Duty

No Duty unless: o Special Relationship Immediate Family Members Employer/Employee Common Carrier/Passenger Innkeeper/Guest Possessors of Land Custody of person who cant protect themselves Person is deprived on normal opportunities of self-protection rd o Control 3 Party Hospitals patients against other patients Doctor patient if conduct would potentially hurt others (driving) Right, Ability, Knowledge Tarasoff v. Regents California: Factors in determining danger: 1. Foreseeability 2. Future Harm Prevention 3. Moral Blameworthiness 4. Burden (doctor & society as a whole) 5. Connection 6. Certainty of Injury 7. Insurance Coverage o Contractual Relationship Who was the contract between? Strauss v. Belle Realty: Court can take a position to limit/disallow liability for corporations/individuals who ARE negligence in order to control the scope of liability if the entity would be exposed to overwhelming and uncontrollable liability from which they could not recover Foreseeable Plaintiff Member of limited class? Public Police Reason Limit Floodgate Litigation o Social Ventures Farwell v. Keaton: Not only does a common undertaking impose a duty but also if you attempt to aid someone and take charge/control of the situation, you are regarded as voluntarily having assumed responsibility for injured person o Negligent Entrustment Restatement: one who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely b/c of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should reasonably expect to share in or be endangered by its use, is subject ot liability for physical harm resulting to them. (in this case, there was negligence and jury should have had opportunity o pass judgment) o Social Host Liability Dram Shop Act Reynolds v. Hicks: PP call where enjoyment of social hosts is more important than rd imposing duty to protect 3 parties NOT TRUE FOR COMMERCIAL VENDORS o Foreseeability of Plaintiff Always owe a duty of care to foreseeable P Unforeseeable P? Majority = No Duty o Zone of Danger

Palsgraff v. Long Island RR: Was the person in or outside the zone of danger? No duty owed to ppl outside of zone of danger b/c the harm was not foreseeable as a result. Minority = Everyone is a foreseeable P Duty of Disclosure Accurate & Complete Foreseeability of BI from non-disclosure Either Full or None at all Randi v. Muroc Joint Unified School District: Restatement Negligent conduct can include giving false information to another if physical harm is caused by action taken in rd reasonable reliance upon such information where such harm results to 3 persons as the actor should reasonable expect to occur Vicarious Liability Respondeat Superior employer can be liable for torts of employees committed w/in scope of employment Scope of Employment Factors Question of Fact (Birkner Test) 1. Conduct of the general kind employee was hired to do 2. Conduct occurs w/in time/scope of employment 3. Serving employers interest? Independent Contractor/Agent If a person acts as an agent representing a principal, principal can be held liable: (Doctrine of Apparent Authority) Question of Fact 1. Representation rd 2. Reliance by 3 Party on Representation 3. Change in position based on reliance

Standard of Care
For negligence you must show that the D owed a duty to the P, they failed to meet the standard of care defined by that duty and plaintiffs damages were both an actual and proximate cause of that breach the duty owed in most situations is to act as a reasonable person would under similar circumstances D only bound to use care commensurate w/ the hazard involved. Risk as reasonably perceived defines the duty. Reasonable Person o Objective Standard Do not assign Ds traits, personality, IQ or mental handicap Intoxication NOT a standard to apply Physical Characteristics OK Blind Standard of Reasonable Blind Person Foreseeable Risk?

The majority rule, as discussed by Judge Cardozo in the Palsgraff case is that a duty is owed to foreseeable plaintiffs to prevent a foreseeable harm against them o o o Balance foreseeability & feasibility Foreseeability is essential for negligence Changes in the area can be foreseeable Hand Formula Determines whether a reasonable person would have realized the risk involved but would not have changed his conduct

No Change = No Negligence B<PL Apply even if the accident was foreseeable

If we applied the Hand formula to help us establish breach, we would need to determine whether Ds burden was less than the probability of the harm to P times the magnitude of the loss or injury that P incurred. Because of the established custom, the burden is likely minimal as other companies are already doing it. However, looking at the probability of a person being injured and the magnitude of harm that person would suffer is arguably great as evidenced by the facts here. Accordingly, D likely breached their duty. Circumstances o Cant have strict rule Child Standard o Similar child of like age, intelligence, and experience o Subjective Test o Adult Activity = Adult Standard Professionals

