US Torts

Professor. Moore
Fall 2018
 Class One – Intro/Negligence

The purpose of torts is to remedy a wrong. This wrong is remedied by a compensation to the person that
was harmed usually through damages.

Basic Terms:
Injury = Invasion of a legally protected interest
Harm = Physical loss to person or property
Damages = Monetary measure of the injury

All torts are injuries, most of the time leading to damages (sometimes injunctions), not all involve harm.

Why do we have a fault-based system?

Hammontree v Jenner
Not going to apply strict liability to automobile drivers

- Plaintiffs Hammantree sued for PI and damages for a car crashed into their store as a result from the
Defendant losing control of their car because he was unconscious due to an epileptic seizure
- Started taking medication and didn’t have any seizures from 1955 until later down the line

Someone should not be liable for some event when they did not purposefully act, or a prudent
man would not have foreseen the possibility of harm

Principles of negligence govern personal injury cases arising out of automobile accidents

Strict liability for products is there because it is for revenue generating enterprises that CAN bear those
costs
o Manufacturers engaged in product liability are in the Business (Revenue generating) and thus
can bear the cost of injuries THAT IS NOT the case for the car crash because the epileptic is
NOT in the business

PARTIES AND VICARIOUS LIABILITY

Sometimes a person more than the one who sustained injury can sue → i.e. what if person dies

ALL suits in which person who is injured dies are statutory causes of action NOT common law causes
of action
• This means who you can sue/when you can sue/how you can sue is determined by statute
• The people who are in sufficient relation to that person have also suffered loss from absence
of that person and we will let them sue as well
o NOTE: common law said no but statute said yes
o Even if person survives an individual may have interest that may have been invaded and
thus may have an opportunity to sue

Vicarious Liability
Means liability coming through the relationship
• Reason you’re suing employer is because YOU think employer did something faulty
• Suing employer because employee caused harm and they want to establish liability vicariously
 o When suing employer thinking about – failure to supervise/failure to train, negligent
supervising
• D are held vicariously liable for the torts of other persons; example corporations, referred to as
Respondeat Superior, are the most common

Respondeat Superior → IDEA that responsibility of the superior for the act of the subordinate
Employers are vicariously liable for torts committed by employees while acting within the scope of their
employment; whether an employee is acting within the scope of her employment is ordinarily a question
of fact
• The question must be submitted to the jury “‘whenever reasonable minds may differ as to
whether the [employee] was at a certain time involved wholly or partly in the performance of [the
employer’s] business or within the scope of employment’”
HOWEVER, when the employee’s activity is so clearly within or outside the scope of
employment that reasonable minds cannot differ, the court may decide the issues as a matter of
law

- Christianson v Swenson
- The suit is not based on anything Burns did, the crux of the claims against Burns is purely that they’re
the employer. However, a plaintiff can allege that Burns was negligent for improperly trainings, etc...
- The theory of liability changes the evidence you need and changes the prima facie case
- 1) Is the person engaged in the conduct they were hired to do when caused harm?
2) Did the conduct occur substantially within the hours and spatial boundaries, and 3) was the
employees conduct motivated by the interest serving the employer?
Christensen v Swenson
TEST for vicarious liability
- Working an 8-hour shift with no scheduled break but employees are allowed to take 10-15-minute
lunch breaks. The employee decides to go across the street to get soup and on the way back to the
plant, gets into an accident where the plaintiff was riding a motorcycle. Christian (motorcycle driver)
brings the claim forward.
- Plaintiff wanted to ensure Burns (Swenson’s Company) was included in the suit because they have
more money but was Swenson in control of the company?

3 Criteria for Acting Within Employment (Birkner Test)

(1) Employee’s conduct must be of general kind the employee is hired to perform
(2) Employee’s conduct must occur substantially within hours and ordinary spatial boundaries of
the employment AND
(3) The employee’s conduct must be motivated, at least in part, by the purpose of serving
employer’s interest

Roessler v Novak
Difference between this and Christensen is that this is agent/contractor whereas Christensen was
employer/employee

- Independent contractor is doing something for the employer but it is NOT their line of work
- Doctors are independent contractors for the hospital in this case and a doctor is being sued for
malpractice and the plaintiff wishes to sue both the doctor and hospital
- Hospital argues that the docs are independent contractors and the lower court grants summary
judgement in favour of hospital
 - However, on appeal, they are technically independent contractors, but this is a case where the hospital
made it appear as though they are employees, it is “apparent agency”. Because the hospital made it
appear to be employees and relied on that without telling any patient or giving the patients a choice,
they were ACTING as employees despite being independent contractors.
- We need to look if there’s a genuine employer-employee relationship in determine when to apply
vicarious liability

An actor is responsible for the conduct of an agent when it has based on objective standard presented to
the world that the agent is acting on its behalf

Exception to independent contractors says that even if you have independent contractor relationship
we will still impose vicarious liability if 3 elements of apparent agency are met
• Question is → what did the employer of the independent contractor do? NOT what did the
person who got injured think, BUT rather what did employer of independent contractor do to
give off the appearance

THREE ELEMENTS OF APPARENT AGENCY:

1. A representation by purported principal
2. A reliance on that representation by third party
3. A change in position by the third party in reliance on the representation

- Vicarious liability is very important because it determines who can be sued for tortious behavior beyond
those who committed the tortious behavior.
- Negligence has a longer statute of limitations
- Intentional torts generally have shorter statute of limitations
- Strict liability = liability based purely because of relationship
- You recover for all current, future and expected damages in one suit at one time
- In a fault system, you need to think of what is reasonable to afford negligence?

Class 2 – Negligence Principle

There needs to be something faulty or wrongful in order for us to shift the loss
Negligence is used to refer to the issue → breach of the standard of reasonable care

Brown v Kendall (Fault as basis of liability)

Brown v Kendall
Starting point for modern tort system because IT IS ALL ABOUT FAULT
- Action for trespass for assault and battery, originally against Kendall who died pending the suit.
Plaintiff accidentally hit D in the eye with a stick he was using to beat two dogs who were fighting
each other.
- At this point, this signified a change where we think the system is fault-based and this is what the
plaintiff has to show from herein. What is essential to trespass is whether we can say the person who
engaged in the conduct did so with care.
- Liability based on direct application of force. It is the plaintiff’s burden that the D wasn’t’ using
ordinary care.
Question ALWAYS going to be: Did defendant act with care or not, and did Plaintiff show this (P has
burden of showing defendant acted with fault)
• P must demonstrate each element through preponderance of the evidence
 When a Defendant unintentionally injures another while undertaking a lawful act, the Plaintiff must
prove that the Defendant acted without due care as adapted to the exigencies of the circumstances. If
you weren’t using ordinary care, then you are in fault.

Defendant must act with ordinary care – which varies with circumstances however, it is the care of a
prudent and cautious man such as is necessary to guard against probable danger

2 Species of Fault: (1) Intentional and (2) Unintentional

Plaintiff must prove each element of the

crime by a preponderance of the evidence. Defendant attacks the plaintiff’s prima facie case.
- Is there a fact that satisfied each element? Is there a defense that the defendant can raise?

Why do we have a fault-based system?

- An idea of holding people liable whenever they cause harm unless they can absolve themselves by
showing it wasn’t in their control, using beyond ordinary care (extraordinary care) or somehow compelled
to do it, the concern is that the risk of liability greatly constricts human activity.
- Means failure to exercise care

These next cases determine what “fault” is

THE CENTRAL CONCEPT – STANDARD OF CARE (MEASURING STICK)

Adams v Bullock
ON EXAM: DO NOT WRITE DUTY TO ENSURE → because there is no duty to ensure since ensure
means to guarantee
- Defendant runs a trolley line in Dunkirk. P (12-year-old boy) came across the bridge swinging a wire
that came into contact with D’s trolley wire. P was shocked and burnt when the wires came together.
Negligence not found because the D was in lawful exercise of the trolley. Reasonable care in the use
of a destructive agency imports a high degree of vigilance.
- The trolley company was there was no negligence. The judgment was reversed on the grounds that
there was no negligence. In order to show that the trolley company failed ordinary care, they would
have to show foreseeability to the danger. The answer is that there was not. As a matter of law, you
couldn’t hold the trolley company liable.

Rather, measuring stick is the duty to use reasonable care (means you do not have to prevent all
type of harms but ONLY those which can be foreseen)

United States v Carroll Towing

Tells us how to determine what reasonable duty of care is from above case
B(burden) < probability of incident X gravity of harm
 - Plaintiff had a barge that was undocked and held them liable for not having an attendant aboard the
barge when it broke free from the pier.
- The cargo on the barge was flour owned by the US
- Negligence in securing one boat to a harbour. Rope later broke and boat rammed against a tanker.
Tanker’s propeller broke and hit the bottom of the boat, causing it to sink with all of its cargo. Trying
to give an intuitive response to what is reasonable.
- US suing because the cargo lost was owned by the United States. The fact that it is on the waterway
explains why it is actioned in federal court because it is an admiralty case. This adopts tort principles of
liability for loss on the water. Apportioning liability based upon fault that turns out to be where most of
the state’s end up going.
- The plaintiff’s employee wasn’t on the barge for 21 hours prior to the accident. Nobody was there to
notice the barge had a hole.
- The negligence that the defendant was alleging was that the bargee wasn’t there. Was the barge
company using reasonable care when they were absent? Judge tells us how to figure this out.

Hand suggests we take three different considerations in mind (see note below).

Balancing test to determine whether a breach of duty of ordinary care occurred → MOST courts
employ Judge Hand’s formulation: a comparable risk-benefit model
An actor is in breach if the burden of taking measures to avoid the harm would be less than the
multiple of the probability of the kind of incident in question times the gravity of the harm
should it occur, or B(burden) < probability of incident x gravity of harm
IN ENGLISH
Compare how much would it cost me (economically) to make a change in the situation to
make it safer, compared to how big of a difference that change would have in decreasing
the risk. If you think that the reduction in risk is greater than the costs the precautions should
take this is what a reasonable person would do. This is because we are cost effective harm
avoiders. Although harm may have occurred, defendant will not pay for it.

For example: door with lock vs. door with chain and lock

**Measure the magnitude of the loss if an accident occurs, the

probability of the accident’s occurring, and the burden of taking precautions that would avert it. If the
product of the first two terms exceeds the burden of precautions, the failure to take those precautions is
negligence (page 49). Plaintiff is showing what the defendant did, here’s how much it would have cost
them to be reasonable, and here is the likelihood of harm and loss based on what D did, and here is how
much it would fall if they did what they said they would.
- If the drop in the probability x the loss is greater than the burden, that’s what a reasonable person would
have done.

McCarty v Pheasant Run Inc.

- Room had a glass door, someone entered through the glass door and assaulted the tenant there
- The claim the P made was that the D should have made sure door was locked, should have warned her,
more security guard, etc. Jury verdict for the D, and P moved for judgment notwithstanding judgment. D
succeeded on appeal. They took all the suggestions and explained why there would be no reduction to the
risk of harm and in addition it entailed additional cost.
- While the Hand Formula theoretically makes a great deal of sense, ordinarily the parties involved do not
give the information necessary to conduct the test accurately. However, he says that it is still a good
measure and can be used to attempt to make judgments of reasonableness. The formula has greater
analytic than operational significance.

