negligent or are held at a lower standard
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Butter*ield v. %orre!ter (.ole in road while riding hor!e)
o 4acts: /ole obstr!cting the highway. / riding horse too fast and tripped. Also appeared to be intoCicated.
o 6olding0r!le: #ne person being at fa!lt does not dispense with anothers !sing ordinary care for himself.
-ommonly cited for contrib!tory negligence.
Com$arative 2e,li,ence
o .efinition: Arg!ment against contrib!tory negligence and its Aall or nothingB response. Arg!es that if the plaintiffs
fa!lt made it !n"!stified to throw the entire loss on the defendant% so the defendants fa!lt made it !n"!stified to
leave entire loss with plaintiff. (itigates contrib!tory negligence% while still penalizing plaintiffs lac of care. /!re
comparative fa!lt approach. . liable for / if / was less than <IIU at fa!lt.
7Camples:
If / JIU% . KIU% / recover KIU of damages from ..
If / GIU% .< =GU% .= =GU% / may recover GIU of his damages.
o (odified -omparative )egligence: Fnder the modified system% plaintiffs are allowed a partial recovery% !ntil the
plaintiff reaches a certain level of c!lpability for her own accident. #nce the plaintiff reaches this level of
c!lpability% the plaintiff is completely barred from any recovery.
Bradley v. +ppalachian .ower #opany
o 4acts: Two cases consolidated on appeal. 3oth +!estioning !se of comparative negligence to avoid the defense of
contrib!tory negligence.
o 6olding0r!le: Fse greater fa!lt bar approach. . is liable to / so long as the /s fa!lt does not e+!al or eCceed the
combined negligence of the other parties.
/ is =GU at fa!lt% . is LGU% / may recover LGU of damages
/ is JIU at fa!lt% . is KIU% / is barred from recovery
/ GIU% .< =GU% .= =GU% / is barred from recovery
Stehli$ v. ,hoad! (+"8( helet)
o 4acts: 1hoads p!rchased AT9 and signed a warranty abo!t dangers% warning% etc. / rode .s AT9 with consent
witho!t helmet and s!stained head in"!ries.
o 6olding0r!le: Fse helmet% or Aseat beltB defense. If / fails to !se a safety device commonly nown to protect
against in"!ry% then despite .s negligence / is not entitled to recover against . for /s percentage of the safety
device neglect-specific fa!lt% as determined by the "!ry0trier of fact.
ss&m$tion of t/e Ris.)E7$ress
o .efinition: A party may agree by contract to bear ris. / overtly agreed. Is this a complete bar to recovery to
s!rvive comparative fa!lt:
Wol* v. %ord (oney inve!tent)
o 4acts: Teenagers goes to invest her money with 4ord. 5olf sent a letter to sign abo!t investments which contained
and eCc!lpate cla!se regarding losses from investments. 5olf then began to withdraw large s!ms of money. Then
5olf became fr!strated with 4ord regarding the performance of her stocs. 4ord noted that the eCc!lpatory cla!se
eCcl!ded him from damages.
o 6olding0r!le: 5hile 5olf thins cla!se is void against p!blic policy% it is not. -la!ses generally valid and p!blic
policy of freedom of contract is best served by enforcing provisions. -annot !se eCc!lpatory cla!ses for intentional
harms% when one party is at an obvio!s disadvantage% in transactions affecting p!blic interest. Fse totality of
circ!mstances test to determine this.
T!nl v. 1egents test of p!blic interest for eCc!lpatory cla!ses
*eller in a b!siness s!itable for p!blic reg!lation
(atter of practical necessity for p!blic
*eller opens services to p!blic
*eller invoing eCc!lpation has s!perior bargaining power
*eller presents standard adhesion contract to p!rchaser and no other options
/roperty or person placed !nder control of the seller
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ss&m$tion of Ris.)*m$lied
o .efinition: Involves sit!ations where the plaintiff has vol!ntarily enco!ntered a nown ris. It co!ld be inferred
from /s action that / agreed to be the ins!rer of his own safety.
&urphy v. Steeplecha!e +u!eent #o.( )nc (*lopper)
o 4acts: After seeing others on ride fall% (!rphy still falls and in"!res himself. . arg!es the ris was foreseen% /
arg!es the belt was dangero!s and not properly e+!ipped to prevent in"!ries. Is this a ride with !nforeseeable ris:
5as the employee acting in scope of responsibility:
o 6olding0r!le: This wo!ld be a different case if dangers were obsc!re or !nobserved% b!t this was foreseeable.
Am!sement par is not liable.
Davenport v. #otton 'ope .lantation 'oriAontal .roperty ,egie (!tairca!e)
o 4acts: / in"!red while descending staircase. There were three stairwells% one of which had a broen light that he
had told the landlord abo!t% b!t yet still !sed stairs. Trial co!rt says / had ass!med the ris.
o 6olding0r!le: .isc!ssed whether ass!mption of ris acts as complete bar to recovery where state adopt modified
comparative negligence system. Fnless degree of fa!lt arising therefrom is greater than the defendants negligence%
recovery is not completely barred. 4o!r re+!irements for an ass!mption of the ris defense:
The plaintiff m!st have nowledge of the facts constit!ting a dangero!s condition
The plaintiff m!st now the condition is dangero!s
The plaintiff m!st appreciate the nat!re and eCtent of the danger
The plaintiff m!st vol!ntarily eCpose himself to the danger
1iarious Liability
o General
" -ases where the act!al tortfeasor and other parties are liable for the tort
" Fs!ally occ!rs with a special relationship between the tortfeasor and the party held legally responsible
" Liability is imp!ted for reasons of policy or practicality% b!t not fa!lt or wrongdoing
" -ontrib!tory liability: when . provides assistance to the tortfeasor in committing the tort
o In this case the person has committed an act that co!ld be considered wrongf!l
o ,e!pondeat Superior
General
o Alet the s!perior respondB by paying damages
o 9icario!s liability for employers for torts committed by their employees in the scope of their employment
o Is person an employee: Are they acting within scope of employment:
Case law
%ruit v. Shreiner (eployer liability *or eployee)
o 4acts: 4r!it ins!rance salesman re+!ired to attend convention. 5hile at convention% car sidded and
str!c disabled vehicle% *hreiners legs cr!shed. 5hether company re+!iring salesman to attend is liable
!nder respondeat s!perior.