The standard for doctors varys depending on the jurisdiction Geographic Location Majority = Same/Similar Community Comparison Minority = National Standard o Level of Specialty/Type of Equipment available o Standard NOT lowered for beginners o States v. Lourdes Hospital: expert testimony can be used to bridge the knowledge gap between doctors and jury to help in decision regarding negligence or infer first element of RIL case. Common Carriers & Innkeepers o Duty only owed to passengers & guests o Highest Standard of Care Rejected some states still use it Andrews v. United Airlines: utmost standard, warning wasnt enough question for the jury Reasonable person standard used Perceivable Risk? Special Relationship of Dependence? Industry Custom o Can use as evidence test is still on how the reasonable person would act. Owners/Occupiers of Land o What caused the injury? Activity? Ordinary negligence reasonable person standard applies Status irrelevant Dangerous Condition on Land? Does Status Apply in Jurisdiction? o Trespasser Artificial Serious Risk of Injury O/O KNOWS 1. Undiscovered Trespasser o O/O not liable for injuries 2. Trespassing Children (Factors) o

o o o o

Know/Should know children are likely to trespass Must exercise reasonable care to make safe Attractive Nuisance

Licensee Dangerous Condition O/O is AWARE of Social Guests Duty to warn/make sure artificial/natural conditions o Invitee The duty owed to invitees is the highest of duties for conditions on the land and occupants owe them a duty to inspect for possible dangers as well as warn of concealed dangers, natural and artificial Dangerous Condition O/O Does or Should know of Imposes reasonable care standard (foreseeability taken into account) On land for O/Os purpose Invitee only for those invited purposes and limited to invited areas of the land.

**For distinction between invitee & licensee look at INTENTION of host. Material benefit received is based on INTENTION and not whether or not it was actually received** Status Does Not Apply o Some states got rid of classifications most states have retained them o Reasonable care standard of landowner Factors (Heins Test): 1. Foreseeability o Different Tests to Determine Foreseeability 2. Purpose of Visit 3. Time, Manner, Circumstance of Visit 4. Use of Property as Extended/Invited by O/O 5. Reasonableness of Inspection 6. Opportunity & Ease of Repair/Warning 7. Burden on Landowner (inconvenience o Open and Obvious Danger Has to be VERY OBVIOUS The danger is its OWN warning Landlord/Tenant Relationship o LL must act as a reasonable person under all of the circumstances Likelihood of injury to others Probable seriousness of such injuries Burden of reducing or availing the risk Business Owners/Criminal Conduct o Posecai v. Wal Mart: Landowners do not have a duty to protect invitees from criminal acts of third persons in some situations. Business owners have a duty to take reasonable precautions to protect their customers from criminal acts if they are reasonably foreseeable o Determining Foreseeability: 1. Specific Harm Rule Landowner owes a duty to protect customers from criminal acts only when he is aware of the specific imminent harm about to occur

Similar Incidents Test P can establish foreseeability by presenting evidence of similar crimes on or near the property 3. Totality of Circumstances (most widely used) Takes into account: similar incidents, nature, condition and location of the land, level of crime in surrounding area, any other relevant factual circumstances 4. Balancing Test Court weighs the foreseeability and gravity of the harm against the burden imposed on business to protect its customers from that harm Statutory Standard of Care

2.

In order to establish negligence per se in regards to a violation of a statute we must determine whether or not the statute was meant to protect the class or group of people that P belonged to and whether the statutes purpose was to protect against the type of harm that occurred. Depending on the jurisdiction, Ds ability to defend themselves against the violation will either help them balance the scales of justice evenly or in there favor, of which their success in the case will result further on the jurisdiction they are in. Martin v. Herzog: Ps contributed negligence on top of Ds negligence D was not liable, jury does not have leeway to evaluate negligence of violating a statute. o Replaces CL standard (reasonable person) o If statute CAN apply, it WILL apply dont bother w/ CL standard o Requirements of using statute Statutory Purpose Doctrine 1. P w/in protected class of statute 2. Statute must be designed to prevent THIS TYPE OF HARM o If EITHER above fails = use reasonable person standard o Negligent Per Se Conduct (not causation/damages this still needs to be proven) Presumption of Negligence o Exceptions 1. Compliance is MORE Dangerous 2. Impossibility Blind Person Governmental Immunity o State & Federal Governments are immune from tort liability o General rule is that there is no tort duty for failure to provide police protection Cuffy Factors Exception 1. Assumption of Duty through promises or action of an that they will do something 2. Knowledge that harm could happen 3. Direct Contact w/ injured party 4. Justifiable Reliance injured party must have the reliance o Federal Tort Claims Act Prohibits Actions for Intentional Torts/Strict Liability/Discretionary Acts Discretionary Act o Planning decisions o Must involve a policy consideration o Negligence doesnt matter Ministerial Act o Operational level o MUST BE A DUTY DIRECTLY OWED TO THE INJURED PERSON MUST BE MORE THAN DUTY OWED TO PUBLIC IN GENERAL o