B = burden, P = probability of harm & L = loss

Class 3 – Proof of Negligence

Key Issue of Negligence → The idea that there is this standard of care that the law applies to all of us,
and that that standard of care separates conduct that is faulty, from conduct that is not faulty
• Therefore, conduct that you would be liable if you have caused harm vs. conduct that you won’t
be liable if you caused harm

WHEN IT COMES TO DECIDING THE MEASURING STICK:

• Objective Standard → not predicated on any one particular person
• How we do it → look at the conduct, and look at alternatives to that conduct that might prevent
the risk of a harm occurring and then they engage in a balancing and they balance how much
would it cost me or person to take this approach instead of the approach I took (monetizing it),
and how much would the risk of harm and the amount of harm (magnitude) drop, AND if we
think the reduction in the risk is greater than the cost then a reasonable person should take those
precautions.

Bethel v New York City Transit Authority

- Imposed a duty on common carriers of the exercise of the utmost care, so far as human skill and
foresight can go for the safety of their passengers. Asks whether the duty of the highest care should be
applied as a matter of law to common carriers: IT SHOULD NOT.
- P was hurt on D’s bus when the wheelchair accessible seat collapsed under him. P could not prove
that D actually knew of the defect but relied on a theory that days before accident adjustments were
made. P said proper inspection during these repairs would have revealed the defect.
- If you can foresee some harm to somebody, you should exercise some control to prevent it
- The burden the operator is under is different than the information that the plaintiff knew.
- We don’t expect a private carrier to have the same level of care as a transportation authority because
they are in the business of providing that care

Common Carrier Rule → an objective reasonable person standard

 The rule of a common carrier’s duty of extraordinary care is no longer viable.
• Rather a common carrier is subject to same duty of care as any other potential tortfeasor –
reasonable care under all the circumstances of particular case
• Tort law says that they would rather have a flexible standard that can be applied to multiple
scenarios rather than a different standard for each situation

Mental Ability
• Vaughan v Menlove (First instance of the test of the “reasonable person” as the correct
method used in negligence) → We are not going to make accommodations for people’s
assertions that they are somehow mentally limited either as a general description or as a
diagnosable matter – as a reasonable person that yardstick will be applied to ALL OF US and
we will all be expected to have a standard of mental capability

Physical Ability
• Roberts v Ramsbottom → Physical disability can be accounted for and defendant will have that
measuring stick tailored to suit that particular physical disability
- Since it’s more apparent to us, the disease is identifiable and therefore more comfortable to administer
exceptions through tort law

Children
• Blended Standard → Will be child of same age, intelligence and experience but not the same as
saying that we are going to compare this child to another
• The tailoring of the standards through physical disability and children is still utilizing an objective
standard but the standard has been altered slightly AND the jury can decide “a child of like age,
intelligence and experience would’ve done something different
- Standard of care should be altered to children below age of six because they are unable to comprehend
the risk. Past the age of 7-14, they presume you can’t balance BUT the plaintiff can rebut this by bringing
in a child with like age, intelligence, maturity and experience that could understand the risk of behaviour
and therefore shows that the child should have done something
- If a child is engaged in an inherently dangerous or adult activity, they may be held to the same standard
of care as an adult

Superior Attributes
• If somebody has better than average abilities, they are required to exercise the degree of care that
a reasonable person in their field with their abilities would exercise under the circumstances
• Essentially heading back to extraordinary care
- We expect that a surgeon with 20 years of experience has accumulated information about risks and uses
that information to guide their judgement
- The objective standard is the minimum, but it is not a ceiling

PROOF OF NEGLIGENCE

Baltimore & Ohio Railroad v Goodman

- Goodman (Plaintiff) was struck and killed by Baltimore and Ohio R.R.’s (Defendant’s) train when
Plaintiff crossed a train track. Defendant argued that Plaintiff’s own negligence caused his death.

A judge should direct a verdict against one who was injured because he failed to take reasonable
precautions to guard against a known risk. In an action for negligence, the question of due care
should not be left to the jury when it can be resolved by a clear standard of conduct
Commonplace between 2 cases is we are evaluating Plaintiff’s behavior, and we aren’t really looking at
D’s failure to adopt duty of care
• Whether P failed to exercise care in his own safety of crossing the tracks with the outcome being
that if he failed – he loses
• Essentially these are first 2 cases dealing with contributory negligence
- In Goodman, the plaintiff had a clear sight of 18 feet where the train was visible and therefore lacked the
proper exercise of his own safety

Pokora v Washbash Railway (Limits application of Goodman Opinion)

Plaintiff was killed while attempting to cross Wabash Ry. Co.’s (Defendant’s) four railroad tracks.
Plaintiff did not get out of his vehicle to obtain a better view as required by the opinion in Baltimore &
Ohio R.R. v. Goodman.

There is an absolute duty to stop, look, listen, and to get out of your car if your view is obstructed and
you cannot otherwise be sure that a train is not dangerously near before crossing a railroad track, but
only in instances whereby sight and hearing become inadequate for traveler’s protection.

To get out of a vehicle is uncommon precaution, as everyday experience informs us. The actions of a
plaintiff depend on the situation and the circumstances, and it is up to the jury to decide whether
a particular course of action was reasonable

Extraordinary situations may not wisely/fairly be subjected to tests/regulations that are fitting
for what is common-place or normal → **in default of guide of customary conduct, what is
suitable for traveler caught in a mesh where the ordinary safeguards fail him is for judgment of a
jury

Andrews v United Airlines

Distinguished from Bethel because still has sense of extraordinary standard of care
Case opposite spectrum of Pokora and Baltimore
Case occurred in California which has higher threshold for common carriers

A common carrier has heightened duty of care (utmost care) due to fact that passengers are
completely dependent on them for safety precautions → This is a California interpretation of
duty, not federal

The question is whether or not a warning is enough to safeguard airline passengers from baggage
falling out of overhead bins. Given the heightened duty of Defendant, a common carrier, the court
thought the question ought to go to the jury. A reasonable jury might conclude Defendant should have
done more. A reasonable jury might also conclude that Defendant did enough. In any case, summary
judgment is inappropriate
- Defendants argue that only 135 out of hundreds of thousands of passengers were injured, although, it
wasn’t clear what the loss to these 135 was and how severe it was. The magnitude of the loss should be
a question for the jury to make such a determination
- If you have an aspect of the balance missing, then you may get a grant of summary judgement for this
failure
Role of Custom
Trimarco v Klein

- Plaintiff breaks glass before he’s gonna shower that was built against customs and practices
established at the time – To show that the custom was to do away from the glass, they would bring an
expert to show there was no compliance with the acceptable safety standard

Case demonstrates that custom and practice CAN be important in evaluating the appropriate standard
of care in negligence cases. However, even after such custom and practice are established, adherence or
non-adherence thereto is not conclusive proof of liability or innocence
• Proof of existence of a custom and practice coupled with evidence showing adherence to it
may establish one has acted with due care
• Proof of existence of a custom and practice coupled with evidence showing failure to adhere to
it may establish liability
Custom is relevant but not outcome determinative, it becomes outcome determinative when you decide
that the evidence more likely than not that the defendant was unreasonable. Meaning, more likely than
not there was a better way to avoid harm but didn’t take it.

Custom and usage is great evidence of what ought to be done but it must still be reconciled with
the reasonable person standard. Custom and usage is not conclusive evidence of negligence

The Role of Statutes

• Negligence per se (in and of itself) can be conclusive → Negligence per se has some conclusive
effect – allows P to succeed and not have to worry about jury deciding what is reasonable if P can
show that D breached an obligation established by statute
• Then burden shifts to Defendant
o Jury doesn’t get to consider whether they think it’s reasonable or not
o NOTE: not every jurisdiction accepts this evidentiary weight (i.e. Michigan does not
accept negligence per se as conclusive evidence, rather they just deem it evidence)

o Burden is then OFF P for those elements and on to D to show that there is some reason why
the violation of the statute ought to be excused (Tedla v Elman)
• NOTE: just because somebody fails in their negligence per se suit THAT DOES NOT
NECESSARILY mean that the case fails – it just means that the attempt to try and get judge to
end case without going to jury has failed, BUT case can still go in front of a jury as a standard
claim

NOTE: important limitation is that WHEN P wants to use statute to establish negligence per se must
establish that the harm they claim should’ve been prevented IS THE HARM that the statute seeks to
prevent (De Haen v Rockwood)
• Another LIMITATION → is the person who is harmed within the class of people that the statute
is meant to prevent harm from (Rushink v Gerstheimer)
• BOTH limitations are the Plaintiff’s burden to establish before negligence per se
Martin v Herzog
Narrow Statutory Interpretation
- Defendant drives at night and crosses middle line hitting a buggy on the incoming lane. The
defendant is claiming that he shouldn’t be liable because the buggy had no lights which is against the
law (uses it as a shield)
 The jury may not discount a breach of a statutory duty. The question of duty is a question of law. The
jury is the trier of facts. Plaintiff wrongfully violated a statute intended for the protection of Defendant.
Plaintiff is negligent per se. The only thing left to determine is causation and injury. If Plaintiff’s
failure to light the buggy was the cause of the accident, then it is contributory negligence.

- Cardozo is saying that the evidence of a breach of the statute IS conclusive as to whether there’s been
a breach of the duty on the part of the plaintiff for his own safety (reallocation of damages to plaintiff)

ON EXAM DISTINGUISH → Martin and Tedla

Tedla v Ellman
Flexibility of Statutory Interpretation

If statute is just a codification of a CL rule exception or if it was intended to promote safety but
following would have been less safe, then deviation from rule is not negligence
- It’s not enough to show that there was a statutory breach, but that the physical harm of not complying
was greater than complying – Who’s burden is this?
Illustrates idea that in spite of existence of statute it is not going to capture what is reasonable. OR the
person who statute is being applied against can say yes, but there is an excuse (like a defense)
• In particular circumstances it may well be that non-compliance is the safer thing to do!
- You’re saying the legislature, looking at the circumstances, has done the balancing and wrote down in
the statute what’s reasonable and not reasonable and that’s why it should be used for this purpose and
what lies behind those purposes for what the statute should be used

PROVING NEGLIGENCE WITH CIRCUMSTANTIAL EVIDENCE

There may be circumstances in which a breach happens, but the Plaintiff does not have any evidence.
However, we are not going to make the Plaintiff get any evidence
- Do I know what the defendant did or didn’t do to cause the harm? Do I have evidence of what they did
or didn’t do? If no, then you’re in THIS arena of using inferences. This is an opportunity for the plaintiff
to get the benefit of an absence of evidence in order to satisfy the prima facie case
Negri v Stop and Shop
A store has a duty to protect invitees from known or concealed dangerous conditions

If supermarket SHOULD have noticed the fault or spill, then supermarket is liable for damages
for the injuries incurred by customers

To constitute constructive notice, a defect must be visible and apparent, and it must exist for a
sufficient length of time prior to the accident to permit defendant’s employees to discover and
remedy it. The circumstantial evidence was sufficient for a jury to determine if a slippery
condition existed long enough to give employees sufficient notice to discover and remedy the
condition
• Circumstantial evidence is permitted in this case to show that the defendant had constructive
notice of the dangerous condition

Gordon v American Museum of Natural History

Circumstances that Plaintiff in Negri pointed to are not present here and no proof of constructive notice
here – circumstantial evidence not sufficient here

The mere presence of a hazard is insufficient. RATHER, a hazard over sufficient amount of time
becomes sufficient. Sticks to the principle in Negri that a condition must exist long enough to give
 employees sufficient notice to discover and remedy the condition, that was not present in this
case.

