Torts Outline 2017
Torts Outline 2017
Torts Outline 2017
Walter v. Walmart Breached duty of care by pharmacist) P suffers serious injury from the
wrongly assigned medication. Walmart has a duty to provide customers of pharmacy reasonable care for
physical well-being. Wal-Mart breached this duty when it did not exercise reasonable care and gave out
the wrong medication. Walmart’s breach caused P’s illness.
- D was the actual and proximate cause of P’s harm
- P does not have to show that Walmart did anything wrong, but has to show that employee (Lovin)
created liability on Walmart
In medical malpractice the standard of care is set by experts. Here, Lovin was expected to act as
a reasonable pharmacist – not a reasonable person – because it is a professional standard
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I. DUTY
Imposed on all people not to place others at foreseeable risk of harm through conduct Duty = matter of
policy
- D engaged in activity that caused harm to P
- It was reasonably foreseeable that harm to P and others would happen if D did not take care
Easy Duty obvious cases unqualified duty of reasonable care owed to the plaintiff
Hard Duty failure to help or protect P from danger that D didn’t create
- Special relationships
- Failure to act (nonfeasance)
Easy Duty
Heaven v. Pender: Unqualified duty to take care not to cause physical harm is owed to another whenever
a person of “ordinary sense” would recognize that careless conduct on his part would create “danger of
injury to person/property of other” reasonable foreseeability
Winterbottom v. Wright: A plaintiff who lacks privity of contract with defendant may not sue the
defendant based on negligence rooted in a contract between defendant and a third party
- Privity Rule contract that you owe a duty to others not to harm them abolished in
Macpherson
Thomas v. Winchester: Mislabeling of poison D’s duty arose out of the nature of his business and
danger to others based on its mismanagement
- Exception to the privity rule in products that are inherently dangerous
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MacPherson v. Buick Motor Co: D manufactures automobiles, sold to retailer, which sold to P. Wheel
was defective and could have been discovered with reasonable inspection. Question of whether D owed P
duty of care to anyone but immediate purchaser
- Broadens duty: item has to probably put life and limb in peril when negligently made
- Duty to act reasonably to protect persons who may come into contact with product if:
o Knowledge of probable danger
o Knowledge that product will be used by buyer without new tests
o Proximity or remoteness of relation
- Reasonable foreseeability derived from MacPherson
o Any risk that is non-trivial
o Very likely
- Manufacturer duty of care: one who negligently manufacturers a product is liable for any
personal injuries proximately caused by that product, even for just property damage
- Retailers: Less likely to be charged with negligence if they inspected the product and knew of
defect it is more likely better chance if using strict liability against retailers
Mussivand v. David: (foreseeable to third parties) P gets STD from wife who was having an affair
with another man and he did not tell her of STD There was a duty owed to tell her he had an STD
- If you have disease you have a duty to take necessary steps to prevent the spread of that disease.
Must be reasonably foreseeable that the person will be having sex with other people (someone
with a spouse)
- Limits duty only applies when they know or should know of infection
Qualified Duties of Care
Affirmative Duty: Generally, no duty exists where D has failed to render assistance to P in situation
where such assistance could have prevented P’s injuries
Nonfeasance: passive inaction choosing not to help someone in perilous situation you did not cause
- There must be definite relationship between the parties that induces duty to act
o 3 Exceptions
1) D had a hand in putting P at risk
2) Voluntary undertaking of rescue attempt can impose a duty
3) Certain relationships generate a duty
Misfeasance: active misconduct which injures someone
Osterlind v. Hill: Drunk man rents canoe and drowns owner of rental service heard his cries for help
and did nothing to help no duty to rescue because there was no special relationship between P and D
- Nonfeasance: D has no part in bringing P’s peril and does nothing to help
o P must establish special circumstances in order to prevail on negligent nonfeasance claim
Baker v. Fenneman (Taco Bell): D claims that Taco Bell did not owe a duty to P to render aid when he
was obviously injured D had a duty as a business that invited members of public in to provide
assistance to a customer in peril even if they did not cause it
- Duty to help, not provide extensive aid
o Public policy supports this if you are economically benefiting from invitees you
should have duty to help them in peril
- 3 Factor Test for Existence of Duty
o 1) Relationship between parties
o 2) Reasonable foreseeability of harm to person injured
o 3) Public policy concerns
Premises Liability
1) Invitee: Duty: Keep premises reasonably safe or warn when unsafe, responsible for dangerous
conditions that the owner should or has reason to know of Liability: Present at owner’s
invitation for business, commercial or $ purpose
2) Licensee: Duty: to warn of concealed dangers known to the owner. No duty to maintain safe
premises Liability: present with owner’s consent (includes social guests)
3) Trespasser: Duty: refrain from willfully or wantonly injuring. No obligation to warn of hidden
dangers Liability: Tortfeasor, intruding on land without permission/consent of owner or
occupier
- Premises Liability cases to do not arise out of risky activity (i.e. if food is undercooked no
premises claim can be made)
Leffler v. Sharp (Trespasser): Drunk guy goes on roof not part of bar he was at and falls through it
(injured); No duty owed to P, P was a trespasser
- Invitee who goes beyond bounds of invitation loses invitee status
- P would want to show that D knew people were on the roof, allowing them on there. P would also
want to show that “not an exit” is ambiguous
o Three Prong Test
Classify status (jury does this)
Determine duty (judge does this)
See if breached
Rowland v. Christian (Amplified General Duty): P was injured at D’s house. P claimed that D
knew faucet was cracked and had concealed the defect. P was injured while using the faucet.
