Torts Outline 2017

Download as docx, pdf, or txt
Download as docx, pdf, or txt
You are on page 1of 33

TORTS 2017

NEGLIGENCE  PRIMA FACIE


1) Injury
a. Physical harm; loss of wealth, emotional distress
2) Duty
a. A duty owed to the injured party to take care not to cause an injury of that kind
b. Act as a reasonable person would
c. Draw on common sense
d. Careful behavior when carrying out risky behavior
e. *Foreseeability is critical to establish duty*
3) Breach of Duty
4) Causation
a. Actual  D’s breach was a but-for cause of harm
b. Proximate  sufficiently related to P’s injury/harm caused

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
______________________________________________________________________

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

______________________________________________________________________
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

Pure Economic Loss


There is no general duty to prevent economic loss. The duty arises for accountants, trustees, etc.
- Changes if economic loss is a parasitic claim to actual physical damage (property damage)
Economic loss does not constitute a duty of care without special relationship or privity of contract
- Exceptions: Special relationship  foreseeable economic loss if negligently performed
Aikens v. Debow (Interruption of Commerce): Truck damages bridge which cuts off route to hotel and
results in loss of profits because of interruption of commerce
- P looking for purely economic damages
- Cannot recover for pure economic loss in negligence suit
Individual cannot recover pure economic loss from interruption in commerce caused through
negligence without:
1) Physical harm to person/property
2) Contractual relationship that establishes a duty
3) Special relationship
______________________________________________________________________

Foreseeable Duty of Care (protecting others from third parties)


No general duty to control the actions of others  Unless a special relationship exists between the 1st and
2nd person or the 1st and 3rd person
When determining duty to protect 3rd parties  foreseeability is of chief importance
- D owes duty to all persons who would be foreseeably endangered
Tarasoff v. Regents of University of California: Patient tells psychologist they are going to kill
plaintiff’s decedent. Patient was briefly detained by police and then released. He killed plaintiff’s
decedent.
- Special relationships give rise to duty to protect P – failure to detain claim failed
- If there is a foreseeable risk that P is going to be injured by a party that professional has a special
relationship with and professional has reason to know that P is in danger based on that knowledge
 there is a duty to exercise reasonable care to protect the 3rd person
- Once therapist determines patient poses a danger of violence to others, they have a duty of
reasonable care to protect the foreseeable victim (warn)
o “Protective privilege ends where the public peril begins” (Hand theory  gains and
losses from recognizing duty)
- Police were not responsible because there was no special relationship between Police and
Murderer

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
______________________________________________________________________

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
______________________________________________________________________

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
______________________________________________________________________
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

______________________________________________________________________

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

______________________________________________________________________

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
______________________________________________________________________

Industry and Professional Custom


Professional Custom sets the standard of care
a. Reasonably careful person follows the established customs
i. Standard of care accepted and followed by the relevant professional groups
ii. Compliance with standard = reasonable care
______________________________________________________________________

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.
______________________________________________________________________
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
______________________________________________________________________

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
______________________________________________________________________

IV. NEGLIGENCE PER SE (Extension of Breach)


Special rule concerning breach element  permits plaintiff to point out standard of conduct defined in a
statute/regulation as establishing standard to which D was required to conform
- Satisfies P’s burden of proving breach (non-compliance = breach)
- Must establish a violation of a conduct-oriented statutory command – necessary to make out a
claim for negligence per se but not sufficient
Requirements:
- 1)Violation of statute
- 2) Designed to protect against the type of accident of which actor’s conduct causes
- 3) Accident victim is within class of persons the statute is designed to protect
- Must be in right protected class and suffer right kind of accident
- 4) Must prove violation was proximate cause of injury
o If not, must proceed under ordinary reasonable person standard
- Statute must establish a standard of care  cannot be a record keeping statute
Excused Violations
1) Incapacity to comply
2) Lack of knowledge
3) Inability to apply
4) Emergency
5) Compliance poses a greater risk than violation
Dalal v. City of NY (safety statute): D hit P at 4-way stop and wasn’t wearing glasses she was required
to wear when driving. Unexcused violation of statutory care. If unexplained (no excuse), then negligence
per se.
- Still have to show causation
- If D has valid excuse it is NOT negligence per se
o Ex. She had Lasik surgery and could see fine  Incapacity: lack of knowledge of need to
comply  Inability to comply such as an emergency
o In the absence of an excuse jury must find negligence
Bayne v. Todd Shipyards Corp (protected class/admin regulation): Truck driver hurt when unloading
goods form truck (fell off platform). Railing was not high enough. Statute/regulations applies to all
workmen, not just employees of the company being sued. Look @ what lawmaker meant when they
wrote the statute.
- Regulatory decision holds same force as a statute when they required hearings/testimony (look at
process)