o 6olding0r!le: -ompany arg!es that evidence ins!fficient to establish that 4r!it was acting within the
co!rse and scope of his employment. /art of the reason for employer liability is that damages are taen
from a deep pocet. The acts of the employee need to be so connected to his employment as to "!stify
re+!iring that the employer bear that loss. 7mployees acts s!fficiently connected with the enterprise are
in effect considered deeds of the enterprise itself. 4r!it was acting within his employment.
Wong1-eong v. 'awaiian )ndependent ,e*inery( )nc (copany partie!)
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o 4acts: 7mployee of 6awaiian crashed into car which illed passengers. .river was fo!nd to have
alcohol and mari"!ana in his system. 1et!rning home after drining beer at company party.
-ons!mption of beer at employment was eCtensive. -ompany managers new abo!t parties and said
they tolerated% b!t did not enco!rage it.
o 6olding0r!le: To recover !nder 1*% / m!st establish that $<' negligent act of employee that is legal ca!se
of /s in"!ry and $=' negligent act was within the employees scope of employment. A plaintiff need not
show any act or fa!lt of the employer when defining the allegedly negligent act in a respondeat s!perior
claim. The employees negligent act tho!gh m!st have been within the scope of the employment. 6I1I
co!ld be held liable% sent bac to lower co!rt. V!estions: whether employee acted negligently by
drining while aware that he had to drive% whether act of drining was within scope of employment.
o 0ployer10ployee ,elation!hip: Who i! an C0ployeeDG
Case law
Buitrago v. ,ohr (balloon adverti!eent)
o 4acts: . hired to p!t !p balloon for advertisement. After taing down a balloon% he drove bac to his
motel and got in a car accident.
o 6olding0r!le: In r!ling for employer% !se ?==I of 1=d for determining whether a party is an independent
contractor or an employee:
The eCtent of control which% by the agreement% the master may eCercise over the details of the
wor
5hether or not the one employed is engaged in a distinct occ!pation or b!siness
The ind of occ!pation with reference to whether wor is !s!ally done !nder direction of
employer or by specialist witho!t s!pervision
*ill re+!ired
5hether employer or worman s!pplies instr!mentalities% tools% place of wor
Length of time of employment
(ethod of payment
5hether wor is part of reg!lar b!siness of employer
5hether or not parties believe they are creating the relation of master0servant
5hether principal is or is not in b!siness
0rert v. 'art*ord )n!urance #o. (!hot in *oot)
o 4acts: / accidentally shot in foot by c!stomer of ins!rance agency while a g!est at a h!nting camp. )o
formal constit!tion% "!st general g!idelines.
o 6olding0r!le: .ecarea!C was negligent and there is vicario!s liability. (asters and employees are
answerable for the damage ca!sed by their servants. Loo to whether tort!o!s act was reasonably
foreseeable. *pecific cond!ct may be considered within the scope of employment even tho!gh it is done
in part to serve the p!rposes of the servant or of a third person. The scope of riss attrib!table to an
employer increases within the amo!nt of a!thority and freedom of action granted to the servant in
performing his assigned tass. 4oc!s on employees general activities at time of the accident% rather than
specific tort!o!s act% and the fact that an act is forbidden or is done in a forbidden manner does not
remove that act from the scope of employment. .ecarea!C was acting within scope of employment.
o 0ployer10ployee ,elation!hip: Wa! the 0ployee +cting within the CScope o* 0ployentDG
Case law
#ourtle!! v. @olli**e (errand on the way to wor$)
o 4acts: -o!rtless riding bicycle and str!c by .. / rendered permanently disabled. . was on his way to
wor% b!t had stopped to do an errand.
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o 6olding0r!le: Fse Agoing and coming r!leB of transportation to and from wor. Is this errand within the
scope: -o!rt finds iss!e of material fact and sends bac to lower co!rt. In"!ries inc!rred thro!gh the
ordinary !se of the streets and highways while going or coming to wor are not considered within the
scope of employment !nless s!ch !se is re+!ired of the employee in the performance of his d!ties for the
employer.
o 0ployer10ployee ,elation!hip: %rolic! and Detour!
General
o *ho!ld an employer be held liable for an employee who has managed to depart from the scope of his
employment% even temporarily% while in p!rs!it of some personal goal not related to employment itself:
Case law
%aragher v. #ity o* Boca ,aton (!e:ually ho!tile ato!phere)
o 4acts: / arg!ed seC!ally hostile atmosphere while woring as a lifeg!ard. .oes discrimination constit!te
employer liability:
o 6olding0r!le: The city did have nowledge or constr!ctive nowledge of the discrimination. Fnder ?=<>
of 1 =d% Aan employer may be indirectly liable for hostile environment seC!al harassment by a s!perior:
$<' if he harassment occ!rs within the scope of the s!periors employment2 $=' if the employer assigns
performance of a nondelegable d!ty to a s!pervisor and an employee is in"!red beca!se of the
s!pervisors fail!re to carry o!t that d!ty2 or $@' if there is an agency relationship which aids in the
s!pervisors ability or opport!nity to harass his s!bordinate.B .etermined cond!ct s!fficiently serio!s to
alter conditions of employment with hostile woring environment and employer is liable. There are good
reasons for vicario!s liability for mis!se of s!pervisory a!thority.
-trit Liability
o +nial!
