Table of Contents

INTENTIONAL TORTS ............................................................................................................................. 2 DUTY ............................................................................................................................................................ 3 Premises and Rowland .................................................................................................................... 3-4 Implied Rights of Action .......................................................................................................................................... 4 Special Duty ................................................................................................................................................................... 5 BREACH ....................................................................................................................................................... 6 SOC, BPL, Best Cost Avoider, Res Ipsa .............................................................................................................. 6 CAUSATION ................................................................................................................................................ 8 Factual, Proximate, Supervening 1 .................................................................................................................... 8 Eggshell Skull 1 ............................................................................................................................................................ 9 DEFENSES ................................................................................................................................................ 10 CN, Comp Fault, JS, Sequential, Supervening 2 ......................................................................................... 10 AOR, Indemnity ................................................................................................................................................. 10-11 DAMAGES ................................................................................................................................................. 12 Eggshell Skull 2/Psyche, Survival/Wrongful, Econ/Non-econ ........................................................ 12 Nominal, Punitive, Vicarious Liability ........................................................................................................... 13 IIED, NIED, STRICT LIABILITY .......................................................................................................... 14 PRODUCTS LIABILITY ......................................................................................................................... 15 Warnings, Defenses ................................................................................................................................................ 16

-Corrective Justice -Deterrence INTENTIONAL TORTS 1. BATTERY a. Act b. Intention c. Harmful or Offensive contact d. Causation i. CONTACT 1. Contact just needs result from Ds intention. 2. Can be under the circumstances Vosberg. ii. INTENTIONSubjective 1. Not sufficient that action merely RISKS contact. 2. Intent touching sufficient even if not intend harm or offense. 3. OR act with SUB CERTAINTY that will result from actions. a. SUB CERTAINTYboth ind basis for liability and proxy for proof. 4. TRANSFERRED INTENTcan be third partyperson not intended to be touched. e. Damages f. DEFENSEConsent. 2. ASSAULT a. Act b. Intent to cause apprehension of immediate harmful or offensive touching c. Apprehension d. Causation i. Threat must be immediate. NEGLIGENCE THINK FIRST 1. Whats the ACT or OMISSION??? OR What is the BREACH? 2. Explain WHY D owed DUTY. 3. P must show actual causeCAUSE IN FACT and proximate cause. 4. Any DEFENSE(S)? 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. SPECIAL RELATIONSHIPS??? OR Affirmative Duty??? PREMISES-LIABILITY??? THINK hard about CASES to ANALOGIZE!!! Contractual obligations??? Run it all through the NEGLIGENCE ELEMENTS!!! LEVEL of GENERALITY!!! SUPERSEDING CAUSEthe RIPPLESand Who Should Be Held Responsible!!! Institutional competence of med profession!!! Affirmative duty existing or created??? If police, e.g., must make specific promise to protect. BPL!!! POLICYTENSION of STANDARDSobjectivity, predictability, certainty V. fit with substantive policy goals. a. Can always overlay evidentiary sufficiency on fact questions and BAM! turn them into questions of law! b. OPTIMAL (REASONABLE) not PERFECT c. Asymmetry of information??? Best-cost-avoiderwho has the info??? d. AUTONOMYWhere do we want to place responsibilitygets at skiing AOR Q.