Test to see if regulation applies:


1) Within particular class of regulation
2) Protect invaded interest
3) Protect from harm
4) Protect from harm of hazard
Victor v. Hedges (Purpose of statute, right kind of injury): D parked on sidewalk, talking to P about
radio. Statute says no one should park on sidewalk. Another car struck curb when they were looking in
trunk and injured P. Court grants SJ for D – statute was not designed to protect people getting hit by
vehicle while standing on sidewalk.

- 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

- Risk was not of the kind the statute meant to protect

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)

______________________________________________________________________

V. CAUSATION – Needs to be both actual and proximate


Actual: But for causation – whether or not D’s carelessness played a role in P’s injury
- Rule: In order to establish actor’s conduct was actual cause of injury, victim must prove that it is
more likely than not that but for the breach she would not have suffered the injury
- For the jury to decide  looking for “a” cause not “the” cause
- If answer to ‘but for’ = no then we have actual cause  if yes then no actual cause
- Plaintiff must show more likely than not through preponderance of the evidence
Proximate: Was the connection between D’s carelessness and P’s injury too remote to hold D
Responsible
- Whether or not causal connection between injury and act is enough for D to be legally responsible
- Can have actual cause but not proximate cause
______________________________________________________________________
Actual Cause
Muckler v. Buchl (preponderance standard and premises liability): P injured on stairwell 
Landlord responsible for this area  Landlord required to exercise reasonable care –> more probable
than not there was cause to be attributed to D
- Plaintiff doesn’t have to disprove all doubt from juror’s minds as to whether there is an
alternative explanation
- Lack of adequate lighting was an actual cause of P’s injury  P was likely to fall because of the
darkness
Butts v. Weisz (premises liability): P was injured in D’s house when P fell in the dark on his way to the
bathroom  Evidence of increased risk of harm does not equal cause
- P’s problem is causation  establishing causal link between P’s fall and D’s duty
- P = licensee so duty owed is to warn of hidden dangers  Host’s job is to avoid misleading
guests
- When establishing cause expert cannot be speculative because this would go against “more
probable than not” standard
o Can’t say for sure what caused the injury
Jones v. LA Fitness Int’l (premises liability): P was injured playing basketball on court at D’s gym. He
crashed into unpadded section of wall. Issue: whether P would have probably been injured if there were
padding on the wall; more space out-of-bounds; better markings?
- P has showed D’s conduct more likely than not caused his injury
- Pursuant to Federal Rule of Evidence 702, a qualified expert witness may testify in the form of an
opinion
- Jury might conclude lack of wall padding was a significant factor in Mr. Jones’s injury
- Daubert standard: expert was expert in safety precautions so couldn’t make medical expert
conclusions  only about court regulations
Falcon v. Memorial Hospital (nonfeasance causation) (<51% lost chance doctrine): woman suffered
embolism after childbirth. If she had been given IV she would have had a 37.5% chance of survival. D did
not kill her but took away chance of survival. Family gets discounted damages – 37.5% of total value.
Lost opportunity doctrine.
- Court says even though 37.5 is les than 50% probability standard – Plaintiff should have been
afforded chance at survival
- Dr.’s failure to act robbed P of a chance to find out if Falcon would have survived
- Court allowing P to get to jury despite less than 50% chance of survival
- Michigan reversed Falcon decision 2 years later  has to be over 50% chance of survival  if
over 50% then but-for-cause
- CT adopted loss of chance doctrine but retained that decedent had at least 51% chance of survival
before neg.
o Never applied outside medical malpractice (wrongful death)