General
o Animal owners are responsible for the harm ca!sed by their animals
o 5ild animals
.efined as those not Aby c!stom devoted to the service of manind at the time and in the place in which
they are eptB $1=d ??GIJ-GIL'
*trict liability applied in all cases where the harm res!lted from an action of the animal
5ild animals are inherently dangero!s and owners of them inherently place others at ris
o .omestic animals
.efined as Aan animal that is by c!stom devoted to the service of manind at the time and in the place in
which it is eptB $1=d ??GIJ% GI>'
*trict liability only where the owner nows or has reason to now that the animal has dangero!s
propensities abnormal to its class.
Case law
Sinclair v. O$ata (dog bite boy)
o 4acts: a ,erman shepherd% Anchor% bit a two-year-old boy while the teenage owner was sleeping in the car. Anchor
had bitten fo!r other people in the past% b!t .s arg!e that he was "!st acting as any normal dog wo!ld% so his
propensities are not abnormal. .s say they res!lted from overstim!lation% and protective and chase instincts. /s
move for partial *E.
o 6olding0r!le: )o *E beca!se% while Anchor is clearly dangero!s% its not clear that .s new that he was a-normally
dangero!s. .og was acting within his nat!ral instincts.
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o +bnorally Dangerou! +ctivitie!
General
o *trict liability ca!ses people to be eCtra caref!l abo!t how they handle hazardo!s things% and it co!ld red!ce the
amo!nt of dangero!s activity in the comm!nity beca!se people dont want to be liable if something goes wrong. It
also enco!rages people to get ins!rance.
o 1estatement =d ? G<>
#ne who carries on an abnormally dangero!s activity is s!b"ect to liability for harm to the person% land or
chattels of another res!lting from the activity% altho!gh he has eCercised the !tmost care to prevent s!ch
harm
This strict liability is limited to the ind of harm% the possibility of which maes the activity abnormally
dangero!s.
o ? G=I
In determining whether an activity is abnormally dangero!s% the following factors are to be considered:
7Cistence of a high degree of ris of some harm to the person% land or chattels of others2
Lielihood that the harm that res!lts from it will be great2
Inability to eliminate the ris by the eCercise of reasonable care2
7Ctent to which the activity is not a matter of common !sage2
Inappropriateness of the activity to the place where it is carried on2 and
7Ctent to which its val!e to the comm!nity is o!tweighed by its dangero!s attrib!tes
Case law
%lecter v. ,yland!H ,yland! v. %letcher (re!ervoir)
o 4acts: 4letcher was a coal miner% and d!g lots of mines. 1ylands b!ilt a reservoir above the mines% b!t he didnt
now the mines were there% and neither did the engineers. They filled the reservoir with water% and the mineshafts
below gave way% forcing 4letcher to sh!t down his mining operations.
o 6olding0r!le: 1ylands bro!ght the n!isance% and letting the water escape% hes liable.
A5e thin that the tr!e r!le of law is% that the person who% for his own p!rposes% brings on his land and
collects and eeps there anything liely to do mischief if it escapes% m!st eep it in at his peril% and if he
does not do so% is prima facie answerable for all the damage which is the nat!ral conse+!ence of its
escape.B
-o!ee v. Buchanan (!tea boiler e:plo!ion)
o 4acts: Action bro!ght to recover damages occasioned by the eCplosion of a steam boiler% while the same was owned
and being !sed by the *aratoga /aper -o.% at their mill% sit!ated in the village of *ch!ylerville% *aratoga co!nty. The
boiler eCploded and was pro"ected and thrown on to /s property and thro!gh several of his b!ildings.
o 6olding0r!le: )ot liable2 loos to negligence not strict liability. #ne of first ma"or American decisions $with
8endall v. Brown' to clearly embrace a negligence r!le over a strict liability case.
5ant a r!le that holds the b!siness comm!nity liable for negligence
America was a growing ind!strial nation% !nlie the 7ngland of 3letc/er
Siegler v. Kuhlan (ga! e:plo!ion)
o 4acts: -arol 6o!se died in a gas eCplosion beca!se a gas tan detached from the tr!c and crashed onto the road
below.
o 6olding0r!le: There is strict liability beca!se transporting gasoline in tans by highway is an abnormally hazardo!s
activity.
)ndiana 'arbor Belt ,, #o. v. +erican #yanaid #o. (!hip haAardou! cheical!)
o 4acts: . shipped a hazardo!s chemical% acrylonitrile% from Lo!isiana to )ew Eersey% b!t the shipment stopped in
1iverdale% "!st so!th of -hicago. 5hen the car got there% they discovered there was a lea and had to evac!ate the
area !ntil they co!ld determine how m!ch had leaed. It cost the railroad yard N>H<%I==.LG to decontaminate the
area. / s!es . to recover costs.
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o 6olding0r!le: )o strict liability here. )o evidence that acrylonitrile is so hazardo!s an activity% even when d!e care
is eCercised that transporting it sho!ld be relegated to non-pop!lated areas. AInability to eliminate risB is the
deciding factor. This is indicative of a larger trend.
#abridge Water #o. v. 0a!ter #ountie! -eather .-# (water containation)
o 4acts: 5ater contamination occ!rred as a res!lt of .s tanning activities.
o 6olding0r!le: 4oreseeability of damage of the relevant type sho!ld be regarded as a prere+!isite of liability in
damages !nder the r!le.