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GENERAL a. P has BURDEN which is: i. Burden of productionjury could find . . . LAW for the JUDGE! ii. Burden of persuasionpreponderance . . . b. MUST have Act or Omission DUTY a. THINK about ADMINISTRABILITY and LINE-DRAWINGSTANDARD must relate to the Tort system. b. SPECIAL RELATIONSHIP??? c. DETERMINING DUTY i. Objective Testconduct-based rather than SUBJECTIVE (inner state of mind of D) Reasonable person of ordinary prudence via Vaughan v. Menlove and Heaven distinguished Winterbottoms Privity Ruleno more need for direct standard. Thomas gets to inherently dangerous. Devlin gets to Imminently dangerous. MacPherson jumps to WHO will use product. 1. ASK: is there a separation in space and/or time? Did an intermediary mess with product or act? Is it too far removed in time? 1. Winterbottom (Privity Rule)Loop and Losee follow suit. 2. Thomasbrings in imminent and inherent. Devlin, Torgesen, and MacPherson follow suit. 3. CONSIDER a. Utilityof conduct Restatement (2nd) of Torts 291 b. Extentof risks posed by conduct Rest. (2nd) Torts 293 c. Likelihoodof risk causing harm Rest. (2nd) Torts 293(d) d. AlternativesRest. (2nd) Torts 292(c) 4. Mussivandbroadens SOC to third party but narrows it to foreseeable parties. Thinking in terms of checks and causation. a. Cant be responsible for ALL potential injuries. 5. RULES and STANDARDS: CARDOZO in AdamsBrings in the zoneleave duty as matter of law BUT also Pokora if uncertain leave it as matter of fact for juries. Shift from HOLMES in Goodman (RR track no barrier). a. BRIGHT LINE Drawing may be unfair but easy to administer. b. NEED SOME line drawn. 6. CARDOZOIs duty owed TO THIS PERSON in virtue of THIS TYPE OF HARM? Via Palsgraf and Mussivand helps illustrate the principle. JUDGE v. JURY issue. a. ANDREWS (anyone)Palsgraf matter of fact leave it to the jury. ii. Circumstances can play a parthow reasonable person act in emergency. iii. Premises Liability a. Naturalno duty except urban area and minority view. b. ArtificialJolley (boat/kids). Duty. c. KidsRest. 339attractive nuisance ONLY applies if kids dont realize risk AND utility to landowner slight compared to risk. d. Lessorsduty until lessee has reasonable opp. To discover. BUT if lessor actively conceals then duty continues. DUTY to lessee unless reasonably apparent. No duty after lease period begins except: 1) making neg. repairs; 2) failure to repair as covenanted in lease. e. Lessor owes duty to visitors of lessee. 2. The invitee, etc breakdownLeffler to Rowlandthat tries to turn it more into matter of fact.

2.

Trespasser

Def No permission (express or implied) of owner

Licensee

Permission (express or implied) of owner

Invitee

Economic exchange for mutual benefit of both partiesBUSINESS or PUBLIC

SOC Refrain from willful or wanton conduct extreme departure from SOCdiffering in quality not just degree. Worse than simply inattention. No traps. Not resp. for that strewn by others. Same as Trespasser (in Miss.) Most jurisdictions handle with invitees or rec. middle ground. OFTEN warn of ACTUALLY known dangers ONLY if P does not already know of risks. Reasonable Care. Owner may have to FIX problem. As opposed to might have been reasonably discovered. AND activities.

3.

ROWLAND Factors: a. Reasonable person in the management of her property in view of the likelihood of injury to others. i. Foreseeabilty of harm. ii. Ps status. iii. Relation between the Ds conduct and Ps injury. iv. Moral blameworthiness attached to Ds conduct. v. Availability of insurance. INFORMATION ASYMMETRYD may be in better position to help than PTACO BELL. Common carriersduty of reasonable care to all passengers. Children283A. Tender years doctrine. No liability for 5 and under. EXCEPT when kids engage in dangerous adult activitiesno way for others to KNOW it is a child. Disabilities MentalRestat. (2nd) Torts 283B Beginners in risky activities Pros Med Pros Emergencieswhen danger arises w/out warning, circumstance may be taken into account in assess reasonableness of behavior of party faced with danger. SPECIAL circumstances considered, too. Ex postperspective of legal decision maker rulereasoning from AFTER point of view. What are liabilities AFTER the thing has already happened. After incident to help. Decision Rules; Process values

4. 5. 6.

7. 8. 9. 10. 11. 12.