- Rowland abolished distinctions between invitees, trespassers, and licensees blanket standard
of reasonable care
o P must prove they are aware of dangerous condition
o General duty owed to all was there a breach?
o The Third Restatement essentially follows Rowland approach
1/3 of jurisdictions follows Rowland approach; CT kept Leffler distinctions; MA
got rid of them
Factors to consider:
1) Professional (special) relationship with dangerous person [murderer]
2) Victim is foreseeable and identifiable
3) Actual harm to victim is foreseeable
4) Professional has special knowledge
5) Importance of confidentiality?
Ways to Protect:
- Warn party at risk of harm
- Restrain dangerous party
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II. BREACH
Standard Jury Instruction on Breach:
1) Failure to use ordinary care (reasonably prudent person standard)
a. Did D do or fail to do what a reasonably prudent person would have done under the
circumstances?
i. Jury decides this
Four Features of Standard Breach Instruction:
1) Negligence (breach) means failure to use ordinary care
2) Ordinary care is what reasonably careful person does
3) Consider whether D was negligent in doing/failing to do something
4) Consider circumstances under which D acted and if they took ordinary care
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Minors
- Tender Years Doctrine: Bright line rule: Children below age of 7 are incapable of negligence
7-14 = gray area when engaged in adult activities
- Adult Activities: Minors who engage in adult activities (i.e. driving a car) are held to reasonable
standard of adults
Appelhans v. McFall: Child rode bike into P. Parents are sued for negligence of child and child is
sued for negligence.
o Child could not be found negligent due to Tender Years Doctrine
- Negligent Supervision: must prove that parents could predictably be aware of children’s actions
and that the act was likely to occur. Something must put them on notice and they must have the
ability to control the child’s actions
o Parents must know incident has happened before and have opportunity to control the
child
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Reasonable Person – Failure to use care reasonably careful person would use in similar position
Myers v. Heritage Enters. Inc (Determining Professional Standard of Care): Hoyer life case
CNA’s tried to lift patient and patient fell, injured seriously and died 2 weeks later (cause unrelated to
fall).
- CNA is not a professional position, did not need an expert testimony
- Measured under ordinary negligence
Martin v. Evans (credibility determination): D parked at highway rest stop, tractor trailer parked in last
spot of the row. D checked behind truck and then backed up, hitting P, who claimed they were blindsided.
Checking behind the truck before backing up satisfied reasonable person requirement.
- Jury gets to decide credibility
- D exercised ordinary due care
Campbell v. Kovich: P was struck with an object that flew out from under lawn mower being operated
by D. Operator of lawn mower took reasonable care as a matter of law – inspecting lawn for a few
minutes was enough to meet reasonable person standard
- Next friend = acting on behalf of someone without legal capacity to act
- Problem for P = no tangible evidence (object was never recovered.
- Respondeat superior does not apply to independent contractors no duty to exercise ordinary
care when selecting an independent contractor
Adams v. Bullock (Extraordinary Circumstances): P, 12 year old boy was swinging a wire on trolley
bridge. His wire came into contact with trolley wires and he was electrocuted.
- Accident was not foreseeable, D followed customary practices. Hand (cost benefit analysis) –
precautions that would have avoided this were not reasonable
- All about foreseeability Nothing like this accident had ever happened before so it is an
extraordinary circumstance
- Holding D company liable in this situation would be like treating the company as an insurer
liability would not hinge on conduct standard
Vaughan v. Menlove (objective negligence standard): Fire started on D’s property and damaged P’s
cottages. D was warned he was harboring a flammable situation (hay). D said he would take his changes
- D was careless in not moving hay which caused fire to P’s cottages
o Held to standard of reasonable ordinary man (objective test); ordinary prudence was
applicable standard. This is leading case for idea that negligence standard is objective.