Byrne v Boadle
First use of term res ipsa loquitur

The plaintiff does not have to eliminate all other possible causes for the harm, nor does the fact that the
defendant raises possible non-negligent causes for the harm defeat plaintiff’s effort to invoke res ipsa
loquitur (Latin for “the thing speaks for itself). The key is that a plaintiff must persuade a reasonable
jury that more likely than not the harm-causing event does not occur in the absence of negligence
- A barrel falling out of a window from the house just screams some type of negligence on the part of
the defendant.
- Barrels don’t usually fall out of windows, and the defendant has control of the instrumentality and
therefore that’s enough to bring forth a finding of carelessness and negligence

Res Ipsa Loquitor “the act speaks for itself” is applied under the following conditions: In certain
cases, and in the absence of direct or circumstantial evidence, and as a matter of public policy,
the plaintiff will be permitted to plead the probability of negligence, 3 elements must be met:
1) The accident must be of a type that normally would not occur without negligence on someone’s
part
2) Neither the plaintiff nor any third person contributed to or caused in the plaintiffs’ injuries.
This maintains the integrity of the probability of the negligence pointing to the defendant
3) The source of indicated negligence falls within the scope of duty owed to the plaintiff by the
defendant. This is usually shown by the exclusive control of the instrument causing the injury or
by an inability to identify a specific source of harm. It is usually found in groups responsible to
the plaintiff and not willing or unable to divulge the actual source of harm

Class 4 – Proof of Negligence Continued

HOW TO ANSWER A TORT CASE

1. Is there a duty? (Question of law)
• No duty, no suit
• Was there a duty owed, if not, “don’t say anything else”
→ there was no duty owed, therefore there is no liability. → broad legal questions
2. Was there a breach? (Question of fact)
• Fact and case specific questions
• Two key issues that tort law uses to decide if a duty of care exists or not:
• 1) what kind of relationship did the parties have?
• 2) did the other person engage in the kind of conduct that is the risk to the plaintiff?
3. Cause in fact
4. Harm
5. Proximate Cause

Res Ipsa Loquitur → Occurrence of accident implies negligence – “the thing speaks for itself”

QUESTIONS TO ASK FOR RES IPSA LOQUITUR

1. Is there direct evidence? If there is direct evidence IT IS NOT A RES IPSA LOQUITUR
CASE
 - Look at the cause you want to assert as the breach of the duty and compare it to the other sorts of
causes that might be out there and engage in the debate as to whether this one I’m identifying rises
above all the others in terms of likelihood
- Could there have been evidence available for the jury but someone failed to exercise appropriate
care for that evidence?

McDougal v Perry
Facts - Plaintiff driving behind tractor trailer, the tire fell off that trailer, it bounced in the air and
crashed into the windshield of plaintiff’s Jeep Wagoneer
- Tire was held into place by its own weight, secured by a four-six-foot-long chain with one-
inch links wrapped around the tire → chain is the original chain and attached to the trailer
by a latch device
- Perry inspected the chain but admitted he didn’t check every link
Issue
Holding - Holding in favour of the plaintiff – accident would not have occurred but for the failure to
exercise reasonable care by the person who had control of the spare tire
- There is an inference that a tire attached to a truck will stay attached unless there is some
negligence on the part of the owner
- The plaintiff does not need to eliminate with certainty all other possible causes or
inference, only provide evidence from which ha reasonable person can say that on the whole
it is more likely that negligence was associated with the cause of the event than not
- Liability didn’t extend to the manufacturer because the court found that while the product
was in control of the defendant’s hands, they failed to take reasonable care of maintaining
the product
Ratio Res ipsa loquitur → applies to rare occurrences where accident itself is evidence upon
which to base an inference of negligence
• Rationale → wheels do not leave vehicles unless there is somebody at fault in
securing the wheel

Accident is not enough – it needs to be an accident coupled with common circumstances as

to how harm comes about to allow res ipsa loquitur to apply
• For doctrine you must show – the defendant had control or SUPERIOR
KNOWLEDGE of the evidence and harm occurred

The mere fact that the accident occurred does not always warrant the application of the
doctrine. But in rare instances the fact that the accident occurred, along with a showing of an
immediate precipitating cause, permits the inference of negligence. In this case, the spare
tire would not have come loose had the Defendant exercised reasonable care when
inspecting his vehicle and therefore ‘res ipsa loquitur’ applies, and the Defendant is liable.

Spoliation of Evidence
3rd party negligent spoliation claims are conditioned on:
1) actual knowledge of “pending or potential litigation” on the part of the spoliator;
2) A voluntary undertaking, agreement, or specific request establishing a duty; and
3) Evidence that the missing evidence was vital to the underlying claim

Ybarra v. Spangard
Facts - Action for damages for personal injuries alleged to have been inflicted on plaintiff by
defendants during the court of a surgical operation
 - After a surgery the plaintiff testified to having a new pain on his right arm or shoulder and
the injuries got worse spreading down to the lower part of his arm. He developed paralysis
and atrophy of the muscles around the shoulder
- Doctor believed that the pain was a result of trauma or injury by pressure or strain applied
between right shoulder and neck
Issue - Can the doctrine of res ipsa loquitor be applied to multiple defendants or instrumentalities
Holding Defendants argue 2 things: 1) there are multiple defendants that all share a division of
responsibility in the use of an instrumentality causing the injury & so res ipsa loquitor can’t
be applied to them
2) When there are several instrumentalities, and no showing is made as to which caused the
injury or to the particular defendant in control of it, the doctrine cannot apply

Court says that there’s no doubt that a patient is likely to come under the care of a number
of persons in different types of contractual and other relationships with each other.
However, they do not believe that either the number or relationship of the defendants alone
determines whether the doctrine of res ipsa loquitur applies
- Every defendant in whose custody the plaintiff was placed for any period was bound to
exercise ordinary care to see that no unnecessary harm came to him and each would be
liable for failure in this regard.
- The court adopts “right of control” over “actual control”. Where a plaintiff receives
unusual injuries while unconscious and in the court of medical treatment, all those
defendants who had any control over his body or the instrumentalities which might have
caused the injuries may properly be called upon to meet the inference of negligence by
giving an explanation of their conduct
- Doctrine is used to infer malpractice and causation → Burden shifts to defendant to show
that they weren’t careless and weren’t the cause of the injury
Ratio Res ipsa loquitur CAN apply when multiple defendants are involved (i.e. hospital)

Very broad interpretation of res ipsa loquitur:

“the doctrine of res ipsa loquitur has three conditions:
(1) the accident must be of a kind which ordinarily does not occur in the absence of
someone’s negligence;
(2) it must be caused by an agency or instrumentality within the exclusive control of the
defendant;
(3) it must not have been due to any voluntary action or contribution on the part of the
plaintiff. It is applied in a wide variety of situations, including cases of medical or dental
treatment and hospital care.”

NOTE: some jurisdictions will add a 4th requirement (Michigan does this → plaintiff
has to show Defendant IN possession of greater knowledge of the cause of the harm)
Res ipsa loquitor falls on the duty aspect of the prima facie case, you don’t need res ipsa loquitor in the
Summers v Tice case because their action raises an inference of negligence → the problem then lies on
causation.
- Ybarra falls on the problems in summers v tice and the problem of proving breach, but summers only
has the one

Medical Malpractice Negligence

- The conduct of a defendant in a negligence suit is measured against the conduct of a hypothetical
reasonably prudent person. However, in medical malpractice cases the courts have required that the
specialized knowledge and skill of the defendant must be taken into account
- The question of whether the defendant acted in conformity with the common practice within his
profession is the heart of the suit
- The plaintiff must affirmatively prove the relevant recognized standard of medical care exercised by
other physicians and that the defendant departed from that standard when treating the plaintiff
- In a malpractice case, it’s the expert’s job to tell the jury what’s reasonable
- For lawyers you’re proving malpractice on the attorney’s part AND that you would have won your case
had that negligence not occurred

Sheeley v. Memorial Hospital

Facts - A second year family practice resident performed a procedure which resulted in
complications leading the plaintiff to sue the doctor and hospital
- Trial court disallowed the defendant’s expert witness because although they had worked in
that given field, they were not doing so at the time of the incident
Issue - What is the appropriate standard of care to be applied in medical malpractice cases?
- Who can qualify to testify?
Holding - The court revisits the standard of care principle in medical malpractice cases. Where the
court originally considered a synonymous duty with those that are commonly possessed by
other members of the profession who are engaged in the same type of practice in similar
localities having due regard for the state of scientific knowledge at the time of treatment
- The expert testifying must be from the same community as the defendant
- The court finds this rule to be too restrictive. The standard should be compared with
any doctor with knowledge of or familiarity with the procedure, acquired through
experience, observation, association or education – The locality rule no longer applies
in modern medical malpractice cases
Ratio Aiming toward broader definition of WHO can ‘qualify’ as expert
- Movement away from same or similar locality rule

Differences Between Tort Claim and Medical Malpractice Claim

1. Problem is talking about group of jurors evaluating if there is a liability when they
don’t have the expertise that the defendant has so they cannot engage in weighing
the way that they normally would if dealing with any other claim → going to need
somebody who can explain that to juror (i.e. expert)
2. What is being evaluated is whether or not the defendant used reasonable care → the
role of the expert in a malpractice case explains the standard of practice, and
why defendant breached the standard of practice → they have to tell the fact
finders (aka the jury) how to balance the factors
o Juries job is then to decide which expert they believe → expert has to do the
weighing for the jury, so they have to explain what the breach is → This is
the main difference with experts and medical malpractice cases

Problem with same or similar locality rule

• Courts now adopt the same or similar locality rule which allows for expert
testimony from similarly situated communities to testify concerning the appropriate
standard of care. However, this does not need to be identically situated
o Due to societal changes, the old traditional rule which requires identically situated
parties in order to be an expert witness no longer fits the present day medical
malpractice cases
• NEW STANDARD → Thus we have moved from the same or similar community
test in favor of a national standard and hold that a physician is under a duty to
use the degree of care and skill that is expected for a reasonably competent
 practitioner in the same class to which she belongs, acting in the same or
similar circumstance

Court discussed this statute that adopted the language: “knowledge, skill, training, or
education in the field”

Matthies v. Mastromonaco
Facts - 81-year-old plaintiff went to hospital for a broken right hip, the doctor recommended bed
rest rather than surgery
- At trial, the jury charged the doctor for malpractice for failing to perform the surgery but
was reversed on appeal
- Mastro offered many reasons why he didn’t want to perform the surgery and why bed rest
was the right course of action; however, Matthies’s expert, Dr. Hervey Sicherman a board
certified orthopedic surgeon testified that this was the wrong course of action
- Mastro’s witness believed that some of Matthies’ complications could have been avoided
had the surgery been done but ultimately agreed with Mastro’s decision. Mastro wanted to
prevent the most possibility of injury that Mastro might sustain in the surgery
Issue - Does consent apply to only invasive surgeries?
Holding - The court holds no. informed consent applies to both invasive and non-invasive
procedures
- In informed consent analysis, the decisive factor is not whether a treatment alternative is
invasive or noninvasive, but whether the physician adequately presents the material facts so
that the patient can make an informed decision
Ratio Plaintiff not here saying that Doctor performed a bad surgery BUT rather didn’t provide her
with information of how controversial ‘bed rest’ is

Relationship between doctor and patient is the relationship that creates duty in the
first place

It is not enough for doctor to give competent advice, doctor must also inform patient of
all alternatives and possibilities so that patient can make up own mind. Must also be told
of all risk. “The test for measuring the materiality of a risk is whether a reasonable
patient in the patient’s position would have considered the risk material.”