$roduts Liability
o General
o 7lements of a prod!cts liability claim:
. was a seller0engaged in the b!siness of selling
/rod!ct
*old in defective condition $!nreasonably dangero!s'2 man!fact!ring% design% or instr!ctions0warning defect
-ons!mer eCpectation test2 #1
1is0!tility or benefit test $see 3arer v. L!ll'
.esign defect case: there was a technologically and economically feasible safer% alternative design
o A!to design cases: all a!tomobiles m!st be crashworthy to avoid classification as defective
/ was a cons!mer or !ser
.efect in prod!ct was act!al or proCimate ca!se of in"!ry
-ons!mer0!ser or his0her property was in"!red
/hysical in"!ry
(ental in"!ries are generally also incl!ded
o 1estatement $=d' ?KI=A: *pecial Liability of *eller of /rod!ct for /hysical 6arm to Fser or -ons!mer
#ne who sells any prod!ct in a defective condition !nreasonably dangero!s to the !ser or cons!mer or to his
property is s!b"ect to liability for physical harm thereby ca!sed to the !ltimate !ser or cons!mer% or to his property%
if
The seller is engaged in the b!siness of selling s!ch a prod!ct% and
It is eCpected to and does reach the !ser or cons!mer witho!t s!bstantial change in the condition in which it
is sold.
The r!le stated in *!bsection $<' applies altho!gh
The seller has eCercised all possible care in the preparation and sale of his prod!ct% and
The !ser or cons!mer has not bo!ght the prod!ct from or entered into any contract!al relation with the
seller.
o -omment f: b!siness of selling
1!le applies to any person engaged in the b!siness of selling prod!cts for !se or cons!mption. It applies to
man!fact!rers% wholesale or retail dealer or distrib!tors% and to the operators of resta!rants.
.oes not apply to the occasional seller of food or other s!ch prod!cts who is not engaged in that activity as a part of
his b!siness
7C. .oesnt apply if yo! sell yo!r car once
Also% commercial sellers of !sed prod!cts may not be liable to cons!mers where !sed goods are sold in essentially
the same condition as when man!fact!red
o -omment g: defective condition
Applies only where the prod!ct leaves sellers hands in a condition not contemplated by the cons!mer% which will be
!nreasonably dangero!s to the cons!mer.
)ot liable when deliver prod!ct in safe condition and s!bse+!ent mishandling maes it harmf!l by the time it is
cons!med
o -omment h
/rod!ct is not in a defective condition when it is safe for normal handling and cons!mption.
If in"!ry res!lts from abnormal handling% the seller is not liable
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.efective condition applies to both the prod!ct itself and the container it comes in
o -omment i: !nreasonably dangero!s
Article sold m!st be dangero!s to an eCtent beyond that which wo!ld be contemplated by the ordinary cons!mer
who p!rchases it% with the ordinary nowledge common to the comm!nity as to its characteristics.
o -omment ": directions or warning
To prevent a prod!ct from being !nreasonably dangero!s% the seller may be re+!ired to give directions or warning
on the container as to the prod!cts !se
(ostly in cases where the cons!mer wo!ld reasonably not eCpect the presence of danger
)ot re+!ired to warn with respect to prod!cts or ingredients that are only dangero!s when cons!med in eCcessive
+!antity% over long periods of time% or whose potentiality of danger is generally nown and recognized
o -omment : !navoidably !nsafe prod!cts
(ostly applies to dr!gs
/rod!cts which are incapable of being made safe for their intended and ordinary !se
*till m!st be properly prepared and accompanied by proper directions and warning% b!t is not considered defective
or !nreasonably dangero!s
o -omment l: !ser or cons!mer
Fltimate !ser or cons!mer does not have to ac+!ire prod!ct directly from the seller% nor does the cons!mer have to
have p!rchased it at all
Incl!des those who cons!me the prod!ct% b!t also those who prepare it for cons!mption% or those who passively
en"oy the benefit of the prod!ct
o -omment n: contrib!tory negligence
-ontrib!tory negligence of the plaintiff is not a defense when s!ch negligence consists merely in a fail!re to
discover the defect in the prod!ct or to g!ard against the possibility of its eCistence
3FT if / vol!ntarily and !nreasonably proceeds to enco!nter a nown danger% he is barred
.iscovers the defect% is aware of the danger% b!t !ses it anyway and is in"!red by it
o 1estatement $@d' changes
7Cplicit classification of defects as either man!fact!ring% design% or warning defects
7limination of the Acons!mer eCpectations test in design defect casesB
-ons!mer eCpectations are factors to be considered in maing the ris !tility balance
A prod!ct is defective in design when the foreseeable riss of harm posed by the prod!ct co!ld have been
red!ced or avoided by a reasonable alternative design&and the omission of the alternative design renders
the prod!ct not reasonably safe
o The plaintiff m!st show that the proposed alternative design eCists and is s!perior to the prod!ct in
+!estion
.r!g man!fact!rers are liable for man!fact!ring defects% design defects% and inade+!ate warnings or labels
o De*en!e!
o Ass!mption of ris
o Learned intermediary
(an!fact!rers may not be liable to cons!mers !nder warning defect prong of strict liability if ade+!ate warnings
have been provided by the physician
o (ishandling
o /rod!ct alteration
o *tate of art
o /reemption
-o!rts have sometimes fo!nd that federal law precl!des tort liability for dangero!s prod!cts
o 7+!itable apportionment0comparative fa!lt
If / does something that contrib!tes to their in"!ry $s!ch as !sing a defective prod!ct with f!ll nowledge that its
defective'% they may be contrib!torily negligent
1ATI#)AL7: *trict liability is s!pposed to provide protection for cons!mers who are powerless to protect
themselves% b!t if / does something that contrib!tes to his in"!ry% hes not powerless
.ont want to create a moral hazard problem of cons!mers being sloppy abo!t their own safety
.ont thin its fair for man!fact!rers to have to bear all the liability even tho!gh / did a lot of bad things% too
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o 0conoic in/ury
o *trict prod!ct liability may not apply where the type of in"!ry ca!sed by a defective prod!ct is mere economic in"!ry
o !orman v. 2ational Tan.: financial losses s!ffered by plaintiff are not compensable !nder strict liability when the grain
storage tan man!fact!red by . craced and became !n!sable
o 'i!torical Bac$ground
Case law
"hoa! v. Winche!ter (dandelion e:tract)
o 4acts: / p!rchased eCtract of dandelion for his wife b!t instead p!rchased eCtract of belladonna beca!se the
man!fact!rer had mislabeled it $.'. Is there privity between / and .:
(s. Thomas (r. Thomas .r. 4ord Aspinwall 5inchester0,ilbert S!nnamed man!fact!rer or
dealerT
o 6olding0r!le: . is liable 3FT thats beca!se poison is involved% and poison is inherently dangero!s
)ormally / cannot recover against third parties beca!se theres no privity of contract $9inter-ottom v.