Doesn’t matter that he’s not smart, intelligence plays no part.
o P took a known, calculated risk
Physical disabilities:
- Someone with physical disabilities can’t take risks – must alter behavior to avoid risks (i.e.
reasonable blind person would not get into car and drive)
Mental Incompetence:
- No standard for reasonably prudent schizophrenic, etc.
Exceptions:
- Sudden incapacity
o i.e. heart attack while driving
- Temporary insanity
o Must be sudden and unanticipated
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Strict Liability – Liability for causing harm with or without fault. Does not need to show D’s failure
to take reasonable care just that D’s actions caused harm to P
Pingaro v. Rossi: D’s dog bites meter-person who came to check on gas meter. D held to strict liability
standard when dog bit meter reader.
- 3 elements to establish liability for dog bite:
1) D owns dog
2) Dog bites P
3) P was lawfully on D’s property, in public, or on another private property
a. All that is required is what is in the statute “we don’t care” about any
other factors
- What can owner do to avoid liability?
o Owner can either get rid of dog or keep it contained strict liability may require people
to stop or limit unsafe activities
- Liability based on fault = fairness strict liability = fairness doesn’t matter
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Specialists – Skilled at something so it is required to use higher standard of care (i.e. common carrier)
Jones v. Port Authority (Common Carrier): P injured getting on bus. Wants to note that CC owes
higher duty of reasonably care – extraordinary care. Bus driver required to use higher than normal
standard of care.
- Loss of consortium = loss of P’s society and services
- Standard of care used could be the difference between compensation or not
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Industry Custom
The TJ Hooper (Industry Custom): tug owners didn’t have radios on board and barges were damaged
in a storm.
- Court says custom does not set standard in all cases court ignored universal standard of not
having radios and set a higher standard
- This case represents a shift regarding sanctity of private business decisions Tort law assumed
regulatory function of shifting practices toward an ideal
- Custom = probative of reasonable care, not dispositive
- Hand formula: tugs are liable because radios are cheap and help to avoid potentially dangerous
harm
o Hand formula: precautions that are reasonable to take if costs do not abnormally
outweigh the benefits (If Burden > P*L no liable. If Cost < Safety, careless not to take
precaution)
Analyze cost of additional precaution compared with benefits that would flow
from taking that precaution
U.S. Carrol Towing (probability of loss – determining liability): Having a bargee on board would have
avoided or reduced the expected losses. Barge owner is negligent.
- Not customary for bargee to be on board docked barges so judge uses Hand formula
- B = cost of having bargee P * L = cost of accidents without presence
- Burden < Probability of Injury need someone there during the day only Low likelihood of
harm resulting from barge being moved at night
Rhode Island Hosp. Trust Bank v. Zapata Corp (cost of precautions): Bank is in position to spot
forgers. Employee forged checks but months passed and Z did not notice. UCC says strict liability, but
the bank has a system to check. It would cost more to check the checks and wouldn’t reduce forgeries.
Rule: standard of ordinary care does not have to be the best one possible as long as its not unreasonable.
- Bank already doing more than industry standard requires requiring them to do even more than
this would afford no increase in protection at a very high cost to the bank Bank procedure
meets standard of ordinary care; consistent with industry practices; reasonable based on Hand
formula
Johnson v. Riverdale Anesthesia Associates (Med. Industry Custom): Decedent had bad reaction to
anesthesia and died. D failed to pre-oxygenate before surgery. D’s expert witness testified to what he
would have done and it was different than D.
- Plaintiff arguing that Custom is dispositive in medical malpractice cases
- In a med. mal. case evidence of an expert’s own practices may be excluded as irrelevant
o The practice of one expert does not equate to general industry custom/standard
Condra v. Atlanta Orthopedic Group (medical standard of care): D negligent in failing to conduct
blood count monitoring when prescribing meds. P prohibited from inquiring about personal practices of
D’s expert witness for med treatment. Difference in views between physicians does not itself prove
malpractice.
- Court overrules Johnson Expert opinion is now important because it helps deduce what the
applicable standards are in a medical community
- Locality rule: national standard of care is everyone, locality rule is all of the physicians in local
area. This doesn’t apply anymore hard to get doctors from the same county to testify against
each other.
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Informed Consent – Different than medical malpractice about getting reasonable consent. Cost-
benefit analysis allows people to reasonably accept certain risks
Prudent Patient (material risk) Test / Canterbury Standard (New Governing Standard):
Need to disclose all risk in treatment which are sufficiently material that a reasonable patient would take
into account in deciding whether to undergo treatment, provided that the patient’s well-being would not
be unduly disturbed by such disclosure.