Requires cases to be tried at federal court but subject to state law where accident occurred Determining whether or not to do something = discretional, no liability Once something is determined and failure to follow through = ministerial, liability Government Studies o Friedman v. State of New York: GOVT IS IMMUNE FROM LIABILITY FOR MAKING DISCRETIONARY DECISIONS. HOWEVER, GOVT DOES HAVE A DUTY TO MAKE ROADS SAFE TO PUBLIC, AND IF THEY DEEM A CERTAIN IMPROVEMENT NECESSARY FOR ENSURING THAT SAFEY, AND THEY SAID THEY SHOULD UNDERTAKE TRAFFIC PLAN, THEY MUST TAKE STEPS TO DO THE PROJECT IN A REASONABLE TIME OR MANNER. IF THERE IS A DISCRETIONARY CHOICE THAT HALTS THE PROJECT, THATS OK, BUT DELAY FOR NO REASON IS NEGLIGENCE o Must be wholly inadequate to rebut Cope v. Scott: Two step test that the court uses to determine whether an action is exempt from suit under the discretionary function exemption 1. Is there a federal statute or regulation or policy specifically prescribing a course of action for the employee to follow? 2. If so, then an employee has no choice. The only question to ask is if the employee followed the directive if so, exempt, if not opens the government up to suit.

GOVERNMENTAL DECISIONS THAT INVOLVE THE EXERCISE OF POLITICAL, SOCIAL, OR ECONOMIC JUDGMENT ARE EXEMPT FROM SUIT UNDER THE FTCA. (USE FLY ON WALL TEST TO THINK ABOUT WHAT OFFICIALS WERE TALKING ABOUT WHEN MAKING A PARTICULAR DECISION TO DO OR NOT DO SOMETHING).

Breach
Breach of duty occurs when the actors conduct did not comply w/ the required standard of care b/c his conduct exposed others to an unreasonable risk of harm Breach = Negligent Conduct X,Y,Z did NOT meet the standard of care Hand Formula o Determine Standard of Care & Breach Industry Custom o Not dispositive o Determine Standard of Care & Breach o Relevance = its purpose must be to avoid the type of harm which actually occurred. o What usually is done may be evidence of what ought to be done but what ought to be done is determined by reasonable standard. Res Ipsa Loquitur

For a case of res ipsa loquitur, the plaintiff must show that more likely than not, negligence caused her injury and more likely than not the instrumentality was under the control of the defendant and that the plaintiff themselves did not contribute to the fault. Traditionally, courts would not allow res ipsa loquitur in cases where multiple defendants may be liable as this creates issues with the exclusiveness of the control in a minority of states and generally in the medical context, this reasoning has been allowed such as in the case of Ybarra o o o o P CANT have direct proof Burden shifts to D to rebut presumption D has better access to evidence concerning the cause of the injury ONLY USED where reasonable persons could NOT disagree that there is at least 51% chance that D is liable

o Notice o Constructive Notice Defect must be visible/apparent Must exist for sufficient length of time to give employer ability to remedy it o Reasonable Inference v. Speculation Negri v. Stop and Shop: sufficient circumstantial evidence of condition by broken jar. Gordon v. American Museum of Natural History: P did not show evidence of paper be4 accident nor could evidence be presented to show how long it had been there

Majority = Used as inference of negligence, jury can still determine to accept it or reject it P can start w/ RIL but still needs to be prepared to persuade jury of negligence if D is able to present something in opposition of presumption. Elements 1. Doesnt happen w/o negligence o McDougald v. Perry: Can use common experience/knowledge regarding a spare tire escaping from cradle as type of harm that wouldnt occur w/o negligence reasonable inference o D tries to offer alternate possibilities o P can use evidence and witness testimony to show an event usually does not occur in the absence of negligence (Restatement) especially impt. In medical malpractice Ybarra v. Spangard: If unexplained injury occurs to patient while in surgery to part of body NOT being operated on, ALL doctors and nurses involved in the procedure can be liable 2. D is probably negligent b/c D has exclusive control of instrumentality that caused the injury o D tried to show that he did not have exclusive control 3. P is free from contributory negligence P doesnt need to eliminate ALL other potential causes must show MORE LIKELY THAN NOT