9ri,/t'
)arrowest r!le: yo! can be held liable even if theres no privity of contract if poison is involved
&ac.her!on v. Buic$ &otor #o. (wheel bro$e)
o 4acts: / bo!ght a 3!ic% and while he was driving it% one of the wooden wheel spoes cr!mbled. 3!ic bo!ght
wheel from different man!fact!rer% b!t defects co!ld have been discovered thro!gh reasonable inspection. .oes .
owe d!ty to / to inspect wheels even tho!gh / was not the immediate p!rchaser and . did not mae the wheels:
o 6olding0r!le: . does have a d!ty to mae things arent defective. -ars are potentially dangero!s prod!cts beca!se
if theyre improperly constr!cted% theres a good chance people will get h!rt. . was responsible for the finished
prod!ct even if . didnt mae the act!al wheels.
0!cola v. #oca #ola Bottling #o. o* %re!no (e:ploding co$e)
o 4acts: 5aitress was p!tting coe bottles in the fridge% and one eCploded% severing nerves% blood vessels% and m!scles
in her hand. / relied on res i$sa.
o 6olding Ir!le: . is liable beca!se they had eCcl!sive control and that / handled it caref!lly. Also% / did not alter the
bottle in any way% so there was no contrib!tion
Traynors -onc!rrence: (an!fact!rer inc!rs an absol!te liability when an article that he has placed on the
maret% nowing that it is to be !sed witho!t inspection% proves to have a defect that ca!ses in"!ry to h!man
beings.
/!blic policy demands that yo! hold somebody responsible for the prod!ct defects
/rivity and res i$sa dont matter2 if yo! made a defective prod!ct% yo!re liable
Implied warranty arg!ment% too
o 3y p!tting the prod!ct on the maret% yo!re satisfying implied warranty of fitness and
merchantability $F--'
o Breach o* Warranty
'enning!en v. Bloo*ield &otor!( )nc . (car *or wi*e)
o 4acts: / b!ys car for wife and signs agreement waiving all warranties. Less than GII miles after p!rchasing it% /s
wife gets in an accident beca!se the steering wheel went o!t. . says no liability beca!se of disclaimer of implied
warranties and lac of privity.
o 6olding0r!le: . is still liable. / has a lac of bargaining power $!nconscionable'. Lac of privity is immaterial. .
has mareted the car and p!t it into the stream of commerce% so . has a d!ty to mae s!re the car is not defective.
o /olicy: .eprive cons!mers of their right to ass!me ris% and instead impose r!les !pon man!fact!rers and
cons!mers beca!se it is in the p!blics best interest
91
91
o "ype! o* De*ect!
!an&fact&rin, 0efects
/rod!ct leaves man!fact!rers control in an incorrect condition% which is different from the man!fact!rers intent and
different from other !nits of the same prod!ct.
/ m!st show:
A man!fact!ring defect eCisted and was present when the prod!ct left the hands of the man!fact!rer2 and
That more liely than not the defect ca!se the accident
%ord &otor #opany v. GonAaleA (tire daage)
o 4acts: ,onzalez bo!ght a 4ord 7scort in <>H>. There was eCcessive wear on the right front tire% b!t the others were
all fine. 6e had the alignment ad"!sted and the car serviced <I-<G times in = years. , was driving in car when it
"ered to the right and crashed. 5itnesses reported a visible problem with the right front tire.
o 6olding0r!le: 4ord is liable. Theyre in the b!siness of selling prod!cts% and this prod!ct was clearly defective.
/rod!ct did not live !p to cons!mers reasonable eCpectation
-ons!mer may not have the ability or nowledge to now if the prod!ct is dangero!s
0esi,n 0efects
/rod!ct leaves man!fact!rers control in the condition intended% b!t that condition is !nreasonably dangero!s
1@d ?J. Liability of -ommercial *eller or .istrib!tor for 6arm -a!sed by .efective /rescription .r!gs and (edical
.evices: AA man!fact!rer of a prescription dr!g or medical device who sells or otherwise distrib!tes a defective dr!g or
medical device is s!b"ect to liability for harm to persons ca!sed by the defect.B
1@d ?H. Liability of -ommercial *eller or .istrib!tor of .efective Fsed /rod!cts: A#ne engaged in the b!siness of
selling or otherwise distrib!ting !sed prod!cts who sells or distrib!tes a defective !sed prod!ct is s!b"ect to liability for
harm to persons or property ca!sed by the defect.B
Test for defectiveness $from Bar.er)
The prod!ct has failed to perform as safely as an ordinary cons!mer wo!ld eCpect when !sed in a n intended or
reasonably foreseeable manner2 #1
If the benefits of the challenged design are o!tweighed by the ris of danger in that design
.# )#T have to prove negligence or !nreasonableness
)#T7: This test is inconsistent with 1estatement @d
Bar$er v. -ull 0ngineering #opany( )nc. (high1li*t loader)
o 4acts: / while operating a high-lift loader man!fact!red by . and leased to /s employer. / claims that the defective
design was the proCimate ca!se of in"!ries.
o 6olding0r!le: . is liable. / doesnt have to prove that the man!fact!rer acted !nreasonably or negligently% "!st has
to meet test above.