13. iv. POLICY Ex AntePeople trying to decide how to act. What would we set up if trying to accomplish valuable end . . . Before incident to help What incentive effects does this create? CONDUCT rules Substantive policiesfairness, efficiency. E.g. Taco bell case (must hire EMTs)bad implications! 1.

Implied rights of actionparticularizes duty. a. Bootstraps DUTY to certain D. b. THINK: Did legislature have this in mindcourt averse to this analysis.

2. 3.

Conferral of jurisdiction in statute for court to hear these cases does NOT mean it confers a rightmust still be found in statute that individual was wronged. d. Who interpretscourt or legis? Rehnquist narrows Cort and says leave it to leg. If not specific in language of statute, no implied right. e. Cf. Borak (stock-holder for violation of proxyhurt his ind. Stock.) Danger is allowing suits based on any wrong not on a right created. ASK: Is there a right actually created by statute? Misfeasancepositive duty b/c of actionaction taken. Nonfeasancefailure to act. Osterlind (no duty) Baker (Taco Bell) (duty)does NOT have to be invitee AND instrumentalityAyres.

c.

v. Special Duty Cases 1. Rescuecontra to usual NO duty in NONFEASANCE! a. NO duty unless affirmative good Samaritan b. May be duty to prevent harmdrunk guy had duty to take drunk friend to hospital. 2. Other cases a. Liability from kids does not impute to parents.

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BREACH a. Often really matter of law, tooDoes A owe duty NOT TO BREACH X to B. b. May be TWO types: i. Duty of due care (Common SOC). Is there a SPECIAL RELATIONSHIP??? ii. Special duty by statute or common law. (Court determines standard (eg PRO) jury will use to determine BREACH.) c. Ways to determine and/or show breach: i. STANDARD of CAREremember diff. between amount and standard (gasoline example). Look for diff between PARTICULARITY (Meyersknow dutyneed to know evidentiary suff.) AND determining SOC. 1. Med Pro Standard. Largey (lymph node removal). Docs should warn about ALL or SOME risksex ante v. ex post. Idea that we trust professionals to make ethical decisions. a. Johnsondet. Whether about credibility of testimony of Doc OR about challenging pro SOC. b. Tarasoffrebels against classifications ala Rowland. 2. CustomHooper (defensive use) (radios needed even though not custom). Careful not to let Ds always determine customlower standard. But Ds in best position. Trimarco (shower glass)est. custom for hotels to use safety glass. P uses as sword; D uses as shield. 3. Statutory (or Regulations but not certain)NEGLIGENCE PER SE REMEMBER: can run case through traditional duty OR with neg per se, given duty, can we particularize it to this situationDuty to ____ in virtue of _____ harm. a. CONCLUSIVE. True neg. per se means conclusive inference Cardozo in Herzog says driving w/out lights is neg. in itselfonce party establishes neg. per se it SHALL find negligence (breach). b. PERMISSIVE. In some places this is usedjust shifts burden to opposing partysee res ipsa. E.g. Violation can be excused if NOT doing the violation of statute would be more dangerousD invokes contrib. neg. for a violation of statute; court says actually P shows that violation OKperson walking on wrong side of the road caseTedla P was hurt when violating a statute by walking on the wrong side of the road with deaf, mute brother and hit by a car. P could still recover because the statute contained a customary exception when traffic was particular heavy if Ps walked properly against traffic. THREE ELEMENTS NECESSARY: a. Must be safety. b. Certain persons. Bayne. c. For THIS type of harm. ii. HAND formula Coststake precautions that are worth it. 1. BREACH = B(urden) < P(robability) X L(iability or Severity)HAND formula. US v. Carroll Towing Co.Zapata (checks case) good use of BPL. Adams (kid with wire)no Burden. 2. Weighing of compliance costs and deterrence. iii. Best cost avoider. 1. Judge Calabrezziallocate costs of accidents to party in BEST position to prevent harm. SO Vaughan shows that D in better position. ECONOMIC POLICY. iv. RES IPSA LOQUITOR + THREE elementsburden shifts to D.Byrne. 1. Type of harm almost always occurs cuz someones neg. 2. D is conceivable actor and Neither P NOR third party intervened. 3. D most likely in possession of instrument.