- Material information: Gives rise to a duty on physician to warn patient of dangers inherent to
procedure scope defined by patient’s need
- Professional Standard: Physician has discretion as to what is important for patient to know
Court says too paternalistic and shouldn’t be used
3 Prongs for Liability for Informed Consent:
1) There was no proper disclosure
2) The treatment resulted in or caused injury
3) If proper disclosure had been made, patient would have foregone treatment
Largey v. Rothman (Prudent Patient): woman consents to medical procedure adverse result that she
didn’t know was possible. Wasn’t informed of risks.
- Prudent Patient standard is the proper standard to be used
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Res Ipsa Loquitur – “The thing speaks for itself” Prevents cases with no evidence from being
decided with summary judgment burden shift to D to prove no carelessness
General standard = plaintiff must show preponderance of evidence (50% or more)
- Res ipsa loquitor = form of circumstantial evidence jury may infer defendant acted
unreasonably
o Can draw on community experience to conclude adverse event would not occur absent
negligent conduct
P must show:
1) Injury must be kind that doesn’t ordinarily occur in absence of negligence
2) Must be through instrumentality that is within exclusive control of the defendant
3) Must be no contribution from P
D can show:
1) Exercised due care but this might help P by showing there was more likely negligence on part of
D could also show actual cause of accident
2) Can prove cause of accident or attack any element of res ipsa that plaintiff must show
Byrne v. Boadle (Prima Facie Evidence): Barrel falling and hitting P was prima facie evidence of
negligence It is reasonable to conclude that without negligence a barrel would not just roll out of the
warehouse
- Some sort of breach happened
Kambat v. St. Francis Hospital (Med. Mal. Res Ipsa): Surgical pad gets left inside patient this is
usually due to some negligent mistake. P does not need to eliminate every alternative explanation (i.e. she
swallowed it).
- Some Med. Mal. Cases are so simple that we don’t need an expert witness or jury
- 1) injury does not occur absent of neg.
- 2) surgery was in sole control of D
- 3) patient was unconscious so could not have contributed
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- Statute was meant to protect unaware pedestrian; accident was not within the risk
- P loses on ordinary neg. too D’s conduct was not unreasonable and he could not foresee that
car would lose control and crash into sidewalk
- In order to use neg. per se statute must be relevant to the events of the case
Negligence per se: Does statute set a standard of conduct? Did Defendant violate it without an
excuse? Was violation an actual cause of Plaintiff’s injury? Is Plaintiff a member of statute’s
protected class (duty)? Was incident among those statute was intended to protect (proximate cause)?
- Must answer yes to all of these questions to have neg. per se prima facie case if not then might
still have normal case (Dalal)
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Multiple Necessary and Multiple Sufficient Causes – When more than 1 actor’s carelessness
contributed to the occurrence of the injury (apply but-for test)
Joint and Several Liability: P can recover 100% from A or B or demand 50% from each or 80/20 or
whatever they want When both D’s contribute and its indivisible
McDonald v. Robinson (Joint and Several Liability): 2 careless drivers and one pedestrian. If either
had driven carefully, accident would not have happened. Negligence of both parties is necessary for
outcome. Can’t separate judgments (Indivisible) because they don’t know who caused what injuries.
- But for such combined negligent acts, the injury would not have happened
- When 2 or more acts function as necessary for injury to occur, each is a cause of that injury
Ford Motor Co. v. Boomer (toxic torts): State trooper who died of mesothelioma main issue = actual
cause component of proximate cause. But for test not useful because two causes concur and either alone
would be sufficient to bring about injury (meso.)
- Substantial contributing factor test is BAD
- Proper test: if evidence was sufficient to cause the injury then there is actual cause
o Boomer would have to show failures to warn each would have generated the
mesothelioma and that he contracted it after his exposure from Ford
o Exposure would have to be a sufficient cause, other possible causes do not equal a
defense both causes must take place before cancer set in
Wannall v. Honeywell International Inc (toxic torts): P diagnosed with mesothelioma. Trying to
establish exposure with D’s product (Bendix breaks) was actual cause. Plaintiff must show exposure was
sufficient in and of itself to cause injury.
- Boomer Test:
1) What exposure level = sufficient to cause mesothelioma
2) Whether levels were sufficient in this case
Boomer’s aim was to require plaintiff to show a level of exposure that is
sufficient and where that level was hit in each case
- Palsgraf and MacPherson: Both = yes to a duty MacPherson was about carelessness to any
user of the car Palsgraf carelessness was only toward one person (not Palsgraf)
- Palsgraf = unforeseeable plaintiff due to her lack of proximity to the firework explosion
o Unforeseeable plaintiffs generally do not prevail
Petitions of the Kinsman Transit Co: Barges coming loose and floating down river end up knocking
down bridge, damming the river and causing damage to property upstream. Failure to drop anchor lead to
ship floating down river. Reasonably foreseeable that failing to raise the bridge would lead to damage.