Causation
There is a particular issue of causation in this case because it is unclear which defendants negligence was the actual cause of the plaintiffs harm. To remedy this, the plaintiff could invoke the doctrine of Alternative Liability if she could show that both defendants breached the standard of care and the court would then shift the burden of proving causation to the defendants. The substantial factor test is useful in case in which damage has multiple causes, including but not limited to cases with multiple Tortfeasors in which it may be impossible to say for certain that any INDIVIDUAL defendants conduct was a but-for cause of the harm, even though it can be shown that the defendants, in the aggregate, caused the harm Ds negligent conduct must first be the cause in fact of Ps injuries Question of Fact o Actual Cause Did Ds conduct cause the injury, two tests to determine (Cause-In-Fact) 1. But-For Test - But-for Ds conduct, the damage would not have occurred 2. Substantial Factor Simultaneous Causes (2 negligent actions caused injury) o Could also be used to determine proximate cause by some courts o Can either D get off on but for test?

Either ALONE would have done the damage just dont know who use this test to say that EACH was a substantial factor and so EACH are actual causes. o Zuchowicz v. United States: P does not need to establish direct evidence that her harm was caused by Ds negligence o Substantial Factor Requirement 1. Ds negligence was a but for cause of the injury 2. The negligence was causally linked to the injury 3. The Ds negligence was proximate to the injury Concurrent Tortfeasors Used when it is not possible to determine which of multiple actors who both acted negligently caused injury to an innocent P Burden is shifted to Ds to show they did not cause the injury 1. Jointly Engaged Tortfeasors Several Ds jointly engage in negligent conduct, each is liable even though only one actually caused the injury DIFFERENT FROM WHEN TWO TORTFEASORS HELPED CAUSE THE INJURY HERE ONLY ONE DID BUT WE DONT KNOW WHO DID IT BOTH ARE ACTUAL CAUSES Alternative Liability Small number of wrongdoers all breached duty Likelihood that ANY of them did it is pretty high so its not unfair to force them to exonerate themselves. 2. Successive Tortfeasors Successive acts of INDEPENDENT Tortfeasors produce harm they must try to disprove their responsibility. 3. Market Share Liability Specific manufacturer cant be identified, P is allowed to recover from them all No liability if manufacturer can show it did not market the product for that particular use Guilty even if the manufacturer appears to most likely not have caused that particular Ps injury LIABILITY IS SEVERAL ONLY 4. Loss of Chance

There is an issue of causation here as it appears that the P would have had the same result regardless of the doctors mistake. Without knowing for sure the Ps chance of survival both before and after the doctors negligence, depending on the jurisdiction, Ps chance of invoking the doctrine of loss of chance will vary and depend on whether or now her chance was greater or less than 50%. Medical cases some courts allow for loss of recovery if changes are less than 50% P must prove to a reasonable degree of medical probability that the doctors negligence caused the loss of chance by preponderance of the evidence. Not all courts allow it and some require the probability of a better result to be greater than 50% EMOTIONAL DISTRESS DAMAGES CAN BE AWARDED IF PHYSICAL INJURY IS PRESENT

If more than one possible cause of harm exists and D is liable for only one of them, P must establish w/ reasonable certainty that the cause of injury was the one which D was liable Stubbs v. City of Rochester: Court acknowledges that it would be impossible for P to eliminate all other possible causes of disease through evidence of Ps habits, home surroundings, method of living and medical testimony all things indicated that illness was caused by drinking contaminated water. Can use circumstantial evidence to get it to a jury A reasonable inference of causation can be made when Ds conduct is negligent as it creates the particular risk of harm sufferance by the victim it increased the chances of a particular type of event occurring and that event actually did occur = strong causal link. o Proximate Cause To establish whether Ds negligence was the proximate cause of Ps injuries, we must determine whether or not it was foreseeable that Ds act would cause Ps injuries. If P has shown actual cause, still needs to prove proximate cause Question of Law If the injury could be speculated to still have occurred even w/o Ds actions or negligence, then D was not the but-for cause Case about pool that had duty to put up sign or have lifeguard. They breached this duty. But when person drowns, the pool people cant say it cant be determined for certain if person would have been saved if sign or lifeguard available. However, b/c they did not have lifeguard, they eliminated chance of witness to determine this so they are still negligent. (There is negligence per se b/c they breached duty). BUT QUESTION IS WHETHER THE FAILURE TO COMPLETE THIS DUTY WAS THE CAUSE OF DEATH.