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PERMISSIVE INFLUENCE (Maj. View in Res Ipsa cases). Trier of fact may but does not have to find for part with burden. Got past summary judgment as P. If get res ipsa, enough to get to trial and then even for all jury can decide. No effect on burden of persuasion. 2. REBUTTABLE PRESUMPTION. Satisfied both production AND persuasion. IF you bring it you win, UNLESS D has evidence to show otherwise. SO, D must produce the evidence. BURDEN SHIFT. NOW, D must show. If get sufficient evidence, then even-steven again. POLICYTWO WAYS to LOOK AT IT 3. EvidentiaryKAMBAT (pg. 208)res ipsa does not change underlying cause of action, alter burdens, etc.,it MERELY regulates permissive influence from some strange happenings. 4. SUBSTANTIVEIf court grants res ipsa in lots of casesif permissive, THEN effect may shift from negligence to strict liability AND altering underlying cause of action. a. SO if not CAREFUL then it could lead to strict liability and undermine policy issues with negligence.

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CAUSATION A. FACTUAL CAUSATION i. Concurrent (multi-necessary)but for the concurrence. 1. Diff from jointly engageddrag racers EXIN CONCERT. 2. Diff from Successive TortfeasorsSEQUENTIAL (see below). ii. Multi-SufficientREAL substantial factor ruletrain with fire EX. ONLY one that actually caused will pay. iii. Alternative liabilitySummers. Less than 50%. 1. Market Share LiabilityRemember that essential to Sindell that all Ds exposed P to same level of riskby selling fungible products. iv. DAUBERT 1. Trial court plays gatekeeper functionFed.R.Evid. 702if certain evidence would assist trier of fact in making determination, then expert can testify in form of opinion. ***THIS IS KEY especially after SC decision DAUBERT.*** Has become test in fed. CourtKUMHO TIRE has said does not have ONLY to relate to science. 2. Replaced FRYE testgeneral acceptance. Under this experts could testify what was under generally accepted range. 3. ACTUALLY a liberalization of FRYE. DAUBERT is broadersays it has to be scientificREAL science. BUT this does not have to be generally accepted. If something reliable and probative may be proven in court. Daubert says is it has to be science. Gets out of notion of something being knowledge. DAUBERT all about making sure evidence is reliable. SO, according to my expertise and knowledge then X could cause itNOT sufficient. 4. Tension between Skinner/Aldridge v. Falcon/Summers. v. Probability vi. Risk of future harm??? vii. Loss of chanceFalcon. Substantial FactorFALSE use of test. viii. Where Ds neg. destroys proof, burden shifts to D. b. PROXIMATE CAUSEif uncertain, throw it to the jury . . . i. Foreseeability TestRESPONSIBILITYWagon Mound. Not possible but probable. Blythe (freezing pipes). Must be what we would expect to resultbut can just be a way/resultdoes not have to be this way/result (flaming rat or guy hit by third car example). 1. Distinguish between AN accident and THIS accident, however, in terms of proximityMay be NO liability when foreseeable P suffers an unforeseen TYPE of harm. BUT still liability to a foreseeable P for an unforeseen EXTENT of harm. POLEMIS v. WAGONMOUND. Palsgraf test from Duty. 2. Kinsmanliability can extend far out so long as caused by original act. Same general sort of harm. Outer bounds of liability before get into POLEMIS. ii. DIRECTNESS testPolemis iii. Harm within the scope of the risk test. iv. Consider intervening forces. REMEMBER: If D2s conduct not foreseeable from D1s perspective then supervening cause!!! 1. Independent intervening forces (supervening). a. Moral culpabilitymay exonerate D. i. Pollard (dynamite). ii. But Cf. Clark (explosive in graveyard). b. Factualdynamite intrinsically dangerous and carries danger forward despite intervening forces. May NOT exonerate D. c. Acts of Godnot prevent liability where still led to result threatened by Ds original negligence.