3!rden is on . to prove that the prod!ct is not defective
'ernandeA v. "o$ai ($id! play with lighter)
o 4acts: /s child b!rned by sibling playing with a b!tane lighter. /s friend bo!ght the lighter. Is the lighter% which is
intended for ad!lt !se% defective if it lacs child-resistant mechanisms to protect from the ris of in"!ry from a
childs foreseeable mis!se of the lighter
o 6olding0r!le: . is not liable. There are lighters that have safety locs% and / chose to !se one with o!t. .ont want
to tae away cons!mer choice
/roof of an available safer alternative design is necessary b!t not s!fficient for liability
/ m!st also show that prod!ct was !nreasonably dangero!s as designed
Also have to show that a safer design is technologically feasible
Brown v. Superior #ourt (birth de*ect!)
o 4acts: /s claim that .7* ca!se birth defects beca!se there was a design defect in the dr!g. . says no% beca!se cant
apply the Bar.er test for design defects
o 6olding0r!le: .s cannot be held strictly liable to /s
92
92
.s d!ty is to warn physicians of dangers% who is then s!pposed to pass it on to the patient
-omment asserts that dr!g man!fact!rers are only liable for warning of defects they now or sho!ld have
nown abo!t. The d!ty is to warn physicians.
This is a negligence standard% not a strict liability standard.
o /olicy: There is a broader p!blic interest in the availability of dr!gs at an affordable price
(ere fact that the dr!g is inherently dangero!s does not s!b"ect man!fact!rer to strict liability
*ometimes taing very high ris dr!gs are worthwhile beca!se of the benefits
9arnin, 0efects
o /rod!ct leaves man!fact!rer witho!t ade+!ate warning% labels% or pacage inserts $?KI=A comment "'
-iving!ton v. &arie #allender3!( )nc. (&SG)
o 4acts: / has severe (*, allergy and ass if there is any (*, in so!p. 5aitress says no b!t it is here. / s!es !nder
?KI=A comment ": fail!re to warn abo!t ingredients to which many people are allergic.
o 6olding0r!le: E!ry sho!ld decide if resta!rant had a d!ty to warn / of presence of (*,
-!stomers sho!ld get warnings abo!t possible food allergens% especially common ones
-!stomers sho!ld now the riss of what they are cons!ming
@ac$!on v. #oa!t .aint and -acFuer #opany (*laable paint)
o 4acts: / was !sing epoCy paint% which is highly flammable% and he was severely b!rned when a fire spared.
7mployer new that the paint co!ld be hazardo!s. There was a warning label on the paint can !sed by /.
o 6olding0r!le: . is liable beca!se they had to mae s!re painter new abo!t the danger% not "!st the employer
/ainters are the ones who are !sing the paint all the time% not the employers. Theyre the ones who are most
liely to be harmed by the prod!ct% so they need to now abo!t it
o One Who Sell!
General
o (an!fact!rers% distrib!tors% retailers% and lessor are liable as sellers%B b!t commercial sellers of !sed prod!cts may
not be liable to cons!mers where !sed goods are sold in essentially the same condition as when man!fact!red
Case law
+llenberg v. Bently (no !eat belt!)
o 4acts: / and da!ghter traveled to the airport on a b!s owned by .% which . had bo!ght !sed from Aransas 3!s
7Cchange. 3!s did not have seatbelts% and / died as a res!lt of being fl!ng from seat d!ring accident. / says that
Aransas 3!s distrib!ted and sold a defective% !nreasonably dangero!s sh!ttle b!s
o 6olding0r!le: Aransas 3!s is not liable beca!se they are not sellers. They sold the b!s as they fo!nd it% and were
not responsible for its design or man!fact!re
o Sale o* .roduct! or .rovi!ion o* Service!G
Case law
,oyer v. #atholic &edical #enter (pro!thetic $nee)
o 4acts: / gets a prosthetic nee from .% b!t its defective. . gives him a new one thro!gh second operation. / s!es
. along with man!fact!rers beca!se of design defects.
o 6olding0r!le: . is providing a service to /2 their p!rpose is not to sell prosthetic nees. / did not go to hospital to
p!rchase a prosthetic nee2 he went to obtain health care services that incl!ded the implantation of the nee
-ant have hospitals being liable for every single problem with medical devices
93
93
o 0conoic -o!! .roble
General
o *trict prod!ct liability applies where a defective prod!ct in!res a person or property% b!t may not apply where the
type of in"!ry ca!sed by a defective prod!ct is mere economic in"!ry
Case law
&ooran &anu*acturing #opany v. 2ational "an$ #opany (!torage tan$)
o 4acts: / bo!ght a grain storage tan from . and !sed it for <I years witho!t any problems. Then a crac developed
in one of the steel plates. / said there was a man!fact!ring defect and so!ght damages for the cost of repairs and
loss of !se of the tan.
o 6olding0r!le: . is not liable for p!rely economic losses !nder strict liability. *trict liability foc!ses on !nreasonable
dangero!sness% which has little relevance to economic losses where there is no personal in"!ry or property damage.
o .lainti**3! #onduct
Case law
Daly v. General &otor! #orporation (thrown *ro car)
o 4acts: / was driving dr!n and hit a metal divider fence. 6e was thrown from the car and died. 6is estate alleges
that if the car had been designed properly he wo!ld not have been thrown from it and wo!ld have s!rvived.
o 6olding0r!le: / was contrib!torily at fa!lt beca!se his in"!ries wo!ld have been mitigated had he been wearing a
seat belt and loced the car door.
AThe cond!ct of one party in combination with the prod!ct of another% or perhaps the placing of a defective
article in the stream of pro"ected and anticipated !se% may prod!ce the !ltimate in"!ry. In s!ch a case&we
thin the term Me+!itable apportionment or allocation of loss may be more descriptive than Mcomparative
fa!lt.B
General &otor! #orporation v. SancheA (truc$ rolled)
o 4acts: * bled to death when a tr!c shifted from par to ne!tral and rolled into him. 4amily says that ,( is liable
beca!se there was defect in the shifting mechanism. ,( says that its liely that * left tr!c in reverse or ne!tral by
mistae and it rolled onto them.
o 6olding0r!le: ,( is liable beca!se / has no d!ty to discover or g!ard against a prod!ct defect
-ond!ct other than mere fail!re to discover or g!ard against a prod!ct defect is s!b"ect to comparative
responsibility
$oliy and Overview
o General
o In Tort we are responding to in"!ry and death. In the Fnited *tates% we have determined that the most appropriate
response is private litigation% a private law sol!tion.