- Is the manner in which the events unfolded so unexpected as to render each D breach a remote
cause of flooding damage?
o Kinsman and The City: foreseeable both were on notice
o Continental: some form of property damage was foreseeable
- Proximate cause:
o Kinsman: failure to drop anchor
o City: failure to raise the bridge in time
o Continental: improper construction of deadman
Rule: Where an actor breaches a duty of care at the risk of creating a foreseeable type of injury, liability
is not limited on the ground that the actual, resulting injury was different in manner and extent than
expectable.
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Traditional Common Law Rule (Contributory Complete defense – P recovers nothing unless D
Negligence) had last clear chance of avoiding event that
injured P
Modified Comparative Fault (50%) (CT uses (Responsibility) If P’s fault is >50%, P recovers 0;
this) If P’s fault is <50% P recovers % of D’s damages
in proportion to the % of their fault
Modified Comparative Fault (49%) If P’s fault is 50% or more, then P recovers
nothing
- Contributory negligence (bars recovery) is still used in NC, AL, MD, VA, D.C.
o D who uses this must show P’s conduct was cause in fact of injury
- D pleading comparative fault must prove: but for P’s carelessness there would be no injury
US v. Reliable Transfer Co (Proportionate Responsibility): Coast guard fails to properly maintain
light. Ship gets stuck and damages. 75% fault to ship and 25% to coast guard. Admiralty rule = split
damages in half. Court rules more equitable to allocate damages based on comparative degree of fault
(25% for CG and 75% to the ship) when it is possible.
Hunt v. Ohio Dept. of Rehabilitation & Correction (Modified comparative fault): Inmate puts hand
in snow blower. Prison did not teach her to use it correctly. P is 40% at fault, D is 60% at fault. She gets
60% of damages awarded.
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Assumption of Risk – A confident plaintiff who sufficiently recognizes risks of a given activity
and chooses to encounter them cannot seek redress from defendant on a claim that he breached a duty
owed by exposing her to those risks.
- Knowingly and voluntarily taking on the risk they might be injured by D’s conduct
- Different from comparative fault D does not have to prove P was careless Must prove P
forfeited right to complaint about D’s conduct because P decided to encounter risks associated
with that carelessness
- CT and NY treat assumption of the risk as contributory negligence
Express Assumption of Risk: Waivers, disclaimers, liability changes relationship between P & D. We’re
not liable if you get hurt in the services we provide you. Usually recreational activities (sky diving,
bungie jumping, go-karting)
- Protection of defendant’s purse
Exculpatory provision: Tunkl Factors to determine enforceability
1) The existence of a duty to the public
2) The nature of the service performed
3) Whether the contract was fairly entered into
4) Whether the intention of the parties is expressed in clear/unambiguous language
Jones v. Dressel (Consent waiver and Exculpatory Agreement): P injured while skydiving. D said
they weren’t liable because of the contract. Court ruled agreement was valid.
- Contract was valid because P ratified it after he turned 18 (went skydiving)
- P had a choice. No one forced him to skydive and was not an adhesion contract
- Court uses Tunkl factors and says skydiving not enough of an important public service to warrant
voiding the agreement
Dalury v. S-K-I Ltd (Consent waiver and essential service): P injured skiing but they signed a release.
Exculpatory clause is void due to public policy duty – Ski areas are public areas and there’s a high public
interest involved. It should be kept safe by owners.
- Premises liability owners have a duty to keep mountain safe
- Tunkl factors in play again (matter of public policy) skiing = popular activity permitting
owner to invoke waiver would undermine law’s allocation of responsibility leads to
deregulation of one of of Vermont’s major industries
Voluntary assumption of risk:
- P must voluntarily go ahead in the face of the risk
- P may not have said to have assumed the risk where there is no available alternative to
proceeding in the face of the risk
o i.e. the only exit to leaving the building is unsafe
Implied Assumption of Risk: P must know of risk; knowledge may be implied where the risk is one that
the average person would appreciate; must voluntarily assume the risk (limited to recreational activities)
Smollet v. Skayting Dev. Corp (voluntary assumption of risk): skater complained about surface of
rink being higher but proceeded to skate on the rink and was injured. Because assumption of risk was
reasonable, there was a complete bar to recovery even though P was not negligent.