______________________________________________________________________
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

 Exception to ‘but for’ rule  higher standard of evidence that depends


on expert and whether testimony is valid under Rule 702
___________________________________________________________________

Causation and Tortfeasor Identification


Summers v. Tice (alternative causation): P injured in hunting accident when friends fired their guns
in his direction and he was hit with bird shot. ‘But for’ test does not work here because P can’t
prove who was responsible. Court shifts burden to defendants to prove they were not
responsible
- Fairness to plaintiff  Both D’s were negligent and one is clearly responsible. Plaintiff must be
able to recover somehow for injuries
o Court puts onus on D to produce evidence one of them is liable and one is not
- This is different from McDonald  it is not concurrent negligence  don’t need both D’s for
injury to occur here
- Rationale for applying Summer’s approach decreases as number of D increases
Sindell v. Abbott Labs: Class action suit. P alleging drug DES would cause cancer and D knew this
when they sold it. P cannot prove who the actual manufacturer of the DES her mother consumed is.
- In Summers all possible D were before the Court. In this case it is only 11 out of 200 possible
defendants  can’t apply Summer’s approach
- Market share liability  Court says manufacturers are in better position to figure out what
happened than P
o Damages correspond to D’s share of the entire market of drug
o Percent of market share = percent of damages
o Based on inequity of sending P home with nothing
 Problem: D may end up with unfair apportionment of liability
______________________________________________________________________
VI: PROXIMATE CAUSE – Space between actual cause and establishing cause as a whole
- Links the injury and the breach  No universal test for proximate cause
- Requires causal link between breach and injury to be natural, foreseeable and within the risk such
that it is appropriate to hold D responsible
- Proximate cause = line drawing  at some point you have to cut off the events that lead to an
injury
- 4 Tests of Proximate Cause
o 1) Natural
o 2) Direct (polemis)
o 3) Foreseeability (wagon mound)
o 4) Within the Risk
Union Pump Co. v. Allbritton (too remote): P was walking on pipes after fire at pump station. P was
injured. But-for cause exists, but is there proximate cause? No proximate cause as matter of law – not
foreseeable. Fire was not proximate cause of P’s injury.
- Reasonable foreseeability – Actual cause can only be proximate cause if the injury was
reasonably foreseeable (i.e. Wagon Mound)
o Wagon Mound ruling: Fire resulting from spilled oil in harbor was not foreseeable
consequence. Only liable for damage oil itself did to the dock, not fire damage.
(foreseeability rule). Ignition of the oil slick was not reasonably foreseeable.
- Risk Rule – Proximate cause is satisfied only if P’s injury is among the types of injury that
warrants deeming D’s conduct careless in first place
o Fact sensitive test
Jolley v. Sutton London Borough Council (foreseeable danger): P is young boy who is injured by boat
abandoned on land owned by D. P had boat propped up and was working on it and it fell and crushed him.
D argues P’s actions were not foreseeable. Court says it was within the scope of risk and what children
might do with the boat.
- Occupier is under a duty to protect a child from foreseeable danger. Court held it was foreseeable
because it was an attractive nuisance. Foreseeable that injury could have happened even though
the particular pattern of events was unforeseeable.
o Someone should be in charge of looking after the boat  it was propped up for months
- Foreseeable that child would want to play with the boat  repairing it is still playing (mimicking
adult behavior)
- Type of injury doesn’t matter  Risk rule: was this injury within the risk?  enough that
child would be drawn to the scene and probably be injured somehow

The Relational Aspect of Breach of Duty


Palsgraf v. Long Island Railroad Co: RR would not have been able to guess that package would blow
up and scales would fall on someone on the other end of the platform. It was highly unforeseeable.
- Cardozo: RR had a duty but problem with Palsgraf’s claim = Relationship between her and the
employees of railroad  she is piggybacking on someone else’s claim
o Plaintiff cannot be vicarious beneficiary of a wrong to another
o Conduct of D’s employees was not a wrong in relation to P standing far away  plaintiff
must sue in their own right, not derivatively
- Andrews dissent: There is never a case where the plaintiff loses for lack of duty owed  Duty
has no role to play in his conception of Negligence  proximate cause has no fixed rule; must
be a well rounded approach