Alternative: Administrative remedies $lie wormans compensation'
5o!ld potentially red!ce the costs and b!rdens of litigation% wo!ld spread the riss of in"!ry
across society by creating an ins!rance f!nd% liely thro!gh taC reven!es
o Lie the polio vaccine f!nd% some people got polio from the vaccine% set !p a government
compensation f!nd for people that contracted from vaccine
5hy have a private system as opposed to the administrative system:
.eterrence val!e $over deterrence problem'
1etrib!tive val!e
97
97
1ed!ces the size of government% eeps government from interfering in private affairs
Individ!als o!ght to be responsible for their choices
The wrongdoer himself maes the victim whole self responsibility
/roblems with private law system
Litigio!sness
#ver deterrence $Lymes disease cases% had a vaccine% people who did not get h!rt by vaccine
claimed in"!ry and so had to tae it off the maret'
Leads to potentially ill-gotten gains and deceit by lawyers
o 3ad evidence and fra!d!lent claims
o (ay mae viable claims with good evidence harder to see% and may deny them relief
/otential for over and !nder compensation
o .hilo!ophical goal! o* "ort
o .eterrence $over deterrence:' 3entham% (ill
*pecific .eterrence deter the specific actor thro!gh liability from doing this type of activity in the f!t!re%
may drive o!t of maret $Lymes'
,eneral .eterrence deter other potential actors from engaging in activity
o -ompensatory $compensation of victims% over or !nder compensation:'
o /!nish the perpetrator $retrib!tive "!stice' 8ant
o 0conoic Goal!
o 1is spreading do not have the victim bear the ris entirely
o -ost spreading cost of alleviating in"!ry
o 4inding the better briber 3olton v. *tone $similar to entitlements in property% only "!st !sing liability entitlement%
altho!gh perhaps co!ld arg!e that if find for cricet cl!b% they are giving the cl!b a property entitlement' see
3olton for cheapest cost avoider% etc.
o 1ed!ction of Accident -osts
/rincipal goal of tort law: 1ed!ce the s!m of accidents costs A). the costs of avoiding accidents
*!bgoal <: 1ed!ce the n!mber and severity of accidents
*!bgoal =: 1ed!ce the societal costs res!lting from accidents
*!bgoal @: 1ed!ce administration costs $we dont want b!rden to o!tweigh the benefit'
There are tradeoffs with these s!bgoals. V!estion is how to find the optimal level of all @
Theoretical 3asis
5e ass!me no one nows what is best for individ!als better than they themselves do
3FT&if people dont acco!nt for accident costs% we get too many accidents. And% if we forbid all
accident-prone activities% we deny people the option to ApayB for their costs% even if it wo!ld be
socially beneficial
3oth problems lead to a misallocation of reso!rces $inefficiency'
Therefore% its better to say that sometimes people now whats best for themselves
,eneral .eterrence $maret approach'
-reates incentives to engage in safer activities
-reates incentives to mae those activities safer
Again% !sing the -oase model% allocation of losses wo!ld not matter if transactions costs of
information costs were zero. This is not realistic% tho!gh.
Th!s% +!estion is: 6ow sho!ld we determine who is the cheapest cost avoider:
o *trict LiabilityD-albresi and 6irschoff
6and Test ass!mes 3% /% and L will be applied perfectly
In short% the party that seems to be in the best position to do the cost-benefit analysis $either thro!gh lens of
strict liability or ass!mption of ris' may not be as f!lly informed as we thin
*trict liability enco!rages activity-level changes by potential in"!rers b!t disco!rages them by potential
victims
7.g.% !nder strict liability% an individ!al will have no incentive to mitigate losses ca!sed by another
partys negligence beca!se his lac of mitigation will not be deemed contrib!tory negligence
99
99
)egligence liability enco!rages activity-level changes by potential victims b!t disco!rages them by
potential in"!rers
-#)-LF*I#): Astrict liability differs from negligence in the incentives imparted to in"!rers and victims
to avoid accidents thro!gh changes in activity levels% in information and claim costs% in the provision of
ins!rance% and in the size and profitability of the liable activityB
o 'i!tory
Also loo to history of tort law% why did we go from strict liability to negligence to negligence and strict W strict prod!cts
liability
o 5hy did we give !p with strict liability in <>
th
- and yet t!rn bac towards it in the =I
th
-% and how does the shift
reflect o!r commitment to these partic!lar val!es:
Liely economic eCplanations for the first shift
Legally "!stified by a Aconf!sionB in the precedents over pleading rit!als
o *trict liability over deterrence
o /rod!cts liability fear of not getting compensated% ris spreading
(ay have diffic!lty proving fa!lt% additionally% the man!fact!rers appear more capable of bearing the ris
of defect small n!mber of defects over a wide range of prod!cts $partic!lar to man!fact!ring% which of
co!rse% is the only tr!e for of strict prod!cts liability'
o %airne!! and 9tilityEGeorge %letcher
1eciprocity
o 7Cplains both strict liability and negligence
o A!neCc!sed nonreciprocity of ris is the !nifying feat!re of a broad spectr!m of cases imposing liability !nder
r!brics of both negligence and strict liabilityB
o )onreciprocal ris-taing helps eCplain strict liability
(ost people have pets% children% or friends whose presence creates some ris to neighbors and their
property. These are riss that offset each other2 they are% as a class% reciprocal riss
o 8ey /oint all individ!als in society have the right to ro!ghly the same degree of sec!rity from ris
This means that we are s!b"ect to harm% witho!t compensation% from bacgro!nd riss% b!t that no one may
s!ffer harm from additional riss w0o reco!rse for damages against the ris-creator
-ompensation is a s!rrogate for the individ!als right to the same sec!rity as others
o #verall% strict liability and negligence% when looed at thro!gh paradigm of reciprocity are not contrary theories b!t
complementary theories of the same paradigm of liability
1easonableness
o Fnder this new paradigm% fa!lt came to be less of an individ!alistic in+!iry and more of an in+!iry abo!t the conteCt
and the reasonableness of the .s ris-creating cond!ct
o E!stification X when "!stifying cond!ct% are saying that in the f!t!re% cond!ct !nder similar circ!mstances will not be
regarded as wrongf!l or illegal $e.g. !se of force in sit!ation of self defense'
o 7Cc!se X when eCc!sing cond!ct% are leaving intact the imperative not to engage in the eCc!sed act all the time $e.g.