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3. 4.

Dependent forcescop shoots escaped bull and bullet hits other guy. a. Mednegligent Tx deemed foreseeable BUT reckless med misconduct NOT. b. CRUCIALresponse must be NORMAL. Unforeseeable results by foreseeable forcessome say liable; some not. Unforeseeable results by unforeseeable forcesNO liability.

v. Eggshell Skulltake him as you find himnot minks eating babies but yes DaVinci in trunk.

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DEFENSES A. CONTRIBUTORY NEGLIGENCE i. Mirror of Ps casestill must show causation even if breach shown. ii. LAST CLEAR CHANCEno longer in vogue. b. COMPARATIVE FAULTmust still show Ps actions CAUSED it. i. Standards v. Rulespolicy concern about what goes to jury in these cases apportioning responsibility. Hunt (snowblower) shows the number often random. ii. PURE: Ps neg never complete bar to recovery. iii. MODIFIED: If Ps neg 50% (with some) or greater, complete bar. JOINT AND SEVERAL LIABILITYREMEMBER if as practical matter cannot sort it out, then any one D may be fully liable for all damages. 1. Concurrent. 2. In Concert. a. May be pragmatic failure of allocation so back to common law 50/50. b. CONTRIBUTION: when party has to pay more than equitable share of J. i. PRO RATA50/50D could recover from other Ds anything over its share. ii. Proportionalcomp fault distribution. 3. SETTLEMENT: D only liable for equitable share via Uniform Comp. Fault Act. P undercompensated to some extent but choose to bargain for settle. a. Consent Decreecan hold party in contempt for not del. b. Mary Carter Agreeparties work in collusion. 4. Bencivenga (club)empty seathow deal with it? 1. Just b/c one tortfeasor can still commit tort by another means that does not excuse the joint and severally liable tortfeasor. 2. SEQUENTIAL then only first neg. BUT Ravo (docs with birth defects case)may be practically indivisible. a. Each responsible for, say, 60%. b. Each respons. for his share. c. Hack it up so insolvent Ds share split between P and other Ds on % of neg. Eg. 35/75ths where Ds are 75% neg in aggregate and THIS D is 35% neg. ii. Ps failure to mitigate (Spierseatbelt) can make damage award less. SUPERVENING Cause (P or someone else) i. Must not be foreseeable. ii. Watsondropping match in gasoline (pyro) not foreseeable. iii. Think about diff between dynamite case where kid gathered it up AND explosive case (or fire squib case) where the original actor launched it on its course and no one intervened. ASSUMPTION OF RISKBUT was the negligence claimed OVER and ABOVE what would be assumed??? i. EXRESSall elements of contract law at play. Jones (skydiving). 1. REMEMBER ski resort example and policy considerationsdo we build it into the sticker price or allow these waivers? Dalury (ski resort case). ii. IMPLIEDBUT EMERGENCY doctrine!!! 1. Primaryno breach of duty (proxy for express). Knight v. Jewett (touch football) and how Smollett should have been reasoned. P takes on risk such that D not responsible for preventing accident UNLESS Ds behavior over and above.

c.

d.

e.

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NO negligence will be found if AOR holdsprocedurally speaking then it can go off on duty. b. Complete Bar to recovery. Secondaryjust subset of CN. a. Do BPL for these. i. Reasonable risk consciously taken? YES . . . 1. Reasonable conduct? YES, then full recovery. 2. Unreasonable conduct? YES, then comp. fault. a. If Smollettcomplete bar to recovery. ii. Unreasonable risk consciously taken? YEScomp. fault.

a.

f.

INDEMNITYNOT a defense against Pjust a way to get $$$ from indemnifier.