Under this standard, a physician is obligated to disclose only that information which is
material (happens enough, and a reasonable person would want to know about this) to a
reasonable patient’s informed decision. The court held that D was under a duty to inform P
of medically reasonable treatment alternatives and their probable risks and outcomes

The reason we differentiate medical malpractice cases from regular malpractice cases
is because we don’t want the profession deciding what to disclose in terms of the risks,
we want the regular patient to get to decide
- Plaintiff has to show: “had I been informed, I would have done something else and therefore wouldn’t
have encountered the natural consequences of the treatment picked”
- There’s a difference between a professional standard of care and an ordinary standard of care (we trust
professionals to appropriately weight out burden and ‘Profit x Loss’)

Class 5 – Duty
FIRST element of negligent suit
Starting point for tort claim: is there a duty?
 NO DUTY means no basis for liability → this would suffice on exam if no duty present

- Duty in tort law is most clearly associated with protecting against physical loss to person or property
that is harmed
- Nonphysical loss can be included in the notion of ‘duty’ but only in limited circumstances
- This is a topic of WHEN the law will apply the measuring stick

Questions to ask for whether to impose a duty of care or not?

1. What sort of relationship do the parties have?
2. Did the other person engage in the conduct that we would say IS the conduct that generated the risk to
the Plaintiff to begin with?
- Outside of those two, the law says no duty was offered to them

Affirmative Obligations to Act

Harper v Herman

- Herman had 4 guests on his boat, Harper was one of them

- Harper dove from Herman’s boat into shallow water and sued claiming Defendant had a duty to warn
him that the water was shallow

A special relationship is required for an affirmative duty to exist

“Superior knowledge of a dangerous condition by itself, in the absence of a duty to provide protection,
is insufficient to establish liability in negligence.”  should have known the “dangers of water.”

There is not necessarily a list of factors to determine special relationship or not RATHER there is a set
of competing terms that will help you decide:
• Is someone compensated to protect someone from a risk?
• How many people is one assuming the risk for?
• Taking control over somebody else? Whether person is deprived of normal opportunities to
protect themselves?

Farwell v Keaton
Undertaking
This case is an island of itself – hasn’t really been relied upon -- instead of following this most courts
say we will let the jury decide

- Six boys chased Farwell and Siegrist back to a trailer lot

- Siegrist escaped, but Farwell was severely beaten.
- Siegrist found him under a car, put ice on his head and then drove around for two hours, Siegrist
drove him to his grandparents’ home, where he left him in the back of the car after an attempt to arouse
him
- Farwell died three days later from the beating and there was evidence that prompt medical attention
could have prevented this

When an actor voluntarily acts in way designed to reduce the risk to which others may be
exposed, a duty of reasonable care exists if the actor increases the risk of harm or if others rely
on actor’s undertaking
 Every person has a duty to avoid affirmative acts that make a situation worse. If a party attempts to aid
another AND takes control of the situation he/she is regarded as having voluntarily assumed
responsibility for that person

NO legal obligation to be good Samaritan – but once you start if you make it worse you cannot stop
because you’ve assumed control and thus have a duty

What sorts of connection between plaintiff and defendant is sufficient to have an obligation to the
plaintiff?
- The SC of the US does not render decisions generally that take effect on all states unless it’s a
specialized situation

Randi W. v. Muroc Joint Unified School District

FACTS
-The plaintiff, Randi, accused four school districts writing letters of recommendation for a teacher they
knew to have a history of sexual misdeeds with students.
-Randi alleged that she was sexually assaulted by Gadams, an assistant principal who had received a
job at her school.
-The previous school districts knowingly concealed Gadams’ past allegations and resignations for
sexual misconduct with students
- There’s no real relationship between the plaintiffs and defendants

PROCEDURAL HISTORY
- The only issues discussed here are those of misrepresentation and fraud.
- The superior court granted demurrers (dismissal) on both counts to defense, court of appeals
reversed.-Plaintiff appealed to supreme court.

ISSUE
Under CA law, does negligence arise from non-disclosure of past sexual misconduct when a teacher
sexually assaults a student at a new school after being hired due to letters of recommendation that do
not explain his resignation and/or allegations of sexual misconduct?
Must decide under what circumstances courts may impose tort liability on employers who fail to use
reasonable care in recommending former employees for employment without disclosing material
information bearing their fitness?

HOLDING
-Yes. The schools had a duty to inform the hiring school of those qualities that could possibly cause
harm to a third party.
- it was found that although policy considerations state ordinarily that employers should not be held
accountable to third persons for failing to disclose negative information regarding former employee,
liability may be imposed if the recommendation letter amounts to an affirmative misrepresentation
presenting a foreseeable and substantial risk of physical harm to a third person.

Did defendants owe a duty of care?

-Defendant argued that there was no special relationship present that required them to disclose.
- Courts have held in previous cases that if you begin to communicate information, you are required to
deliver all pertinent information.

ANALYSIS
Foreseeability of harm to the P, and connection between harm and D.
Availability of insurance or alternate courses of conduct.
Public policy considerations (moral blame, preventing future harm, etc.)

Foreseeability: When examining whether a duty extends to third parties, you need to consider the
foreseeability of harm to the plaintiff
• Assault was reasonably foreseeable.
• Defendant’s actions form a causal connection to the assault.
• Availability of Insurance (Insurance existed; standard business liability).
• The defendants had alternate courses of conduct they could have pursued:
1. They could have refused to write a letter of recommendation.
2. They could have written a letter of full disclosure.
3. They could have written a no-comment letter.

Public Policy:
• The disclosure owes to a third person not to misrepresent the facts;
• Not disclosing the whole truth is in fact, lying, or misrepresenting. If it is understood to be the
whole.
• Could be characterized as morally blameworthy.

Misleading or Misrepresentation?
The fact that omissions were made in this case allows for the exception to the rule excluding liability
for mere non-disclosure or failure to act. → absence of a duty to speak does not allow one to speak
falsely. Because they chose to speak about the parolee to the victim, they had a duty to use reasonable
care in doing so.
- They made a partial representation that formed the entire representation which is improper and
therefore was a misrepresentation

Question is if there is a duty to the third party. No relationship between plaintiff and defendant to have
a special relationship. Is there a sufficient basis to inform this district? It was found that there is no
duty, although if they do make a representation, then there is a duty to make it accurate, and not have
misrepresentations. If you begin to inform you must give all pertinent information.

Duty is generally a question of law, but in certain situations it can be a question of fact based on certain
factors. Just because you have a duty, then you must exercise whether the defendant lived up to the
duty (measuring stick), this is a question of fact.

This is one illustration of the applications of common law considerations that go into establishing a
duty and notice it is not an absolute duty, it is a limited duty. It is limited because of the relationship
between the plaintiff and defendant.
- You need to ask if there have been any disclosures. This case does not stand for a general duty to
disclose information. If a disclosure has been made, then it is the responsibility of the district to give
the full truth

Tarasoff v. Regents of the University of California

Special relationship between D and person committing harm
Facts. In October 1969, Prosenjit Poddar (Poddar) murdered Tatiana Tarasoff (Tarasoff). Plaintiffs,
Tatiana’s parents, contended that only a short time prior, Poddar had expressed his intention to do so.
This, they alleged, he had confided to his therapist, Dr. Lawrence Moore, a psychologist employed by
University of California. They further alleged that Dr. Moore had warned campus police of Poddar’s
intentions, and that the police had briefly detained him, but then released him. Plaintiffs asserted two
grounds for their action: the failure to confine Poddar, in spite of his expressed intentions to kill
Tarasoff, and failure to warn Tarasoff or her parents. Defendants maintained that they owed no duty of
care to the victim and were immune from suit.

Issue. Did Defendants owe a duty to the victim thus making them liable for the harm that ensued? →
does the relationship owe a duty to the estate of the plaintiff, creating a case of negligence?

Synopsis of Rule of Law. A defendant owes a duty of care to all persons who are foreseeably
endangered by his conduct, with respect to all risks that make the conduct unreasonably dangerous.
When the avoidance of foreseeable harm requires a defendant to control the conduct of another person,
or to warn of such conduct, liability is imposed only if the defendant bears some special relationship to
the dangerous person or to the potential victim.
• This is a broad duty, and thus there are many ways for them to fail to live up to the duty.

Held. The court held that Plaintiffs could amend their complaint so as to bring a valid cause of action
against therapists and Regents of University of California for breach of duty to exercise reasonable
care.
* The court concluded that the police did not have the requisite special relationship with Tarasoff,
sufficient to impose a duty to warn her of her Poddar’s intention.

Discussion. In Tarasoff, the Supreme Court of California addressed a complicated area of tort law
concerning duty owed. Their analysis required a balancing test between the need to protect
privileged communication between a therapist and his patient and the protection of the greater
society against potential threats. The court began its analysis by addressing the “special relationship”
required that imposes a duty on an individual to control another. “A duty of care may arise from either
(a) a special relation between the actor and the third person which imposes a duty upon the actor to
control the third person’s conduct, or (b) a special relation between the actor and the other which gives
to the other a right of protection.”
- You would argue foreseeability and assertions that the defendant SHOULD have known that the
patient could have carried out this threat
- What triggers the duty is not that they have to predict but that they make threats as an identifiable
person to prevent harms done to others
- The therapist need only exercise that reasonable degree of skill, knowledge, and care ordinarily
possessed and exercised by members of that professional specialty under similar circumstances.”

Most important of these considerations in establishing duty is foreseeability

o As general principle a defendant owes a duty of care to all persons who are foreseeably
endangered by his conduct, with respect to all risks which make the conduct unreasonably
dangerous
HOWEVER
o When the avoidance of foreseeable harms requires defendant to control conduct of another
person, or to warn of such conduct, the common law has traditionally imposed liability ONLY if
defendant bears some special relationship to the dangerous person or to the potential victim
▪ Duty very specific because the more confined a duty is the more opportunity D has to say
he satisfied the duty and less ways P can identify there was a breach

“A duty of care may arise from either

(a) a special relation between the actor and the third person which imposes a duty upon the actor to
control the third person’s conduct, or
(b) a special relation between the actor and the other which gives to the other a right of protection.”
This consideration was critical to the circumstances in Tarasoff
 As a general proposition, “when a hospital has notice or knowledge of facts from which it might
reasonably be concluded that a patient would be likely to harm himself or others unless preclusive
measures were taken, then the hospital must use reasonable care in the circumstances to prevent such
harm.”