Two causes: 1) A causes B if without A, B doesnt happen. (Buf it test) a. If guy doesnt jump in pool, does he drown? NO b. So, in that sense, he caused the death. c. May death have been prevented if life or sign? Maybe i. If we think more likely than not, then liability is present ii. If we could prove guy had suffered heart attack in pool, and drowned a millisecond, then we could prove that although pool negligent, the breach did not cause the death iii. Was it negligent to get into pool? Maybe or maybe not, but they did help their own deaths b/c if they didnt get in pool they wouldnt have caused death. d. Question isnt whether plaintiff caused the death. BUTwhat was CAUSE of death. Causation: Ask what would have been if world different. We look at probability and inferences. Courts make distinctions b/t situations. In some cases, inferences are really strong and rooted in everyday experience, and in other cases they are weaker and harder to make. We do them through rules, or statistical evidence, or saying you cant use statistical evidence b/c we dont trust the info. Uses public policy to determine the limits of tort liability and who should bear the loss for unexpected injuries or for expected injuries caused in unexpected ways Leading test for PC focuses on whether the D should have reasonably foreseen, as a risk of her conduct, the general consequences or type of harm suffered by the P INJURY WAS SO UNBELIEVABLY UNFORESEEABLE THAT IT IS UNFAIR TO HOLD THE D LIABLE Direct Cause/Direct Result

Ds negligent act is directly linked to harm through uninterrupted chain of events In Direct cause cases 99% of the time its a foreseeable result Opposing Views: 1. D is PC regardless of the remoteness of the injury When D is negligent, liable if some damage is foreseeable but not the type/extent of damage that actually occurred 2. D is only PC if result if foreseeable Actual type of damage/result must be foreseeable (rejects the first) 3. Scope of Risk: D must cause an unreasonable risk of harm & the type of harm the risk entails has to be foreseeable. If the damages caused is w/in the scope of the risk created, then there is liability. Egg Shell Plaintiff 1. Take the P as you find them Indirect Cause Act is separated from injury by intervening act/event that helps cause the injury rd Can be from 3 party or God

Defendants are likely to argue that they should not be liable for the resulting injuries as the type of negligence experienced at the hospital was a superceding cause that breaks the chain of causation and cuts off their liability. However, this is unlikely to be upheld by the court as a doctors negligence and malpractice is normally seen as being foreseeable Intervening Cause later arriving cause that is to be anticipated does not exclude liability, the intervening act was foreseeable Superseding Cause later arriving cause that is not to be anticipated and DOES exclude liability (intentional tort/crime) Negligent person can be removed from liability when: 1. Harm intentionally caused by a third person 2. Not w/in the scope of risk created by Ds conduct o Expert Testimony General Electric v. Joiner: Judge did not allow testimony from experts b/c he believed their evidence was too far removed from circumstances at hand (analytic gap in evidence animal studies w/ mice Daubert Test tests whether the experts rest on a reliable foundation and is relevant to the task at hand. Factors are not an exclusive list: 1. The theory can and has been tested according to scientific method 2. Theory/technique has been subject to review and publication 3. The known rate of error of the technique 4. Whether theory is generally accepted Frye Test requires scientific evidence to be based on techniques generally regarded as reliable in the scientific community Both tests are from federal cases and states can chose to adopt either or develop their own standard. Even with the factors the judge is still the gatekeeper and can determine whether or not the expert witnesses will be admitted. When determining whether expert testimony is admissible, court can analyze the evidence and use the abuse of discretion standard to determine whether or not it supports the findings