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DAMAGES a. Corrective Justice b. Promote DeterrenceOPTIMAL deterrencewatch for OVER deterrence. c. Compensation i. Eggshell Skull Rule seems to go to this. Smith v. Leech Brain & Co. Ltd and see Vosburg v. Putney (shin kicking). ii. Goes beyond foreseeable and permits what is outside. iii. Also a BPL analysis in these cases. 1. Do we want Gates in tank or rest of us to be careful? iv. Eggshell Psyche via Mustapha v. Culligan (fly in water case) 1. ONLY if ORDINARY person would ALSO have suffered some ED. 2. Maybe other doctrinal policies should takeover hereDuty to ___ in virtue of ___ harmwhat EXTENT of damages is within Ds duty? Damages can fold back to DUTY as well!

COMPENSATORY SURVIVAL DECEDENTS death survives beyond death personal representatives can sue for estate. For lingering time of decedent. WRONGFUL DEATH BENEFICIARIESNEXT OF KIN CAN RECOVER FOR INJURIES a. b. c. Pecuniary/economic/special Estate can recover lost future earningsIS measured even though casebook says otherwise. Med expenses up till death. If Will, goes to designees. If no will depends on statute. Lost future wages. Funeral expenses. Lost services. Beneficiaries bring cause even if Will stating otherwise. Nonpecuniary/noneconomic/general Post impact; pre-death pain and suffering. NELSONpre-impact suffering.

Bereavement; anguish; emotional distress; as well as loss of society, companionship, support, etc.LOSS of CONSORTIUM.

Remittiturjudge thinks sum unreasonableP can accept lower amount and no new trial. Additursame but for D. ECONOMIC and NONECONOMIC v. Noneconomic often largercan be fine in light of facts Kenton v. Hyatt. vi. Idea is corrective justicetake away from D what gained and give back to P what would make him whole. vii. Discrete injurieslose a thumb v. Permanent injurieslose a leg. 1. DUTY to MITIGATE see Walters v. Wal-Mart. a. P has duty to mitigate damages. Must take reasonable steps to mitigate damages. b. Must be REASONABLE standardcan depend on patients. c. HARD QUESTION: whose values to we impose on whom??? BIFURCATE or TRIFURCATEtrial for liability and damages (sometimes comp and pun) Deference to jury unless shocks to conscience or passion, prejudice or other improper motive. Aldrich v. Palmer. Collateral Source Rule: D cant present evidence that P gets insur. Money. May be elim. for malpractice suits. a. Subrogation: Insurance Co. in shoes of P and gets reimbursed amount based on damages. i. Can be difficult if future med bills accumulate b/c damage award to P often in lump sum. Discount to present valuemust account for fact that Ps $ will be invested and thus Ps future losses will not be so greatSO discount to PRESENT VALUE a. PURErate of interest for this determinationno inflation. ii. INFLATION-ADUSTED INTEREST

d. e. f.

d.