Therapist has a duty to take reasonable precautions to third parties.

• Defendant argues that it is difficult for them to predict chances of danger. All they are saying is
that they need to exercise reasonable care. They also argue that this would breach the patient doctor
relationship.

START WITH DUTY ON EXAM. IF THERE IS NO DUTY, NO BASIS FOR LIABILITY, AND STOP
DISCUSSION AFTER.

starting point of tort, did you engage in something that had a risk of harm, and did you have a special
relationship → these lead to whether you have a duty of care.

If there is no duty, there is no suit

Class 6 – Duty Con’t

What is the standard of care, measuring stick? Reasonable care

- What is the evidence you can adduce to prove that someone did not measure up to that standard of care?
- What policy factors will the law rely upon when to decide whether someone measured up to the standard
of care?
1) What sorts of relationship between the plaintiff and the defendant and a third person will be
sufficient to decide the defendant’s conduct to see if they measured up to that standard
2) Is the invasion of the interest that the plaintiff is complaining about the type of interest that tort
law will provide a remedy for in negligence

UHR v. East Greenbush Central School District

Facts - Parents sued school alleging that the school, in violation of a state statute, failed to test the
infant plaintiff annually for scoliosis and that failure necessitated surgery that could have
been avoided had they obeyed the statute
- As a result of this failure, the plaintiff’s ailment progressed undetected
Issue - Did the school owe a private duty of care to the plaintiff?
Holding - SC reaffirmed District court’s motion for summary judgement in favour of the defendant
claiming that the statute (Education Law §905(1)) does not create a private right of action
and therefore the plaintiff failed to state a claim for common-law negligence
- The court points out that a statutory command does not necessarily carry with it a right of
private enforcement by means of tort litigation
- Basically, failed on the 3rd prong of the Sheely test where the court concluded that a
private right of action to enforce education law §905(1) is inconsistent with the statute’s
legislative scheme and therefore cannot be fairly implied
- This statute is both telling you what a breach is AND telling you what a duty is, outside of
the statute the common law wouldn’t impose a duty on the school district because they’re
not a health care provider. Their job is to educate.
- Duty is not part of Martin v Herzog
Ratio ON EXAM: Questions to Ask
1. What is statute doing in relation to common law?
2. Which party wants to use it AND how will they use it?
 Private Right of Action means → Circumstances when a court will determine that a law
that creates rights also allows private parties to bring a lawsuit, even though no such remedy
is explicitly provided for in the law
• When a statute itself expressly authorizes private right of action there isn’t a need
for further analysis
• When statute is silent, as it is here, courts have to determine whether private right of
action may be fairly implied
o P relying on doctrine of implied cause of action
• Difference between prior cases there was no question of whether there was duty
owed, statute was only being used to determine standard of care NOT duty.
BUT HERE, we are using statute to determine duty owed
o This statute is being used to establish the duty as well AS the breach
• Thus, if used in negligence per se context the factual dispute goes right to those issues
WHEREAS, HERE WITH IMPLIED RIGHT OF ACTION ROOTED IN STATUTE
YOU HAVE THE TEST THAT NY USES HERE TO DECIDE IF ONE EXISTS (Per
se: Negligence due to the violation of a law meant to protect the public, such as a speed
limit or building code)

Test for private right of action is: Sheely Test

(1) Whether plaintiff is one of class for whose particular benefit the statute was enacted
(2) Whether recognition of private right of action would promote the legislative purpose;
and,
• 2 step inquiry here → first must discern what Legislature was seeking to
accomplish when it enacted the statute (purpose) AND then determine whether
private right of action would promote that objective
(3) Whether creation of such a right would be inconsistent with the legislative scheme
• How do we go about promoting it?
- Just because you want to infer a duty or breach, that doesn’t supplant the idea that there’s a
common law claim independent of the statute – you may still make a common law claim in
addition to a statutory base claim
- Is this statute addressing tort liability?
- If not, but the defendant wants to use it, is the defendant using it to show both the breach and duty?

Cuyler v. US: A babysitter abused plaintiff’s child, sued the government because an Illinois statute
required reporting incident where the babysitter had previously been abusive which was not done.
- Court differentiated between negligence per se and an affirmative obligation in tort. The court held that
there was no common law duty to report and concluded that no private right of action should be found in
the statute.
- The court reasoned that imposing liability for merely negligently failing to report might put
individuals on a razor’s edge in decision to report suspicions of abuse and thereby risk being sued
for defamation or to not report and thereby risk being sued if the abuse was genuine and repeated
so as to harm others
- Because there was no implied right of action, no common law affirmative duty should be adopted based
on the statute

C. Policy Bases for Invoking no Duty

- All cases in this section, the defendant has played a role in creating the risk that harmed the plaintiff.
Nevertheless, for specific policy reasons though to be important, courts sometimes determine that no duty
exists, thereby withdrawing the possibility of the defendant being held liable for the harm, even if
negligent

GROSS NEGLIGENCE → means that the imbalance in B ><P x L is far greater than just negligence
• The awareness of the actor in how to balance these factors are growing so that we pass beyond
what a reasonable person would balance these acts at, to a situation where this particular person
understood the risk (inclusion of some subjective state of mind)
Negligence: Deviation from the standard of care of a reasonable person resulting in injury

California
#1. Foreseeable person or group of persons put in danger
#2. Foreseeable likelihood of harm
#3. Closeness of connection between D’s conduct and P’s injury
#4. Moral blameworthiness of D’s behavior
#5. Policy of preventing future harm
#6. Extent of the burden on D
#7. Consequences to the community of imposing the duty
#8. Availability, cost, prevalence of insurance for the risk involved

Strauss v. Belle Realty Co.

Facts - Consolidated Edison’s power system left most of NYC in darkness and the suit follows
damages as a result of this power outage
- The company had a contractual relationship with the defendant and landlord, Belle Realty
Co.
- The power outage left the plaintiff with no water, so they went to the basement to get some
but fell on the darkened, defective basement stairs
- Plaintiff brings action against Belle Realty for failing to maintain the stairs or warn of the
dangerous condition and an action against utility for negligence in performance of its duty to
provide electricity
Issue - Did the defendant owe a duty of care to a tenant who suffered personal injuries in a
common area of an apartment building where his landlord had a contract with the utility
company, but not him? (injury may have been foreseen but no contractual obligation
existed)
Holding - In a blackout with several million residents and visitors, liability to should limited by the
contractual relationship
- The court say while privity of contract may extend a duty outside of contractual
relationships, it is the court’s discretion to limit the legal consequences of wrongs to a
controllable degree and protect against crushing exposure to liability
- With utility companies, the court see these cases as “sui generis” and declined to impose
liability that could be enormous. Citing Moch Co. v. Renssealer Water, the court said the
same thing → would unduly extend liability; Beck v. FMC – loss of pay for workers
because of downed electrical service would result in an unwarranted extension of liability
- Court akins this situation most to “White v. Guarente” – Accounting firm retained by a
limited partnership to perform an audit and prepare its tax returns. The agreement stated that
the partners would rely on the tax returns and audit
- Court said that the services of the accountant were not extended to a faceless or
unresolved class of persons, but rather to a known group possessed in vested rights,
marked by a definable limit and made up of certain components
- Central to these decisions was an ability to extend the defendant’s duty to cover
specifically foreseeable parties but at the same time to contain liability to manageable
levels
 - Permitting negligence to that broadly defined class would open a door too wide and would
violate the court’s responsibility to define an orbit of duty that places controllable limits on
liability
Ratio Case focuses on extent of the burden on D, thus on public policy grounds → unlimited and
uncircumscribed class of people to whom Con Ed might be liable due to the black-out.
NOTE: not excluded everybody when Con Ed messes up, thus despite event being
foreseeable, court still chooses to limit liability to contractual relationships in city-wide
blackout

The courts must (1) limit the legal consequences of wrongs to a controllable degree; (2)
protect against crushing exposure to liability

Nonfeasance is the failure to act where action is required — willfully or in neglect. Misfeasance is the
willful inappropriate action or intentional incorrect action or advice.

The Moch Case (Different than Strauss because in that case there was no liability because there was
potential for crushing liability – while here we look at relationship between P and D
Facts - Different than Strauss because in that case there was no liability because there was
potential for crushing liability – while here we look at relationship between P and D
- D had a contract with the city of Rensselaer to supply water for various purposes,
including service at fire hydrants
- Building caught on fire, flamed spread to Plaintiff’s warehouse and destroyed it
- Plaintiff alleged that the water company’s failure to supply adequate water permitted the
spread of the fire to the warehouse
Issue - Did the defendant owe a duty to users of the water that’s supplied to the city?
Holding - Cardozo held that there was no common law tort action available to users of the water
supplied to the city
- Given a relation in its existence a duty of care irrespective of a contract, a tort may result
as well from acts of omission as of commission in the fulfillment of the duty recognized by
law
- Here, they are dealing with a mere negligent omission, unaccompanied by malice or
other aggravating elements. It’s not that they owe a duty to everyone in the city, but that
they had a job to perform and they negligently omitted to perform it
- Therefore, the failure in such circumstances to furnish an adequate supply of water is
at most the denial of a benefit, it is not the commission of a wrong → they did not
undertake this duty
- Failure to deliver water is not negligence because it’s a failure so it’s a nonfeasance not a
misfeasance
Ratio - Cardozo’s formula: If conduct has gone forward to such a stage that inaction would
commonly result, not negatively merely in withholding a benefit, but positively or
actively in working an injury, there exists a relation out of which arises a duty to go
forward
- The question is: whether the putative wrongdoer has advanced to such a point as to
have launched a force or instrument of harm, or has stopped where in action at most a
refusal to become an instrument for good
- One may be relative danger, another can be the likelihood of damage which would
result in many possible claims → there’s no duty owed as a matter of law for water
pressure
- The less foreseeable someone is, the more the burden is because there are more people that the duty can
flow to. The more foreseeable, the smaller the burden because less can sue you.
- Adams v. Bullock: Why was this a negligence and not a breach case?
- Duty is generally a question of law for the court to determine at the outset, causation is an element that
the jury will rely upon that may relieve the jury of liability
- Paulk: defendant contracted with hospital to maintain all main hospital functions → no contractual
relationship between nurse injured and service manager company (same as Strauss). Court says that this
class is limited, although large, but it is a selective class. How do you determine if the class is too big?
- What is the relationship of the defendant to the hospital? An employee? Injured by a condition
on the premises → this moves us into two bases that would impose duty based on relationship,
employer to employee and entrant onto the premises of the defendant