- Implied assumption of the risk should be divided up between reasonable and unreasonable
- If it involves P’s negligence then it relates to comparative fault P’s non-negligent conduct
constitutes a waiver (conduct of skating anyways shows she understood the risk)
- A plaintiff assumes the risk of injury so as to waive the defendant’s duty of care where the
plaintiff voluntarily participates in the area of risk after becoming aware of the risk
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Statute of Limitations – Clock starts running when D acts carelessly and act harmed plaintiff
(Accrual Rule)
- Accrual Rule: The clock begins to run when P’s claim accrued when D commits a negligent
act and it causes harm P’s claim is barred if outside the statute of limitations
- Discovery Rule: Once you discover injury’s cause then the clock starts to tick clock starts to
tick at a later time than under the Accrual rule it starts when P knows or should have known
they have a cause of action
- Inquiry Notice: As soon as diagnosed one is alerted they need to investigate/inquire into the
cause
Ranney v. Parawax Co (injury notice/toxic tort): P believes and has expert opinion to back up when he
got disease as a result of working at Parawax. Brought case 11 years after working there. Not within the
statute of limitations because…
- Clock starts running once claimant knows or should know that their condition had possible causal
connection to D
- Claimant has the duty to investigate in a timely manner
- Statute of limitations is not tolled by an unsuccessful investigation
- The statute of limitations for a workers’ compensation claim begins to run when the
claimant knows or has reason to know that his or her injury is possibly compensable
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Immunities and Exemptions from Liability – Sovereign is the one remaining that is most
prominent today – substantial bar to recovery. Familial and small charities are not really recognized.
- Immunity does not extend to willful/wanton mistreatment
- Charitable immunity has been abrogated increasingly
Sovereign Immunity: U.S. must consent to a suit otherwise it is immune. No general consent to tort
claims. Federal District Courts have exclusive jurisdiction under the FTCA and no juries are used. No
punitive damages available.
Riley v. U.S. (Discretionary Function Exemption): Postal service placed mailboxes by intersection and
P was injured because he couldn’t see around them when driving. P argued gov. violated rule from green
book but green book was not mandatory (just guidelines). Gov. persuaded court that the placement of
mailboxes was discretionary function.
- Postal service was immune balancing many factors and used discretion in placing mailboxes
- Two Part Test for Discretionary Function:
1) Element of judgment/choice
2) Judgment be of the kind discretionary function exemption was designed to shield
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Liability Exemptions: Government and Private Entities
Public Duty Rule: Absent any special circumstances, towns owe no duty to citizens for injuries resulting
from negligence by town. “Because we owe a duty to everyone, we owe a duty to no one.”
- Law does not recognize an affirmative duty on Police Department to protect individual citizens
Riss v. City of NY (Public Duty Rule): Riss was threatened by a man repeatedly, sought police help and
was denied. She was eventually attacked and blinded. Riss sued police and lost because there was no duty
to protect her.
- Too much duty to give protection to every individual if credible and they have evidence,
police have duty to investigate
- There has to be certain decisions made – to impose liability the police would change the way they
do their job and it would be harmful to general public
- This = nonfeasance might have turned out differently if police had promised to protect her by
undertaking duty through special relationship (think Tarasoff)
Strauss v. Belle Realty (Privity of Contract): ConEd electric power goes out in all of city and Strauss
falls down stairs in common area of apartment building. Sues ConEd for lack of lighting that causes
injury. Court: if we allow recovery that would open door to claims against ConEd and they would go
bankrupt.
- No contractual relationship between Strauss and ConEd so Strauss gets nothing floodgates of
litigation argument Court has duty to limit the legal consequences of liability to a controllable
degree
- Dissent: Strauss should be able to sue because he is identifiable as special class of plaintiff
- ConEd is limited is gross negligence and recklessness – not ordinary negligence
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Punitive Damages
Special category of damages not available to all plaintiffs available to those who can demonstrate
certain forms of aggravated mistreatment (battery, fraud, wanton and willful violence/negligence)
National By-Product Inc. v. Searcy House Moving Co. (Damage to property/punitive damages):
National driver was speeding and smashed into car, knocking it forward and causing it to hit the house on
wheels. Passengers of car were killed. National appeals punitive damages arguing there is no disposition
of perversity (absence of all care. Majority says truck driver did not act wantonly. Dissent says there is
evidence driver’s conduct was wanton/reckless.
- Majority: punitive damages are rare and not mandatory (Searcy wasn’t deserving of punitive
damages because they contributed to accident)
- Not entitled to punitive damages for gross neg.
- No evidence that NBP endorsed Foley’s reckless driving
Mathias v. Accor Economy Lodging Inc. (Reckless indifference/non-excessive punitive damages): P
checks into motel operated by D (Motel 6). During P’s stay P complained of bedbugs. P says D knew of
bedbugs but ignored the issue – willful and wanton conduct. D refused to use exterminator and instead
changed guest rooms. P got 5K award in compensatory and 186k in punitive damages. D appealed. P was
entitled to punitive damages and award was not excessive.