Suing LIRC Package Owner Palsgraf Adjacent Commuter

Injury Yes Yes Yes

Duty Yes Yes Yes

Breach Yes No Yes

Cause Yes Yes Reasonable jury could


find yes
Contrib. Neg. Yes No No

Outcome: Loses – Contrib. neg. Loses – no breach = Might win due to


= no case at this time no case proximity

- 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.
______________________________________________________________________

Intervening and Superseding Cause as Proximate Cause


Superseding Cause – prior actors are relieved of liability – breaks causal chain
Port Authority of NY v. Arcadian Corp (Unforeseeable Wrongdoing): Terrorists used fertilizer as
base to blow up World Trade Center. P says reasonably foreseeable use. D wins. Buyer was deliberately
misusing product outside scope of manufacturer’s duty.
- Defendant’s product not dangerous within intended use  misuse is not objectively foreseeable
(too remote)  intervening criminal acts of terrorists = superseding cause  Couldn’t say
warning would have changed terrorist’s actions
- No proximate cause – superseding actions of terrorists broke the chain of causation
Fast Eddie’s v. Hall (unforeseeable wrongdoing): Drunk guy leaves tavern and went and killed girl
who also had left tavern. Dram shop is a question here. Assault and murder are intentional acts which are
the result of assailant’s deliberate design – not foreseeable actions arising out of dram shop. Serving of
alcohol = too remote.
- Notion that patron would commit an intentional criminal wrong is not per se sufficient to render
that wrong chargeable to Fast Eddie’s
- Dram shop only puts provider on the hook for behavior that is foreseeable (within the risk)
 shooting someone not covered
- Difference between this case and Tarasoff: Special relationship that created affirmative duty
(Psychiatrist/patient/victim).
______________________________________________________________________

VII: WRONGFUL DEATH


- Modern changes: Overturned action personalis (idea that personal action dies with the death of
the person  death or P or D does not kill the claim anymore  can be pursued by the estate of
deceased P
- Survival Action: seeks compensation Decedent could have collected had they survived (other
than lost future wages) (injuries suffered by decedent during life). Could also get funeral costs.
Can get lost earnings until death.
- Wrongful Death Action: Compensation is sought by non-victims who suffer injuries due to
relative’s fatal tort claim. Derivative claim. Can recover
- Felony merger rule: no longer in play because murderer’s assets no longer go to the crown
- Wrongful death acts by extension of loss of consortium empowers new class of complainants 
immediate family members are entitled to bring wrongful death action
o WDA do not invoke new liability rules  operate through already recognized torts 
Did empower new class of people to sue
Nelson v. Dolan (wrongful death and survival claim together): P is suing after her son died in a car
crash where he was locked with D’s car and smashed into a pole. Court rules P can recover for pain and
suffering for the 5 seconds his bike was locked with D’s car (survival claim)
- Recovery for pain and suffering is impermissible in a wrongful death claim but permissible in a
survival action

______________________________________________________________________

VIII: DEFENSES – affirmative defenses to defeat Plaintiff’s case


Affirmative defense = defense that will defeat/limit liability on part of D
What can D do to escape liability?
- P misconduct  assumption of the risk  contributory negligence
- Contributory negligence: P’s failure to exercise ordinary care as to their own safety which helped
bring about their injury  burden of proof is on the D
o Duty to avoid one’s own injury at the hands of another

Contributory Negligence and Comparative Fault Chart

Traditional Common Law Rule (Contributory Complete defense – P recovers nothing unless D
Negligence) had last clear chance of avoiding event that
injured P

Divided Damages Traditional admiralty rule – pro rata – equal


shares – When two ships collide both suffers
damages (USSC rejects this as unfair)