Reynolds v. Hicks
Facts - At Jamie and Anna Hick’s wedding party, Steven Hicks (Jamie’s nephew) got drunk
- He took his sister’s car and was involved in an automobile accident with Reynolds
- Reynolds claimed that the Hicks were negligent in serving alcohol to Steven with
knowledge he was a minor
- Defendants sought summary citing Washington law that “does not extend social host
liability for furnishing alcohol to a minor to third persons injured by the intoxicated minor”
- District court granted, but appellant moved it to SC
- Plaintiffs cite RCW 66.44.270 which created a duty of cared owed by the defendant to
plaintiff basically saying that no one but parents of a minor can serve alcohol to said minor
on their own premise or any premise under their control
Issue - Whether the Defendant social hosts who furnished alcohol to a minor owed a duty of care
to a third person injured by the intoxicated minor
Holding - Court rules that there’s no warrant for an extension of the statute or Washington care
(Hansen) to extend liability for a host to a third party because there’s a difference between a
social host and commercial vendor
- Social hosts are not as capable of handling the responsibilities of monitoring their guests’
alcohol consumption as are their commercial and quasi-commercial counterparts
(commercial proprietor has a proprietary interest and profit motive and should be expected
to exercise greater supervision than in the non-commercial social setting)
- Since social hosts are generally unaccustomed to the pressured involved in taking
responsibility for the intoxication of their guests, the court cannot predict how well social
hosts would respond when the scope of their duties would be so ill defined
- The court says that since the statute allows parents to give alcohol to a minor who may
injure a third person, it is apparent that the statute was not enacted to protect third persons
injured by intoxicated minors
- Dram shop acts: They serve someone under the legal limit or serve someone visibly
intoxicated.
Ratio - The court does not recognize a cause of action in negligence for a third person
injured by an intoxicated adult against the social host that served the person while in
an obviously intoxicated state, but does recognize a cause of action against a
commercial vendor in the same situation

Commercial proprietor has proprietary interest and profit motive, and should be
expected to exercise greater supervision than in the social setting – plus person in
business of selling/serving alcohol is usually better organized to control patrons, and
has financial wherewithal to do so

Although commercial proprietors have a duty to third persons injured by an

intoxicated person whom has been furnished alcohol by the proprietor, social hosts do
 not owe the same duty to third parties injured by intoxicated minors. therefore, this
essentially overrides the statute.

Vince v. Wilson (Negligent Entrustment)

Facts - Plaintiff seriously injured in an automobile accident brought suit against defendant Wilson
who had provided funding for her grandnephew, the driver of the car, to purchase the
vehicle (Plaintiff was a passenger in the vehicle)
- Trial court directed verdicts in favour of defendants Ace and Gardner (car salesmen) &
claim against Wilson was directed to the jury returning in favour of plaintiff
Issue - Did the defendants negligently entrust the driver to operate and own this vehicle?
Holding - SC of Vermont says that the trial court erred in directing verdicts in favour of Ace and
Gardner and reaffirm court’s decision to submit the question to the jury for Wilson
- Tort of negligence is when liability arises out of the combined negligence of both, the
negligence of one in entrusting the automobile to an incompetent driver and of the other in
its operation
- Cases cited derive from the Restatement of torts stating: One who supplies directly or
through a third person a chattel for the use of another whom the supplier knows or has
reason to know to be likely because of his youth, inexperience, etc...to use it in a manner
involving unreasonable risk of physical harm to himself and others whom the supplier
should expect to share in or be endangered by its use, is subject to liability for physical harm
resulting to them
- This applies to sellers, lessors, donors or lenders, and all kinds of bailors
- The key inquiry is whether the entrustor knew or should have known some reason why
entrusting the item to another was fooling or negligent
- Wilson knew that the driver did not have a license and failed his test multiple times → this
fact was communicated to defendant Gardner, an agent of defendant Ace prior to the sale of
the vehicle
- Wilson was also aware that her grandnephew abused alcohol and other drugs
Ratio The liability arises out of the negligence of both the entrustor and the entrustee: the
incompetent driver and the person who puts the incompetent driver behind the wheel.
It is the entrusting that creates the unreasonable risk, whether this is done by selling or
giving. There was evidence here which made it possible for a jury to find that everyone
involved knew the kid had no business driving, and yet they let him have a car

The tort of negligent entrustment requires a showing that the entrustor knew or should’ve
known some reason why entrusting the item to another was foolish or negligent

PREMISES POSSESSORS
On exams, always classify each person in fact pattern as invitee, licensee, or trespasser and analyze duty
owed to each person

The Duties of Landowners and Occupiers

Section deals with duties owed to entrants by those who own, or are in possession of, land for harm
arising from conditions on the land
- What power does a property possessor have that generates this duty? They have the power to exclude
who can and cannot be on that property.
- Knowledge of the existence of danger and likelihood of coming across the danger
- Willful & want-in
- It’s a question of fact what the relationship is, so you might need some discovery of fact if there’s a
dispute as to the relationship (trespasser, licencee, and invitee)
- Invitee: should the possessor have discovered the ice and then exercised proper care to remove it?
- Monetary benefit alleviates the sense of a burden on the defendant
- 2 Category of invitee: business invitee and public invitee. Public only has the show that the property was
held to the public and that the entrant was on the property for that purpose (this is because you’re opening
the risk of harm to a greater number of people and so you owe that duty of care)
- Keep in mind that this is about the harm caused by conditions on the property (wall mounted fan falling,
ice accumulated, tree branch falling). This is not the entrant coming onto the property and the owner
drives on the driveway hitting the entrant → that would be duty of reasonable care of who would be
foreseeably injured, could that have foreseen someone standing on their driveway?
- If they’re not a trespasser, you need to see if the entrance was foreseeable, and did the property
possessor use reasonable care?
- When it comes to children (what is natural vs artificial) natural: not in any way created by human, and
human creation = artificial
324.73301 – Liability of owners, tenants and lessees (all possessors): a cause of action does not arise for
injuries to a person if they do not pay → alleviates liability for owners to trespassers and licensees
- Now the entrant if they want to sue must show gross negligence and willful and wanton conduct

Common law (Traditional View)

1. Trespassers enters the premises without permission
2. Licensees has permission to be on the premises
3. Invitees enter at invitation which both possessor and entrant receive mutual business advantage or
invitation i.e. made to the public

Trespasser category based solely on position NOT WHETHER you chose to be there or not

Carter v Kinney
TRADITIONAL VIEW

- Ronald and Mary Kinney had a bible study in their home, appellant Jonathan Carter, a member of the
Northwest Bible Church, attended the early morning bible study at their home
- Kinney shoveled snow from the driveway overnight but wasn’t aware that ice formed overnight,
carter slipped on a patch of ice and broke his leg
- Mr. Carter claims he was an invitee and Kinney’s claim he was a licensee
- Kinneys move for summary judgement that no liability arose out of a licensee relationship and was
granted in their favour

Historically premise liability recognize three categories of plaintiffs: trespassers, licensees and invitees
• All entrants to land are trespassers until the possessor of the land gives them permission to
enter
• All persons who enter a premise with permission are licensees until the possessor has an
interest in the visit such that the visitor has reason to believe that the premise has been made
safe to receive him that makes the visitor an invitee
• Generally, a possessor owes a trespasser no duty of care, the possessor owes a licensee the duty
to make safe dangers of which the possessor is aware, and the possessor owes invitees the duty
to exercise reasonable care to protect them against both known dangers and those that would be
revealed by inspections.

Restatements → “a person is invitee “if premises are thrown open to public and [person] enters
pursuant to purposes for which they are thrown open” → THUS, absent invitation from possessor
that lifts licensee to invitee status, visitor remains a licensee as matter of law
 The possessor’s intention in offering the invitation determines the status of the visitor and establishes
the duty of care the possessor owes the visitor.

A person is not an invitee merely because that person was invited.

Heins v Webster County

Movement away from traditional view

- Heins visited defendant’s hospital → Defendant claims this was a purely social visit to his daughter
Julie Heins who is the director of nursing for the hospital. Heins claims it was more than social, but
also to coordinate plans for him to play Santa Claus for the hospital staff for upcoming Christmas
season
- Upon exiting the hospital, Heins fell due to an accumulation of snow and ice and injured his hip

Distinction between licensee and invitee is abandoned AND standard of reasonable care is required for
all lawful visitors
• Still separate classification for trespassers

If you don’t have permission, then they don’t owe you duty of care

Instead of entrant’s status, the foreseeability of injury should be controlling factor in

determining liability of the owner
Among the factors to be considered in evaluating whether a landowner or occupier has exercised
reasonable care for the protection of lawful visitors will be:
1. The foreseeability or possibility of harm
2. The purpose for which the entrant entered the premises
3. The time, manner, and circumstances under which the entrant entered the premises
4. The use to which the premises are put or are expected to be put
5. The reasonableness of the inspection, repair, or warning
6. The opportunity and ease of repair or correction or giving of the warning; and
7. The burden on the land occupier and/or community in terms of inconvenience or cost in
providing adequate protection

Landlord and Tenant

- A landlord was liable in tort only if the injury is attributable to: (Sargent v. Ross)
1) A hidden danger in the premises of which the landlord but not the tenant is aware,
2) Premises leased for public use,
3) Premises retained under the landlord’s control, such as common stairways, or
4) Premises negligently repaired by the landlord
- Sargent expanded that to state: A landlord must act as a reasonable person under all of the
circumstances, including the likelihood of injury to others, the probable seriousness of such injuries, and
the burden of reducing or avoiding the risk
- Not liable if a tenant gets injured in a common area and not an area that was not leased

Criminal Activity
- Tenants began suing landlords for providing inadequate protection against criminal activity
- Kline v Mass (someone assaulted in hallway of his building) → landlord should have taken preventive
measures as he knew of the increased dangerous activity and these were not measures any tenant could
have taken. The landlord is in the best position to guard against the predictable risk of intruders. The
landlord is not an insurer of the safety of his tenants, but his duty is to take those measures of
protection that are within his power and capacity to take and severely mitigate risks of harm

Posecai v Wal-Mart
New standard, a balancing test where courts balance foreseeability of harm to potential plaintiff

- Plaintiff brought suit against defendant after she was robbed at gunpoint in the store’s parking lot
after shopping
- She was wearing valuable jewelry valued around $19,000
- Security guard testified that he was not aware of any similar activity in the lot, or that the parking lot
had a propensity for danger and that there’s no security patrolling the lot
- Police officer testified that a subdivision behind Sam’s was a high crime area but with no knowledge
that it affected Sam’s in any way, to his knowledge none of the other businesses employed security
guards at the time of this robbery
- Professional crime-assessor was brought to determine the safety of the area and said that between 13
businesses there were 83 predatory offences (3 in Sam’s) and that it would likely be mitigated with
security presence
- Mrs. Posecai contends that Sam’s was negligent in failing to provide adequate security in parking lot
considering the high level of crime in the surrounding area
- Sam’s did not possess the requisite degree of foreseeability for the imposition of a duty to provide
security patrols in its parking lot, nor was the degree of foreseeability sufficient to support a duty to
implement lesser security measures

Created a balancing test formulated in California and adopted by Tennessee, in which courts balance
foreseeability of harm to potential plaintiff and
• They created duty risk analysis and you must prove that conduct in question was the
cause and fact of resulting harm i.e. that the defendant owed a duty of care to the plaintiff –
the requisite duty was breached by D – and the risk of harm was within the scope of protection
afforded by the duty breached
• In this analysis all inquiries must be answered in the affirmative for plaintiff to recover

Posecai illustrates the standard framework in analysis of tort law – that is the four elements of duty,
breach, causation and harm
• With regard to duty, the court offers a broad explanation: “[a] threshold issue in any
negligence action is whether the defendant owed the plaintiff a duty. Whether a duty is owed is
a question of law. In deciding whether to impose a duty in a particular case, the court must
make a policy decision in light of the unique facts and circumstances presented
• Once a duty is established, a second issue arises with respect to proximate cause:
foreseeability, i.e., whether the defendant should have reasonably foreseen, as a risk of her
conduct, the general consequences or type of harm suffered by the plaintiff. As the Posecai
notes, “[t]he foreseeability of the crime risk on the defendant’s property and the gravity of the
risk determine the existence and the extent of the defendant’s duty. The greater the
foreseeability and gravity of the harm, the greater the duty of care that will be imposed.”
• Finally, with respect to the new standard the court adopted, the court explained that
“[t]he balancing test addresses the interests of both business proprietors and their customers
by balancing the foreseeability of harm against the burden of imposing a duty to protect
against the criminal acts of third persons. In determining the duty that exists, the foreseeability
of harm and the gravity of harm must be balanced against the commensurate burden imposed
on the business to protect against that harm. In cases in which there is a high degree of
 foreseeability of harm and the probable harm is great, the burden imposed upon defendant
may be substantial. Alternatively, in cases in which a lesser degree of foreseeability is present
or potential harm is slight, less onerous burdens may be imposed. Under this test, the high
degree of foreseeability necessary to impose a duty to provide security, will rarely, if ever, be
proven in the absence of prior similar incidents of crime on the property.”