Defenses
If we were in a state that adheres to the theory of contributory negligence, b/c P was also negligent, she would be barred from recovery. However, if we were in a state that adheres to the theory of comparative negligence we would need to determine which version of comparative negligence was adhered to, where it was pure or modified and under modified, whether it was the no greater than or equal to 50% rule or the greater than 50% rule. In a state that follows pure comparative negligence, P would be able to recover purely based on the percentage of her negligence. Contributory/Comparative/Assumption of Risk If multiple Ds either act in concert or act entirely separately/independently and cause a SINGLE INDIVISIBLE INJURY usually Joint and Severally Liable Contributory Negligence o Conduct by the P that contributes (as a legal cause) to the harm she suffered. o Ps negligence is determined the same way as ordinary negligence o Ps conduct is ALWAYS called contributory, even when used in other defenses o COMPLETE BAR TO RECOVERY o If Negligence Theory: ANY contributory negligence (knowing/unknowing) by P means no recovery at all o If Strict Liability Theory: Knowing Contributory Negligence is a Complete Defense Unknowing Contributory Negligence is NO defense o Exceptions 1. Ds acts were reckless/intentional, even if P was negligent. 2. Last Clear Chance Doctrine Only applied in Contributory Negligence states (can still use these facts in comparative negligence states though) P is forgiven his earlier contributory negligence is D had a chance to avoid the accident and failed to do so softened the harshness of contributory negligences bar to recovery rule. D must have had actual knowledge of Ps danger in time to avoid harm by the exercise of reasonable care Comparative Negligence o Almost every date uses o If you are suing under either Negligence or Strict Liability theory, apply that states comparative negligence scheme o Lowers recovery for Ps who contributed to their injury by acting negligently 1. Majority = Pure Comparative Negligence o P can recover the % of damaged caused by others regardless of Ps relative negligence % 2. Minority = Partial Comparative Negligence o P can only recover is his negligence was LESS THAN (not equal) then Ds Modified P can recover if his negligence is equal to or less than 50% o If Ds acts were reckless, Ps contributory negligence is relevant but the jury is likely to give a big chunk to P b/c of Ds reckless conduct. o Fritts v. McKinne: Court didnt allow evidence that tells about what guy was doing before being admitted for purposes of figuring out how negligence the doctor was If P didnt properly disclose medical history it would be different o Multiple Defendants 1. Several Liability all are negligent but only liable for their share Not affected if one defendant is insolvent/settles w/ P

Joint and Several Each D owes total amount of liability regardless of their comparative share (minus Ps share) Some states have abolished it for non-economic damages Some states have retained it only for toxic/environmental torts JSL only if D is more than 50% liable more common JSL only if D at least 50% liable JSL unless P has ANY fault if so, then D is severally liable Minority - require Ps negligence to be less than that of ANY Ds if equal or more, P is denied recovery Majority Permit P to recover if his fault is less than the COMBINED negligence of Ds (aggregate) P is usually going to sue whomever it is easier to collect from Contribution Ds can sue each other for contribution, this is where jurys percentages come into play but these %s dont affect Ps. Insolvent Defendant o Doesnt affect the Ps amount Some states say solvent D only owes amount responsible Some reallocate losses after D is found to be insolvent Uniform Comparative Fault Act o Ds jointly and severally liable for their own share ONLY minus Ps liability o Insolvent Defendant Reallocate liability to P & D2 in proportion to their own liability o What is P & D1 Settle? Reduces liability attributed to other Ds by their equitable share % Assumption of Risk o Implied Assumption of Risk Factors 1. P must have knowledge of facts constituting dangerous condition 2. P must know condition is dangerous 3. P must appreciate the nature & extent of danger 4. P must voluntarily expose himself to the danger If proven D is relieved of liability o In Comparative Negligence States no longer a complete bar to recovery P need not be negligent in assuming the risk Primary o P assumes those risks inherent in a particular activity when there is no breach of the standard of care o Not an affirmative defense Secondary o P knowingly encounters a risk created by Ds negligence o Affirmative Defense asserted after P has presented a prima facie negligence case o Reasonable o Unreasonable o Express Assumption of Risk Exculpatory Agreements o R2d EA upheld if they are freely & fairly made between parties in equal bargaining position and there is no social interest w/ which it interferes

2.

Public interest determined by totality of circumstances in any given case against societal expectations o Considerations court can look at to see if clause should be invalid: 1. Person engaged in performing service important to public 2. Business generally though suitable for public regulation 3. Party holds itself willing to perform this service 4. Economic setting of transaction 5. Person has superior bargaining power w/ standard adhesion K and seller is placed in control of buyer Contributory Negligence & Implied Assumption of Risk Need to distinguish between Knowing/Unknowing Knowing P unreasonably voluntarily takes on a known risk discuss defense of contributory negligence and implied assumption of the risk Unknowingly There is contributory negligence because you are not supposed to have done that, but there is no implied assumption of the risk. 1. Defense in Negligence Case 2. No Defense in Strict Liability Case

Strict Liability
To be liable for strict liability, D must owe a duty, be partaking in an abnormally dangerous activity and still have caused the damages for which Ps are alleging. D liable w/o fault. Caution doesnt matter/Negligence doesnt matter DONT SAY NEGLIGENCE 1. Ultra-Hazardous Activities 2. Animals (domestic v. undomesticated) 3. Product Liabilities Contributory Negligence is NOT a defense o UNLESS P knowingly AND unreasonably subjects himself to risk of harm from activity If the activity is so dangerous that no matter how careful you are it is still risky strict liability is appropriate. o Gives incentive for PPL to think twice about whether or not its worth engaging in the risk. Could the type of accident that occurred have been avoided/deterred w/ due care? Negligence Standard