Pure Comparative Fault Liability of each party is in proportion to that


party’s fault (i.e. reliable transfer) (fault of all
parties adds up to 100%) P<50% then P still
recovers whatever percentage of other party

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.
______________________________________________________________________
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
______________________________________________________________________
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
______________________________________________________________________

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
______________________________________________________________________
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

______________________________________________________________________

IX: DAMAGES & APPORTIONMENT


3 Components of Compensatory Damages:
1) Medical Expenses – Easily quantified
2) Future Medical Expenses – Need expert testimony
3) Lost income – what is P’s normal earning power
Non-economic: Pain & Suffering = Intangible loss  general damages  mental distress, disfigurement,
reduced life expectancy, loss of enjoyment of life
Smith v. Leech Brain & Co: Operator of galvanizing crane was burnt and he eventually developed
cancer at wound site and died. Employer argues no liability based on Wagon Mound (unforeseeable small
burn would cause cancer death of P). Court says “you take your victim as you find them”  burn was
foreseeable; doesn’t matter that cancer was not. The fact that the extent of risk was unforeseeable does
not matter.
- Thin Skull Rule: Tortfeasor cannot complain that the amount of damage caused to P was much
greater than anyone could reasonably have expected because of a hidden physical vulnerability in
P
- Rule: D may be held liable for damages in neg. where the victims type of injury was foreseeable,
even when the extent of such injury was not.
Kenton v. Hyatt Hotels Corp (Non-Economic Damages): two skywalks located above lobby of Hyatt
collapsed and injured many victims. One of them received 4 million in damages. D filed post verdict
motion that damages were excessive. Judgment was affirmed – damages were valid.
- Trial judges should not be using Remittitur to tweak jury awards by small amounts  SC orders
reinstatement of the damages
- Purpose of Remittitur = Gets the parties to settle
- Rule: An award of compensatory damages for permanent injury is not excessive where it
reasonably relates to the nature and extent of the injuries, the victim’s age, present and future
economic loss, and awards in comparable cases.

______________________________________________________________________

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)

Posner’s 3 Factors – How to measure punitive damages

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

______________________________________________________________________

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
______________________________________________________________________

Joint Liability and Contribution


When 2+ people are together legally responsible for injuring a plaintiff; how the courts allocate
responsibility and liability between or among them
1) P will recover 100% of damages provided that both D’s have funds to cover it
2) Indivisible injury rule: P could either ask D1 or D2 to pay full amount of injury if they can’t tell
which negligent act with the actual cause
3) D made to pay more than the other can bring claim against other party for restitution
4) If P is at fault and D2 is judgment proof  P may have to pay D2’s half or split between P and
D1
Ravo v. Rogatnick (Apportioning Responsibility vs. Damages): P severely and permanently disabled as a
result of brain damage suffered at birth. Where fault could not be allocated for brain injury resulting from
neg. acts of two doctors, injury was deemed indivisible – joint liability attached.
- Comparative fault is not rejection of joint and several liability – you can have both
- No proximate cause for specific injuries
- 2 doctors have to fight amongst themselves afterward to apportion who pays what  court
doesn’t care how P gets her money  one would have to pay all of it if the other was bankrupt
Bencivenga v. J.J.A.M.M. (unknown tortfeasor): P is blamed for pinching female in a club even though
it wasn’t him. 4 men came onto dance floor afterwards and punched P in the face. No bouncer intervened
before assault or gave him assistance afterwards. Bouncer said he didn’t remove D2 from club because he
“had juice”.
- D argued negligent conduct of others caused P’s injuries
o Court says Fault of fictitious person may not be considered when apportioning negligence
among parties to lawsuit (cannot recover from fictitious person)
o NJ – If club is more than 60% liable they are 100% liable for damages
- D must identify D2 to avoid paying entire damages amount
- Liability may not be apportioned to a fictitious defendant who is not a party to the suit
______________________________________________________________________

X. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS


Emotional Trauma without physical harm  Breach of duty is not to cause emotional harm in and of
itself
Wyman v. Leavitt (old physical impact rule vs. pre-zone of danger): Subcontractor carelessly blasted
rocks onto P’s property. P was allowed to sue and recover for property damages but not NIED because
there was no physical injury to P or P’s property
- Court will allow mental anguish for assault and battery  long standing recognition that assault
leads to emotional distress
Zone of danger test (replaced physical impact): can recover for NIED if you were in zone of danger
which caused fright/shock and suffered emotional distress. Must be close enough where you feared for
your own safety  adopted in Robb decision  must be in immediate risk of physical danger.
Robb v. Penn. Railroad Co. (Zone of danger adopted): P’s car got stuck on train track and she was
almost hit. Court said P could not recover under physical impact rule because she wasn’t really hit by
anything. Zone of danger – D’s negligence put P in zone of danger of physical injury  caused
fright/nervous shock  physical injuries  emotional distress. Can recover for NIED.
- Zone of danger based on the idea that court must give redress for tortious wrong
- P must be at scene when accident occurs. If accident occurs before arrival then cannot recover
because not within the zone of danger
- Courts are unwilling to trace out causal chains past zone of danger
Consolidated Rail Corp. v. Gottshall (Physical Risk Danger, ED as “injury”, FELA):
1) Gottshall was working in very hot conditions. Coworker passed out and died, others had to keep
working. P can recover for extreme anxiety/ED because he is in zone of physical danger
a. Still must establish prima facie case  breach of duty = conduct was unreasonable in the
face of a foreseeable risk of harm
b. FELA only says injury  does not distinguish physical & emotional
2) Carlisle suffered nervous breakdown from being overworked and stressed mostly due to
company’s negligence in not having enough workers. Cannot recover for failure to provide safe
working environment – danger was not physical/stress is not sufficient for FELA claim.
a. Not working under true averse conditions  outside zone of danger
- Gottshall may be able to recover using zone of danger theory; Carlisle cannot recover for
‘creation of a stressful work environment’  overwhelming job stress is not enough
- FELA: Claims under FELA apply the zone of danger test when P suffers an injury while
employed by a carrier. No worker’s comp – have to prove negligence of employer. Common
carrier is liable to person suffering injury when engaged in inter-state commerce.
Lineage for NIED Tests:
1) Physical Impact
2) Zone of Danger
3) Relative Bystander Test

______________________________________________________________________

Special Relationships in NIED


Some relationships create a duty to take reasonable care not to cause emotional distress to certain parties
- i.e. mortician mismanaging body
- telegram alerting of family member’s funeral carelessly not delivered
- common carriers duty to protect women from severe distress when in transit
Beul v. ASSE Int’l Inc: Foreign high school female was placed in a home with a host family. The father
of host family raped the girl and initiated an on-going sexual relationship with her. When their
relationship became public father killed himself. She sued the placement organization for NIED for all
that happened to her while in U.S.
- Tarasoff Breach
- School has no duty because by placing her ASSE assumed the rule of the parent  school is in
worse position to detect something is wrong
- Respondeat superior  company is responsible for the conduct of an agent of company
- Negligence per se could set standard of care  Federal agency guidelines  evidence of
unreasonableness  What is the custom here?
- Judge: Had agent been more diligent she would have discovered the secret relationship 
defense argues wouldn’t have mattered

______________________________________________________________________

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 is closely related to the injury victim

P is present at the scene when the injury occurs

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)

______________________________________________________________________

XI. STRICT LIABILITY


Plaintiff does not prove negligence or intent  “Liability without fault”  “absolute liability”; “Insurer
liability”
- Products liability is new manifestation of strict liability
______________________________________________________________________
Abnormally Dangerous (Ultrahazardous) Activities

Ultrahazardous Activities: Prima Facie Case (Ryland)

For his own purposes, bring on his land and collects and keeps it there

Anything likely to do mischief if it escapes

Must keep it at his peril


- If does not do so, is prima facie answerable for all damages that are natural consequence of
escape

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?

6) Danger weighed against value to community


______________________________________________________________________

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

§ 402 A Special Liability of Seller of Product

One who sells a product in a defective condition unreasonably dangerous to user is subject to liability
for physical harm if:

a) Seller is engaged in business of selling such a product

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)

You might also like