Foreseeability v Burden → Greater the foreseeability the more onerous the burden and vice
versa

E. A Reprise of Duty

A.W. v Lancaster County School District

Stands for proposition that it is mistake to even have foreseeability because makes it question of law
when should be matter of fact

- Kindergarten student was sexually assaulted in a school restroom during the school day and their
mother sued the school alleging that their negligence permitted the assault to occur
- Joseph Siems entered the school, didn’t sign in, a teacher asked if he needed anything and when he
didn’t answer, she went to the office to see if he signed in
- He then stated he needed to use the restroom, she pointed him to one and told him to sign in when
he’s done
- The teacher knew no kids were in that restroom, but the other teacher saw him leave the restroom and
walk down the hall out of sight – into a bathroom near the entrance
- The teachers told the school secretary who informed the administrator in charge of the school but in
the meantime CB, a 5-year-old kid, reported that Siems performed oral sex on him in the restroom
- They called a code red lockdown of the school, Siems tried escaping but was detained by the
custodian until he was arrested

If you don’t include foreseeability as guiding principle THIS COURT states that whenever engaged in
risk generating behavior (risk to anybody) we are going towards there being far more frequently duties
being exposed
• SC uses this case to make a pronouncement about how they will start doing the duty analysis
o HOWEVER, they didn’t really need to do that in this case – because there was a
‘special relationship’ – this is a child in the custody of school district, during school
hours
o Could’ve simply decided it on this basis of relationship WHICH would mean that
don’t need to bring up question of foreseeability of this criminal sexual assault
occurring RATHER ‘they had a duty to protect him from it BASED ON THEIR
RELATIONSHIP’ period!!

ON EXAM: WHY DID NEBRASKA DECIDE TO REMOVE FORESEEABILITY FROM ITS

DUTY ANALYSIS?
• Under restatements of torts, foreseeable risk is an element in the determination of negligence,
not legal duty. In order to determine whether appropriate care was exercised the fact finder
must assess the foreseeable risk at the time of the defendants alleged negligence. Foreseeable
risk depends on the specific facts of the case and cannot be usefully assessed for a category of
cases. Foreseeability is correct to analyze under the duty requirement.
 FAMILY IMMUNITY
Section considers impact on duty when plaintiff and defendant are part of same family unit

Originally seen as one entity so impossible to sue one another → All remnants of spousal immunity have
disappeared as to both intentional and negligent harms
• Court essentially gender neutralize this so that both spouses can sue – but the idea of spouse
having an interest in other spouse’s rights is basic framework

Some jurisdictions still retain spousal immunity for variety of reasons:

• Concerns about collusion or fraud
• Broadly available insurance – now pool of assets out there that can only be claimed if one spouse
sues another spouse

Another thing that is driving these types of cases is – suppose there is an insurance fund that gets tapped
into and child dies as result to injuries, where does money go to?
▪ If parent is negligent for child death, then it is a perverse result for parent to benefit from their own
negligence – SO WE DO NOT WANT THAT

Broadbent v Broadbent
Adoption of reasonable parent standard
ON EXAM KNOW DIFFERENT APPROACHES – SANDOVAL, GOLLER, BROADBENT

- While defendant (mother) was watching her 2.5-year-old swimming, the phone rang so she went
inside to answer it
- She saw her son at the bottom of the pool and he got severe brain damage as a result of this…has no
voluntary movement and no motor skills
- Dad sues mom to recover from a liability insurance policy but the case was dismissed on the doctrine
of parental immunity. D appealed.

Goller (Michigan Uses This)

Parental immunity is abrogated (repeal or do away) except:
1. Where alleged negligent act involves exercise of parental authority over the child; and
2. Where alleged negligent act involves exercise of ordinary parental discretion with respect to
provision of food, clothing, housing, medical and dental services, and other care

Sandoval
A Parent wouldn’t be immune if the parent had duty to the world at large
o Duty to the world – meaning generating the risk of harm to not only the child BUT to others
as well
o If you can show this is negligent conduct to the world than the parent can sue – then here not
talking about child suing the parent because what parent did arose out of that relationship
RATHER talking about parent engaging in risky behavior and someone got hurt and that is why
we have suit
o Ex: parent left the lawnmower running in the front yard → it happened to be the child of the
parent who was hurt, but there were other children there, it could have been any of them who
could have been hurt → therefore this parent had a duty to more than just their child.

Broadbent
 Parent always owes parental duty to their minor child → the issue of liability should revolve around
whether parents have breached this duty and, if so, whether the breach of duty caused the injury
• Reasonable parent test → parent’s conduct is judged by whether that parent’s conduct
comported with that of reasonable and prudent parent in similar situation

Harm to Fetus
Tort law requires you to be living to bring suit – an unborn fetus doesn’t allow you to bring suit

GOVERNMENTAL ENTITIES
Immunity became exception rather than the rule → known as public immunity doctrine

HOW TO ANALYZE ONE OF THESE QUESTIONS

In a tort analysis, deal with the following things first in your analysis: 1) immunity 2) statute of
limitations → if the case is barred by the statute of limitations then that is the answer of the question, your
analysis ends there → same thing with immunity

Any place where federal government says there is liability it will trump state immunity doctrines

Two themes pervade the different treatment of tort liability for public entities:
1. governmental officials make many policy choices, balancing costs and benefits for public or
political gain; and
2. Much of governmental activity is in the affirmative duty sphere: protecting the public from risk
created by others

Municipal and State Liability

Riss v City of New York
NY statute says not going to be any governmental immunity

- Over 6 months, plaintiff was being stalked and threatened by some guy she rejected
- She reported those threats to the police but the help she was given didn’t compare to the level of the
threat received
- P got engaged and threats continued, she called police and begged for help
- D’s goon threw lye in her face blinding her in one eye and damaging vision in the other and so she
sued the NYPD for negligent failure to protect her

In the absence of legislation or an assumption of responsibility, police authorities are not liable for
failing to provide special protection to individuals threatened with harm
• If police authorities undertake responsibilities to specific individuals and expose them to
risks without adequate protection, tort actions are allowed

In contrast, in Michigan the rule is that there is governmental immunity EXCEPT for particular
protections

Lauer v City of New York

- Andrew was 3 and died as a result of blunt injuries to the neck and brain
- Police began an investigation based on the report that it was a homicide, focus on the child’s father
- However, the report was amended stating that the death was clearly from a brain aneurism, but it was
never corrected, and the police weren’t notified until 17 months later
- Plaintiff sued the City of New York
To immunize kind of alleged misconduct described by pleading of this case would reward government
agents who hide truth and sweep wrongdoings under rug of tort impunity

Distinction between discretionary and ministerial governmental acts:

• A public employee’s discretionary acts → meaning conduct involving the exercise of
reasoned judgement may not result in the municipalities liability even when the conduct is
negligence the choice is left to the party
• Contrast, ministerial acts → meaning conduct requiring adherence to a governing rule, with a
compulsory result may subject the municipal employer to liability for negligence.

To sustain liability against municipality the duty breached must be more than that owed to public
generally. A special relationship

A ministerial breach by a governmental employee does not per se give rise to municipal liability.
A medical examiner does not have a special relationship with criminal suspects and thus does not
owe them a duty against negligent infliction of emotional distress

Friedman v State of New York

- Friedman’s car was sideswiped on a viaduct causing her to swerve into oncoming traffic and was hit
head on
- the Department of transportation conducted a study which determined whether a median barrier
should be constructed 5 years earlier but never acted on it
- However, through two cases came another study that adding a median would result in worse injuries
from ‘bounce-back’ occurrences → plaintiff contended that this study was wrong
- Appellate Court held that the delay in constructing the barrier was not unreasonable

Issue: Did the state breach its duty by its unreasonable delay in acting to remedy a known dangerous
highway condition once the decision to do so had been made?

Further basis upon which defendants may be held liable → once decision has been reached to go
forward with plan intended to remedy a dangerous condition, liability may result from a failure
to effectuate the plan within a reasonable period of time

• Under doctrine of qualified immunity → When analysis of hazardous condition by

municipality results in formulation of remedial plan → an unjustifiable delay in implementing
the plan constitutes a breach of municipality’s duty to the public just as surely as if it had
totally failed to study the known condition in first instance

Once it goes from discretionary to ministerial → you go from immune to potential duty to carry it out
• In this case they decided they will do something. Once they make decision it becomes
ministerial and thus you must show duty of care.

Scope of what’s discretionary, what should be considered discretionary, and not the bottom line of “it’s
discretionary if the government is questioning whether something is an ongoing problem or
deliberating the on-going problem.” However, if they make a decision but then fail to execute it, then
they’ll be liable

FEDERAL TORT CLAIMS ACT AND EMOTIONAL DISTRESS

 Same discussion as previous section but now talking about federal level and its attached immunity

Federal tort claims act s 2674 Liability of United States

o US shall be liable respecting the provisions of this title relating to tort claims, in the same manner and
to the same extent as a private individual under the circumstances, but shall not be liable for interest
prior to judgment or for punitive damages

Gov. immunizes employees from intentional torts. They are immune unless you can fit in the federal court
claims act. But not liable for intentional torts unless there an investigative officer.
• This provision reflects basic principles that we do not think officers should engage in intentional
torts unless they are deemed to need intentional conduct like investigative officials
1346 gives jurisdiction to the US District court, and if you sue the US gov’t, it must be done in district
court. Under 11th Amendment, you generally can’t sue US Gov’t in state court, unless the fed is below the
state
- If the intention tort is by an investigative officer, federal law enforcement officer, we can understand
that in the scope of their work for the federal government they may come across these torts and so the US
gov’t takes responsibility but if it was a postal officer, then there’s no reason why they should be laying
their hands on you
Pg. 257 note 8 – explains the fact that the US is immune from injuries arising out of active duty of
members of the military regardless of whether it’s during a time of war

Cope v Scott
Deciding between ministerial and discretionary

1) Is there a statute or regulation that the person should be following? No, go to step 2, if yes, well did
they follow it using due care?