Products Liability
P will sue on either negligence or strict liability theory o Discuss whether P has a case under both a negligence theory and strict liability theory Negligence discuss Ds conduct & any potential negligence defenses Strict Liability discuss element, same as negligence except for standard of care NEVER MENTION DS CONDUCT Defense of contributory negligence & assumption of the risk are all defense available 1. Manufacturing Defect 2. Design Defect A design is required to be reasonably safe in the context of intended uses and foreseeable misuses One who sells any product in a defective condition unreasonably dangerous to the user if it reaches the consumer w/o substantial change from its sale condition Jury Considerations: Does the products design embody excessive preventable danger

Does the risk of danger inherent in the challenged design outweigh the benefits of such design: (Barker Test) o Gravity of danger posed by design o Likelihood of danger o Mechanical Feasibility of a safer alternative o Financial Costs of an improved design o Adverse consequences to the product & consumer if an alternate design were used Unreasonable Dangerous Dangerous to an extent beyond that is contemplated by the ordinary consumer who purchases it w/ ordinary knowledge of its characteristics, common to the community (Some states have dropped this requirement and require only existence of a defect) Reasonable/Ordinary Consumer Expectation Test Product must meet CANT use expert testimony Risk Utility Test Benefits are outweighed by the risk of danger it creates 3. Insufficient Warning To determine the adequacy of a warning, test is whether the benefits of a more detailed warning outweigh the costs in terms of price and in undermining the usefulness of the warning altogether since overly voluminous labels are not effective Misuse by a consumer is not a complete defense for a manufacturer when the misuse or unintended use was reasonably foreseeable. A consumer has no duty to discover/guard against a product defect Defenses Contributory Negligence Contributory negligence (Ps failure to exercise reasonable care to discover the defect) NO DEFENSE HOWEVER When the P discovers the danger and nevertheless precedes unreasonably, comparative fault may be applied. Assumption of Risk Comparative Negligence Almost every state allows in product defect cases when the P fails to take responsible precautions or discovers a defect and assumes the risk.

The Special Case of Toxic Harms

Environmental Liability and the Tort System Problems of identification o Toxics of all sorts (impure water, defective synthetics, etc) often breed disease rather than immediate injury (there are time-lag issues) o Identification, ordinary a routine issue of cause in fact at CL, is costly enterprise that relies on evidence and probability judgments which can be regarded as ill-suited to traditional resolution Problems of boundaries o Claims are potentially unbounded (agent orange and hazardous waste) o Aggregate exposure can be hard to define in advance Extent of harm may be unpredictable Array of disorders is far more wide-ranging o Challenge of unconfined liability intrinsic to many environmental harms o Asbestos and the emerging toxic tort cases claim victims in the thousands Problems of source o Vast array of asbestos producers and insurers, generators, transporters, etc are present-day examples of the singular difficulties in dealing with problems of source of environmental liability o Environmental harm is the consequence of the aggregate risk created by a considerable number

of independently acting enterprises o Environmental harm is collective harm o Traditional but-for tests are in foreign territory o They may emanate from sources that are hard to identify Court refused to treat physical harm as necessity condition to allowing medical monitoring costs o Public health interest in fostering access to medical testing to individuals whose exposure to toxic chemicals creates an enhances risk of disease o Deterrence value makes companies not want to be irresponsible in discharging chemicals o Availability of substantial remedy may mitigate future illnesses and reduce overall cost to responsible parties o Fairness and justice are better served by allowing recovery Criteria for recognizing such claims o He has relative to general population been significantly exposed o Proven hazardous substance o Through the tortuous conduct of the defendant o As a proximate result of exposure, plaintiff has suffered increased risk of contracting disease o The increased risk makes it reasonably necessary for the plaintiff to undergo periodic medical examinations o Monitoring procedures exist that make early detection possible

Negligent Infliction of Emotional Harm

Plaintiff will sue under a claim of negligently inflicted emotional harm as a bystander against the defendant for when he rushed to see his wife in pain. To recover for NEID as a bystander there are splits among how one may qualify. In some jurisdictions, they hold to the zone of risk rule in which P was very near the accident where a close relative was injured, in potential risk of receiving harm and also witnessed the accident, suffered severe emotional distress as a result. In this case P was not in the zone of risk nor did he actually witness the accident of his wife. However, is some jurisdictions a different test is held. It is unclear where P was at the moment of the accident or if he had any direct sensory perception. Both tests to determine ability for P to recover for NEID require that the P actually suffer severe emotional distress and there are no indications that P suffers from such possible symptoms. Portee v. Jafee Test