insanity defense for m!rder does not mae the act of m!rder alright'
1eciprocity v. 1easonableness
o 1easonableness X strategy of !tility that proceeds on the ass!mption that b!rdens are fairly imposed if the
distrib!tion optimizes the interests of the comm!nity as a whole
o 1eciprocity X based on a strategy of waiver- 3aseline is that all en"oy same level of sec!rity and appeals to cond!ct
of victims themselves to determine the scope of the right to e+!al sec!rity
o .enying liability:
Fnder reasonableness wo!ld have to arg!e that activity socially beneficent and warrants enco!ragement
Fnder reciprocity wo!ld have to arg!e that the ris is an ordinary% reciprocal ris of gro!p living
o Are some cases where reciprocity paradigm seems to fit better in describing sit!ations where socially !sef!l
activity imposes nonreciprocal riss on those aro!nd it
5hen pedestrian hit by a car% rationale for p!tting costs on motoring p!blic $by holding man!fact!rers
liable% who will then spread costs to cons!mers' is that motoring imposes a nonreciprocal ris on
pedestrians and other bystanders
o 3asically% lawyers are l!lled into a false sense of sec!rity in believing that the reasonableness paradigm is
s!bstantively better than the reciprocity paradigm
9;
9;
o .efine the bo!ndaries of individ!al liberty
1!les of strict liability $ca!sation and volition' provide the best answers in both moral and economic terms
A&liberty of one person ends when he ca!ses harm to another. Fntil that point he is free to act as he
chooses% and need not tae into acco!nt the welfare of othersB
)o need to serve as Agood *amaritan%B and e.g.% save a drowning child even tho!gh it co!ld be
done with little to no inconvenience
o #au!ationE,ichard 0p!tein
3asically 7pstein says that since ca!sation is so !ndeterminable% co!rts are free to decide partic!lar laws!its with principles
of social policy !nder the faYade of the proCimate ca!se doctrine $similar to /alsgraf dissent it is not law% it is politics'
o %eini!t .er!pective!
" A5hile seemingly gender-ne!tral% these val!es have privileged men as traditional owners of property and b!rdened women%
to whom emotional b!rden of relationships is commonly assigned.B
" -ategorization of a legal harm is an active processDAIn a gendered world% in"!ries are socially constr!cted so that the gender
of the person claiming a loss can affect the legal concept!alization of the harmB
" A.egendered acco!nts of the evol!tion of the law governing fright-based in"!ries fail to acco!nt for the fact that maternal
relationships are often at the center of these cases. They also fail to acnowledge the possibility that the AprogressionB of the
law is related to changing societal views of womens roles. 4!rther% these seC-ne!tral acco!nts of the law tend to obsc!re the
gender significance of the basic legal hierarchy that places material property rights above relations and emotions.B
" Tort actions for Awrongf!l birthB: press!res health professionals to mae s!re that pregnant or potentially pregnant woman is
advised of any condition that might affect her own well-being or that of her !n-born child.
" A(en and women have been enmeshed in a system of meaning and law that% while aiming at e+!ity% disco!nted and failed to
recognize claims associated with women and their interests. To be loced into a series of d!alisms that pose men against
women and e+!ality against difference inhibits o!r ability to establish conteCt and to perceive hidden relationships of
dominance and s!bordination.B
o #ritiFue o* "ort!E,ichard +bel
" (oral E!dgment
o Tort liability is incoherent as a moral system
o Tort law has become more economic% replacing moral fa!lt with efficient allocation of reso!rces
" -ompensation
o ATort damages not only are inade+!ate as compensation% they also are !ne+!al% thereby symbolizing% reprod!cing%
and intensifying eCisting ine+!alities.B
o *ome people are more liely than others to be victimized by tortfeasors who cannot or will not pay compensation
$disproportionately poor% racial minorities% women'
o Tort law intensifies social ine+!ality
o A3y preserving the income streams of those who s!ffer physical in"!ry% tort damages endorse the legitimacy of the
eCisting income distrib!tion and the intergenerational reprod!ction of ine+!ality&by 3y eCcl!ding some victims
and in"!ries and disco!raging others from claiming% tort law s!ggests that they are less highly val!ed.B
o 3y monetizing intangible in"!ries tort law eCtends a f!ndamental concept of capitalismDthe commodityDfrom the
sphere of prod!ction to that of reprod!ction
.eh!manization of s!bstit!ting money for in"!ries
.amages of pain and s!ffering commodify eCperience% while damages for loss of companionship and
wrongf!l death commodify loveDass!mes there is a single scale against which everything can be raned
" *afety
o -o!rts often loo for the deep pocet defendant and constr!e negligence to rationalize the imposition of liability
o Threat of damages enco!rages entreprene!rs to minimize liability% not accident costs.
o (oney damages !ndermine the collective interests in safety by perpet!ating the lie that they restore the victim to the
stat!s +!o ante and by aro!sing "ealo!sy toward newly wealthy victim.
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