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NOMINALwhen D liable but no compensatory damages flowed from incident. a. P gets single recovery. PUNITIVE (exemplary or vindictive) a. Wanton disregardsection 500 of Restatement. When reasonable person would know what this guy will do is badtortfeasor should know but does not. See Dissent in National By-Products Inc. v. Searcy House Moving Co. b. Reckless IndifferenceD aware of tort and does it anyway. Mathias v. Accor Economy Lodging, Inc. Cf. consciously careless via Vaughn v. Menlove. c. Clear and convincing: seems to be bar P must reach to disprove damages. d. REASONS for PUNITIVE: deter where need higher amount (littering); stop private reprisal (duals); GOLDEN HANDCUFFSpunish rich D for scorched earth litigation or unreasonable measures in business. e. Respondeat Superior: Walters v. Wal-MartWalmart liable for employees neg. f. SC steps in via BMW of NA, Inc, v. Gore: a. Degree of reprehensibility b. Disparity or proportion between harm or pot. harm resulting from Ds act and the amount of damage awarded. Cannot be more than single digit ratio. Via State Farm v. Campbell. c. Diff between this remedy and civil or crim penalties authorized to punish D in comp cases. VICARIOUS LIABILITY: Imputed (Vicarious) v. Independent (Direct)employer does it directly. Respondeat Superior. i. Numerous factors determine if EMPLOYER really has control over AGENT. ii. SCOPE OF EMPLOYMENT (like Scope of Risk test) v. FROLIC of his OWN (as opp. to detour) 1. Childres shows characterization testfairly regarded as risks of businessincidental to employment. Employer should figure way to AVOID costs. THINKdo we want employees doing this sort of thing . . . 1. AGENCY Test Restatement 7.07CONTROL is key i. Type of work of agent ii. Control of agent over work iii. Skill required in agents occupation iv. Did agent supply tools v. Length of time agent works for principal vi. Part of reg business vii. Employment rel? viii. How much control princ may have over agents work? 1. If ind. CONTRACTOR then may not impute unless AGENCY. a. NON-DELEGABLEdoc and hospitalcant punt duty onto doc. i. Pts dont have much CONTROL to go elsewhere. Unless charitable immunity. ii. Cant hire ind. Contractor to avoid liability. iii. Duty to maintain public premises. b. APPARENT AUTHORITYestoppelprohibit employers from disclaiming relationshipwords or conduct make people think person is AGENT of employer. i. Employer manifests that ind contractor has authority to act for principal. ii. PRINCIPAL must do the acts to make people believe.

e.

e.

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IIEDLORD HOFFMANTalk about genus rather than speciescan play around with level of Generality of HARM and RISK. a. IntentIntentional (can be Assault or Battery)can be parasitic on these. b. Causation. c. Severe Distress d. ActExtreme and Outrageous (restate 46)beyond bounds of civility. i. DICKENS (hippie)can think about conduct outside juris but not take into account for damages. Huh? e. We look for PATTERN/AGGREGATION. Remember this is the hard stuff to fill in the elements. i. Littlefield (racist)guy does something to push it over the line. EMPLOYERS i. Employer needs some control to get job donedont want to micromanage BUT may need to in some cases. Stockettnot solely covered by other torts cuz emotional tranquility, too. 164 Mulberry Streetreckless indifference. CONDUCT i. Direct Contact ii. ZODif this jurisdiction then if impact may get recovery even if no phys. injuries. iii. DillonStandards Testcan be expensive and uncertain. Worries about form over substance. BUT maybe person actually injured must actually be injured and have valid neg. claim against D. 1. ThingRules Testcan get cruel results . . . a. Close relationship to injured. b. Phys proximity and contemporaneous observation. c. Suffer extraordinary emotional distress. iv. POSNERhigher level of generality possible to get just result? Fire Alarm Ex. not harm within risk cuz too many factors sometimes. v. BYSTANDERDILLON can allow this or ZOD if CORPSE or RELATIVE. 1. Can be Slippery slope argumentsub and proc confluenceoverdeterrence can result. Negligence in creating risk. Tangible phys manifestation (usually) AND severe in most states.

f.

2.

g. NIED a.

b. c. 3.

STRICT LIABILITYCategorization LevelLiability w/out faultwhen shift SL from victim to D? a. Matter of law to decide if activity IS SL! b. Natural v. Unnatural = must be appropriate use of land to area. Cost-Benefit BPL. Restatement 520. i. SL gets rid of breach but still need prox causecould go off on duty, too. c. FACTOR TEST of 520: i. High risk of harm to person, property. ii. Likely harm will be great. iii. Reasonable care does no good. iv. Common usage? v. Appropriate location? vi. Value to comm. v. dangerous attributes? d. POLICY i. Reciprocal v. Non-Reciprocal ii. Negligent Conduct v. Conditional Fault (Keeton) iii. Does activity produce greatly disproportionate risk in relation to community? iv. Want to price goods at right level so reflect price comm. has to pay to obtain good or service so D has incentive to act safelySKI RESORT. v. SL may deter WHOLE industry or make them THINK. Activity-level EFFECTS.