1) Whether the plaintiff was located near the scene of the accident 2) Whether shock resulted form the direct and contemporaneous sensory observation of the accident as opposed to learning from 3rd parties 3) Whether the plaintiff and the victim were closely related 4) The court says that an additional factor is the severity of the injury it has to be death or serious injury. The risk of an extraordinary reaction to a slight injury does not justify the imposition of liability

Old approach: there must be physical impact (Ward) One approach in trauma cases: duty exists where negligence causes fright from a reasonable fear of immediate personal injury, which fright is adequately demonstrated to have resulted in substantial bodily injury or sickness (Falzone v. Busch (NJ 1965)- car hits husband; P frightened for self; Battala- failure to secure in ski lift chair; Quill- plunging airplane)

near-miss car & airplane crash cases: recovery granted in near-miss car crashes but denied in near-miss airplane crashes a function of length of time of fear? Problem of eggshell psyche? (Lawson) o doomed victims casesfamily may recover for decedents distress before his death in survival actions, depending on length of time victim was in distress Another approach in fear of illness cases: symptomatic requirement (Metro-North Commuter RR Co. v. Buckley (1997)- asbestos exposure; worker cannot recover unless & until he manifests symptoms of disease) Another approach in fear of illness cases: real risk/ serious fear requirement (Potter- toxic waste exposure) or reasonable fear requirement (Williamson- HIV needle case, actual exposure not required) or, in window situations, recovery for distress during time period between event that creates concern and results showing that no injury has occurred

Fear for Others- Negligent Infliction of Emotional Distress

Recovery for NIED permitted for family members at scene (or, in some states, not at scene) of victims physical injury. o New York: zone of danger rule (Tobin, Bovsin) o California: proximity in time and space, close kinship, severe injury (Dillon, Thing) o New Jersey: observation of death or injury at scene of accident (but can arrive at scene after accident), close kinship, severe injury (Portee) o Hawaii/Massachusetts: proximity and time & space less important; in Hawaii duty extends to remoter family members If family member is mistaken as to severity of injury, recovery may be allowed (Barnhill). But if mistaken as to identity of victim, no recovery (Barnes, Sell).

Negligent Interference with Consortium

Originally only husbands could claim for loss of wives consortium; but eventually extended to wives claiming for loss of husbands consortium. Two major questions today: o extension of consortium claims to other relationships? parents may sometimes sue for loss of companionship of children but not vice versa o measure of damages? how to value peoples relationships? Some courts have extended loss of consortium to cover non-physical injuries to spouse.

Exceptional Circumstances
Recovery may be allowed for severe emotional distress absent physical threat in cases involving negligence after a family members death (botched funeral, mishandled corpses, false notice of death). Gammon v. Osteopathic Hospital of Maine, Inc. (Maine 1987), case in which severed leg negligently delivered instead of fathers personal effects, says defendant has duty to prevent emotional harm that could be expected to befall an ordinarily sensitive person

Limits of Duty: Traumatic Events Where No Duty Found

Baby kidnapped from hospital, later returned; hospital has no duty to parents because fails the zone of danger test (Johnson v. Jamaica Hospital (Ct. App. NY 1984)) Also: untimely circumcision case, runaway Alzheimers patient case, incorrect label/overdose caseno duty owed to relatives suing in any of these cases Most states deny recovery for emotional distress caused by property damage, except Hawaii (Rodrigues- flooded home)

P could also have a claim for fear of future harm of getting cancer from his exposure. Some courts have allowed people to recover when a Ds negligence has caused an increased risk for cancer. While jurisdictions vary on the issue, some jurisdictions will allow recovery if the fear is reasonable for increase of cancer while other will only allow recovery if the chance of getting cancer is greater than 50%. Most jurisdictions however limit the recovery of a future harm until that harm actually occurs in order to make sure there is adequate distribution of funds available for Ps who currently have claim of an injury The proximate cause inquiry requires the estate to prove that Ds negligence in spacing the treadmills as it did was a substantial factor or a foreseeable cause of the injury. As the substantial factor test will likely be the easiest for the state to satisfy it should be used. One of the causes of the injury was the spacing of the tables in the atrium by LLS, so it should be considered a substantial factor. This conduct created a risk that a person would be injured while trying to walk through this tight space. D will likely claim that P was negligence and that this should reduce or bar recovery depending on which theory of fault in used in the jurisdiction we are in. D will seek to avoid liability based on the release form signed by the P. To be enforced, a waiver must be clear and free from ambiguity.