- Has to be heightened/reckless conduct to get PD – more than just simple neg. gross
negligence is enough for Posner
- Punitive damages are necessary because they get people to sue for claims they otherwise would
not sue for (not worth the time or money)
1. Punitive damages imply punishment and a standard principle of penal theory is that punishment
should fit the crime (must be in proportion to wrongfulness of action).
2. D should have reasonable notice of sanction for unlawful acts so that he can make rational
determination on how to act
3. Corrective justice, sanctions should be based on wrong done rather than status of D. A person is
punished for what he does, not who he is, even if huge company
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Vicarious Liability
One person/entity is held responsible for the tortious acts of another who’s acting on their behalf
Respondeat Superior: Employer can be held responsible for employee’s negligent conduct (wrongful
act) when it is in the scope of the employment/related to employer
Independent Contractors: DOES NOT APPLY to independent contractors
Control issue – independent contractors control themselves
Taber v. Maine (Conduct Characteristic of Job): D got drunk on military base while off duty. Drove off
base and got into accident that injured P. *IF CALLED ON WESTFALL, WOULD HAVE BEEN
IMMUNE. Drinking on base customary and improves morale, thus, it falls within scope of employment
in the Navy. Thus, Navy can be held liable under respondeat superior.
- Ferres Doctrine does not apply here Ferres will normally bar suit when compensation is given
through workman’s comp.
- Court should ask: Was P engaged in act that fell within scope of employment?
o Yes – Ferres applied
o No – Ferres not applied
- Who is in best position to prevent the problem The Authorities (military, here)
o Harm suffered by Taber is a cost of running the navy navy is in best position to
control it
- U.S. = vicariously liable for sailor’s drunken driving scope of employment was = to line of
duty was the employee’s conduct characteristic of his employment his conduct was
characteristic
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Bystander NIED
Where one is not within the zone of danger but witnessing the death of someone they are very close to
reflection of changing attitude of courts
Bystander NIED (from Dillon & eventually law in Thing) – P must establish:
P must suffer emotional distress and can recover for it (from shock of the accident
- Thing: P must suffer ED beyond what would have been expected by a disinterested witness
and which is serious (more than just getting upset)
Waube v. Warrington (witness outside zone of danger): mother watches daughter get run over and killed
from window. Distressed and she dies, partially from anguish. Husband cannot recover for ED on wife’s
behalf because she could not recover under zone of danger test.
- Palsgraf Doctrine: must be an invasion of legally protected interest Driver has a duty to care
for those on the road, but does not have a duty to care for someone who might witness the
accident. Liability is out of proportion to culpability and when others see it and are seriously
distressed, its beyond the scope of wrongdoing.
- Can only ask for a change in the law when you don’t have a remedy available to you (call your
congressman)
Dillon v. Legg (temporal and spatial proximity): daughter was hit by car, mother was not in zone of
danger but watched it happen; sister was in the zone of danger; Court says must be recovery for mother
even if she wasn’t in the zone of danger.
- Lower court denies mother’s claim because she was outside zone of danger but let’s daughter’s
claim succeed because she was inside ZoD (Amaya Precedent)
o Higher court reverses this logic says mother can’t be barred from recovery just
because she was a few feet further away
Duty is non-relational owed to the world zone of danger is absurd still
can’t piggyback on claims of third parties
- To determine who recovers: Could D have reasonable foreseen their careless conduct would
generate emotional distress and the distress actually happened?
3 Requirements:
1) Physically near accident
2) Distress is from contemporaneous observation of accident
3) Close relation to the accident victim
Thing v. La Chusa (Brief and Sudden Occurrence): Mother did not observe accident but rushed to the
scene and saw son badly injured. She was barred from recovery because she did not contemporaneously
sense the accident. Takes Dillon factors and makes them elements (rules) for NIED. Must be present at
the scene at the time accident occurs.
- Limit to close family and perception helps insurance companies. The close relationship is
compensable – not for disinterested witness.
- Dillon guidelines converted into rules damages recoverable if: P is closely related, present @
the scene, suffers serious distress as a result (more than average witness)
- NIED, Wrongful Death, and Loss of Consortium are all related claims (but not the same thing)
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For his own purposes, bring on his land and collects and keeps it there
Rylands v. Fletcher (prima facie ultrahazardous): D builds reservoir which collapses into neighbor’s
mine and floods it. Non-natural or abnormally dangerous activity makes D strictly liable even if D
exercised due care. If person keeps something likely to do mischief on their property must contain it at
their peril; if it escapes person is prima facie answerable for any harm that occurs as a natural
consequence of the escape.
- Unless there is contributory negligence or an act of God, D will be prima facie answerable (liable
for problems caused)
- Public highway flooding example: No claim on public highway you assume the risk of using
highway so not
- Rule: If you bring something inappropriate to place of activity and damage results you will be
held strictly liable
Klein v. Pyrodene Corp. (6 factor test for ultrahazardous acts): Fireworks display operators strictly liable
for harm when fireworks misfire into crowd and injure viewers.