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vi. Greater Accuracyimpose when % accuracy increases with SL. vii. Admin savings and higher level of GENERALITY. viii. Add research incentives. ix. Effective loss distribution. AOR IS a Defense.

PRODUCTS LIABILITY a. Restate 402Aany seller of product in defective condition unreasonably dangerous to user is strictly liable in tort for personal injury or prop damage resulting from defective condition. i. NOW, just defective instead of unreasonably dangerous. ii. Categories: manufacturing defects; design defects; warnings defects. b. RESTATEMENT THIRDDesign, Manufacturing, Warnings c. Can recover against ALL involved in getting product to customer unless superseding . . . d. Unsettled whether danger invites rescue would allow Samaritan to recover if helping out. e. MANUFACTURING i. Man. in best position to shoulder costs. ii. Hard to prove or pinpoint so P only needs show deviated from intended design. iii. DEFENSE 1. Can say P should have known for R/U test. 2. AOR can be raised as defense. DESIGNoccurs in entire product lineremember, if something like skin cream, cant just be one in a million. i. Risk Benefit/Risk Utility TEST (Rest. 3rd) (BPL): Do risks outweigh benefits? Basically negligence test with or w/out foreseeability. 1. WADE Factors a. Utility to user and public. b. Safetylikelihood of injury and seriousness of injury (BPL). c. RAD. d. Manufact. Inability to make safer w/out losing utility/price. e. Users ability to avoid. f. Users anticipated awarenesswarnings, etc. g. Loss spreading feasibility for manufacturer. 2. Not defective unless REASONABLE alt., not just some conceivable safety feature to be added. 3. THINK: should manufacturer or consumer bear cost of safetydesign into product or let consumers handle itBPL again. Consider AGGREGATE probability of accidentsmay indicate for or against product. 4. PROBLEMS: no jury expertise; hard to determine which part of product caused injuryshould product be sold at all? ii. Consumer Expectations (less favored): not as safe as consumers expectdefective. 1. Any hidden dangers? iii. POLICY 1. Manufacturer or Consumer? Manuf. Spreads costs better. 2. BUT Consumer because we worry about overdeterrence. 3. BUT also FAULT concern. 4. Do BPL!!! 5. Learned Intermediary Ruleshould be the one in best position to dispense warnings. 6. Direct to consumer erodes LI b/c now we are getting info. directly.

f.

iv. SOULE 1. If satisfy consumer exp, no need for expert testimony.

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2. 3. 4. 5. g.

Threshold Q for judges just like res ipsa. Ex postcan always look bad afterwards. D wants ex ante. REMEMBER the car just blows up type caseslike res ipsa, perhaps.

WARNING DEFECTSno need if OPEN and OBVIOUS. i. Dutyknowledge of harm or knowabilityrepeat players think obvious v. latent not a bright line but is actually subjective . . . ii. BREACHadequacyworry about warnings clutter. iii. CAUSATIONheeding presumptiondid consumer HEED warning or would he have heeded warning? iv. Once P has warning then unavoidable risk (or has choice) and no PL. v. Duty to warn ONLY for LATENT dangersnot obvious to consumers. Do NOT over-warn and hide latent dangers. 1. ADEQUACY OF WARNING a. Jury find in favor liability where risks still low or phrasing not really convey nature of risk. b. P must prove causation. Would it even have made a difference??? 2. WARNING/DESIGN Defect Connection a. If reasonable product design exists, warning does not rid liability. DEFENSE i. Product misusebut must be GROSScombine case. If product defectively designed, however, misuse (like doing the rocket jumps on the trampoline) are precisely the thing the defect should prevent and so misuse defense will probably fail. ii. Comparative fault may allow partial liability. iii. CN may offer FULL exoneration for D but, gain, must be GROSS. iv. If dealer totally KNEW of dangers and did nothing to warn customer then may be defense for manufacturer AGAINST NEGLIGENCE. v. DEALER has no reason to inspect if no reason to know danger exists. vi. REMEMBERstill need CAUSATION!!!

h.

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