- Firework display = abnormally dangerous (Restatement § 519 and § 520 factors for strict
liability)
- Court uses statute in support of strict liability (not enough on its own) any regulation or
insurance requirements also helps support strict liability of abnormally dangerous activity
6 Factor Test to Determine Abnormally Dangerous Activity:
1) High risk of harm
2) Likelihood that harm will be great
3) Inability to eliminate risk through great reasonable care
4) Whether activity is commonly undertaken
5) Inappropriate location?
Products Liability
Liability = strict does not matter if you took all possible care (think MacPherson v. Buick)
Key to products liability is the defect
1) Manufacturing Defect difference between specified condition and actual condition
generally a “one-off”
2) Design Defect unreasonably dangerous due to the design (every product made would be
defective)
a. Consumer Expectation was product as safe as an ordinary consumer would expect?
i. Plaintiff friendly jury has leeway on what is unexpected
b. Risk-Benefit (not to be confused with Hand formula) was design reasonable in light
of risk/benefit analysis
i. Defendant friendly because it requires an expert and gives more room for SMJ
3) Failure to Warn defective because warnings or instructions were not adequate
Escola v. Coca Cola Bottle Co. (lead-up to strict products liability): P was waitress handling bottles and
one exploded in her hands as she took it out of the box to stack it; serious injuries to her hand resulted.
Plaintiff relying on Res Ipsa Loquitor because unable to show specific acts of negligence.
- Defendant not necessarily liable Jury still has to decide on liability Res Ipsa only proves
breach
- Exclusive control does not mean D had control at the time of the accident just having control
at some point is enough
- Traynor Concurrence: Manufacturer is in best position to minimize the losses D has ability
to pass on the loss to consumers (loss spreading) Eliminates need for proof because it is too
easy to circumvent Res Ipsa if you require proof should loss be incurred by one who created
the issue or the one who suffered from it?
o Advocating for strict products liability
Warranty Law
- Express Warranty = product fit for intended use
- Implied warranty = implied for particular purpose store shows you something that is sufficient
for what you need to do
Greenman v. Yuba Power Products (strict products liability): P was injured using Shopsmith power
tool manufactured by D (Yuba). When using as a lathe piece of wood flew out and injured him. P sued for
breach of express warranty arguing product not safe for intended use. Late notice does not bar recovery.
- Judge Traynor decides manufacturer has incurred strict liability just by placing product on
the market
- Adds that manufacturer is strictly liable with intended use qualification P only has to prove he
was injured when using product for intended use
- Res Ipsa would not work because P was not passive; was using the product
- Landmark case enforcing strict products liability for first time
Products Liability expanded to include retailers, manufacturers and to cover bystanders
One who sells a product in a defective condition unreasonably dangerous to user is subject to liability
for physical harm if:
b) It is expected to and does reach the user without substantial change in condition in which it is
sold
Does not matter if they exercise all possible due care; or that the user has not bought the product from
the seller
Gower v. Savage Arms (multi-faceted products liability): P shot himself in the foot while preparing to
unload rifle after day of hunting. P alleging:
1) Manufacturing Defect = flawed unit = metal ridge
2) Design Defect = flaw is in entire product line = no detent system
3) Failure to warn = information flaw (otherwise safe product = unsafe)
a. SMJ for defendant because Mr. Gower was an experienced gun user and should know
safety risks without warning anyways
- Rule: A manufacturer is subject to strict products liability when P shows product was defective at
time it left manufacturer’s hands and that such defect caused injury to P
Chow v. Reckitt & Colman Inc. (Risk-Utility Test): P mishandled D’s product (lye) and is injured. P
argues defective design and failure to warn. D argues P used the product improperly. Defendant is not
liable for design defect if evidence shows product’s utility outweighs its inherent risk of harm.
Risk Utility Test:
1) Product’s utility to public as a whole
2) Its utility to individual user
3) Likelihood that the product will cause injury
4) Availability of safer design
5) Possibility of designing and manufacturing product so that it is safer but remains functional and
reasonably priced
6) Degree of awareness of product’s potential danger that can be reasonably attributed to injured
user
7) Manufacturer’s ability to spread the cost of any safety-related changes
Wilson Sporting Goods Co. v. Hickox (Consumer Utility Test): P injured when umpiring in D’s umpire
mask. Sues based on negligence, implied warranty, strict products liability (design defect and failure to
warn).
- Court uses consumer expectation test instead of risk utility
o Hickox wins because proximate causation of injury through the defect was established
(expert testimony)