How to decide between ministerial and discretionary:

• (1) Look for regulation → was the gov. actors conduct prescribed already through statute,
rule, regulation or policy – if it was then it clearly is not discretionary
• (2) Policy Consideration → if no prescription it may be discretionary if it is a policy question
rooted in social, economic or political policy – if not it’s not discretionary and US can be sued
as anyone in the private actor’s shoes.

A discretionary function may be applicable where there is no specific prescription and the government
employee has a choice, if the decision is not “essentially political, social, or economic.”
In this case, on allegations of negligent road maintenance, we affirm the District Court’s decision that
large road maintenance projects are bound by economic policy and are therefore immune from suit
under the FTCA. With respect to improper signage, how to post signs did not implicate “political,
social, or economic” policy considerations and so is not immune from suit under the FTCA exemption.

DUTY REQUIREMENT: NON-PHYSICAL HARM

ON EXAM: COME UP WITH EXPLANATIONS AS TO WHY USE ONE OVER OTHER

This is different question of liability because without physical harm there is concern of limitless class of
litigants. Do you want 12 people who watched you hit someone to be able to sue you as well
• context here is emotional distress where there is NOT physical harm

Negligent Infliction of Emotion Distress

Direct victim
 o Impact rule → limit who can sue for emotional distress who had contact. Able to limit possible
plaintiffs (Mitchell v. Rochester Railway). This rule is that essentially you need physical impact, and
then you can add on emotional distress claims.
o Physical manifestation Rule → the extent of the pure emotional trauma suffered by each victim
was so extreme, that it caused the victims to ultimately manifest their emotional injury in some
physical way. In Champion, the manifestation came in the form of an immediate and fatal heart
attack. In Zell, while delayed, the manifestation materialized in an esophageal blockage and other
physical ailments.
o Zone of danger test → if you are in the area. Suffer from emotional distress from being ‘almost
injured’ – question is do we believe the person was close enough to the risk of injury that the
emotional distress would be reasonable
ALL THESE TESTS ARE TRYING TO LIMIT WHO POSSIBLE POOL OF POTENTIAL
TORTFEASORS ARE

Falzone v Busch
Physical Manifestation Rule
- Falzone was standing in a field adjacent to a road where defendant struck and injured him because of
the defendant’s negligent driving
- Falzone’s wife was seated in his parked car close to the place where her husband was struck
- Because of the accident, Falzone became ill and required medical attention

First, look at proximate cause. If there is something that separates the actions significantly, the harm is
so far removed that it is wrong to impose liability in those circumstances

Where negligence causes fright from a reasonable fear of immediate personal injury, and which fright
is adequately demonstrated to have resulted in substantial bodily injury or sickness, the injured person
may recover if such bodily injury or sickness would be regarded as proper elements of damage had
they occurred as a consequence of direct physical injury rather than fright.

- She could have argued that she saw her husband struck and therefore has a bystander claim. But, she
said that she suffered directly because of her husband’s injury.

Metro North v Buckley (Asbestos Case)

Emotional distress with no physical loss

- Buckley worked as a pipe fitter for Metro and was exposed to asbestos for an hour per day
- Plaintiff sued for the exposure and negligent infliction of emotional distress as he feared he would
develop cancer despite showing no signs of illness
- Medical experts states that his exposure increased his risk by 1.5-2%
- P sued under FELA and sought damages for emotional distress

Didn’t find them liable because worried about too many potential litigants

Shouldn’t turn on whether or not there is some sort of contact beyond exposure, rather need to evaluate
it on whether there is evidence of whether there was genuine emotional distress, this decreases the
amount of cases, and ensures that there will not be frivolous cases. Couldn’t prove this in this case

**These last classes have looked at tort law’s concern of too broad a liability for claims not rooted in
physical loss.

EMOTIONAL DISTRESS AND PURE ECONOMIC LOSS

Negligent Infliction of Emotional Distress
Bystander Claim
▪ Close relative by blood or marriage
▪ Present at the scene at the time of injury and is aware of serious injury or death to close relative
injured.
▪ As a result, suffers severe emotional distress beyond that of a disinterested witness and is not an
abnormal reaction at the time of the injury

Gammon v Osteopathic Hospital of Maine

Direct Victim Standard
- The plaintiff requested that the hospital return his fathers personal effects. The hospital instead
mistakenly sent a bag of several body pats taken from the pathology lab. The plaintiff believed that the
parts were his fathers and became hysterical. He suffered a temporary condition of emotional
disturbance and sued the hospital for, among other things, negligent infliction of emotional distress.
The court dismissed this claim as no physical injury occurred and the plaintiff appealed.

Rule: One may recover for negligently inflicted psychic distress not accompanied by physical injury.
The test is foreseeability, could the defendant have foreseen that their actions could create emotional
distress to the plaintiff? A defendant is bound to foresee psychic harm only when such harm
reasonably could be expected to befall the ordinarily sensitive person.

No duty to extremely sensitive person (eggshell psyche)

We do not provide compensation for the hurt feelings of the supersensitive plaintiff – the eggshell
psyche. A defendant is bound to foresee psychic harm only when such harm reasonably could be
expected to befall the ordinarily sensitive person.

Johnson v Jamaica Hospital

Bystander claim because about third party
- Plaintiff’s daughter was abducted from a hospital where she was born on the day 2 bomb threats were
sent to the hospital
- The plaintiff filed a suit for emotional distress resulting from Hospitals negligence. The daughter was
found by police and returned to the plaintiff four and a half months later.

The foreseeability that such psychic injuries would result from the injury to the daughter does not serve
to establish a duty running from defendant to plaintiffs (parents), and in the absence of such a duty, as a
matter of law there can be no liability.
• i.e. the hospital, even if negligent in caring for the daughter and directly liable to her, is NOT
liable for emotional distress suffered by plaintiffs as a consequence of the abduction

Policy reasons in play here to prevent open-ended liability for indirect emotional injury suffered by
families in every instance where the very young or very elderly experience negligent care or treatment.

Parents may not recover for emotional distress suffered as a result of injuries inflicted on a child
because of a hospital’s negligence, unless the parents are within the zone of danger and witness
their child’s serious physical injury or death.

Portee v Jaffee
 - The plaintiff’s son was caught between an elevator door and the wall of an elevator shaft. The
elevator went into operation and her son became jammed in the shaft. He suffered severe injuries from
which he later died. The plaintiff witnessed the incident and later the plaintiff suffered psychological
problems, including an attempted suicide. She brought a suit seeking damages for emotional distress.
The trial court granted summary judgment dismissing the case, and the plaintiff appealed

Three Factors which would determine whether an emotional injury would be compensable
because of foreseeability:
o (1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a
distance away from it
o The existence of a marital or intimate familial relationship is therefore an essential
element of a cause of action for negligent infliction of emotional distress.
o (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and
contemporaneous observance of the accident, as contrasted with learning of the accident from
others after its occurrence.
o Observing the death or serious injury of another while it occurs is an essential
element of a cause of action for the negligent infliction of emotional distress
o (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any
relationship or the presence of only a distant relationship
o The risk of emotional injury exists by virtue of the plaintiff’s perception of the
accident, not his proximity to it.
o (Added factor) The severity of the physical injury causing emotional distress.
o The observation of either death or this type of serious injury is necessary to permit
recovery.
o Therefore, a cause of action for emotional distress would require the perception of
death or serious physical injury

In Short Form:
The cause of action we approve today for the negligent infliction of emotional distress requires proof of
the following elements: (1) the death or serious physical injury of another caused by defendant’s
negligence; (2) a marital or intimate familial relationship between plaintiff and the injured
person (3) observation of the death or injury at the scene of the accident; (4) resulting severe
emotional distress.

NEGLIGENCE INTEREFENCE WITH CONSORTIUM

Have to keep these claims different from emotional distress – this is about an economic relationship.
There doesn’t need to be any proximity

A very important aspect of family relationships is the harm to one spouse when the other is seriously
injured.
o In the years since Justice Kaplan’s opinion, virtually all states have come to recognize the loss of
consortium action for both spouses

Economic Harm
1. The defendant has caused plaintiff only economic harm without any related personal injury or
damage to real or personal property.
2. As with emotional distress, the courts have not protected economic interests as extensively as
those involving physical security of person and property – even when the harm was inflicted
intentionally, by fraud.
Loss of consortium - these claims suggest that while it is generally true that negligence as a tort has
concerns about non-physical loss to person or property, we have little areas in which negligence has
consistently allowed for recovery. This is what consortium claims - accept a long-standing claim that non-
physical harm can be the basis of recovery. It is often folded in chapters of emotional distress because it is
a claim for emotional stress. It seems like emotional distress, but it has a different starting point rooted in
an older era in our culture.

It has an emotional component to it but has to do with marital relationships. The first case we see about
this in the book is Hammontree v. Henner - car strikes one member of a couple and the other is able to sue
because of a loss of companionship. This opens up challenging questions - can parents sue for the loss of
consortium of children, siblings, parents? Concern: are we letting too many claims going forward?

Do we have concerns about non-physical loss? Are the claims legitimate? Just because someone is your
sibling, does this really mean you have a relationship with them where you can say you lost an aspect of
the relationship? Tort law was satisfied based on the roots of this based on a conception of marriage
(man/wife as master/servant). Biggest issue is whether the claim is authentic.

You can have the issues piggy-back on one another.

All of these questions are asked at the duty stage → yes or no

Economic Harm: Attorney malpractice can produce harm that is purely economic but because of their
PR will be treated as a loss because of the malpractice.
- Pure Economic Loss: Wholly damages as a result of a contractual breach
Loss to property: ordinary negligence claims that don’t generate any type of particular policy concerns

Any property that you owned that is damages or destroyed by the defendant’s conduct is a loss of
property claim. If, however, the crux of your claim is that when you purchase or were given property that
does not function as promised, that’s more of a problem of a failure for something to fulfill and obligation
of something that was supposed to be given.

**These last classes have looked at tort law’s concern of too broad a liability for claims not rooted in
physical loss.

Nycal Corporation v KPMG Peat Marwick LLP

No general duty unless you know that person would rely on the information

- The plaintiff allegedly relied on an auditor’s report prepared by the defendant KPMG Peat Marwick
LLP in deciding to enter into a stock purchase agreement. When the company became insolvent, the
plaintiff sought damages and costs resulting from its alleged reliance on KPMG’s report.
- The court granted KPMG’s motion for summary judgment after applying the liability standard
embodied in § 552 of the Restatement Second of Torts (1977) and the plaintiff appealed.
- This is a third-party case because it was Gulf who hired KPMG)
- The defendant first learned of the transaction between the plaintiff and Gulf a few days prior to the
July 12, 1991, closing. Until that time, the defendant did not know that any transaction between the
plaintiff and Gulf had been contemplated.

There was no privity between the plaintiff and the defendant in this case that common law tort law
would otherwise rely upon to owe a duty of care. Ultramares – what must be proven by the defendant
to show that the plaintiff owed a duty of care to them even though the defendant wasn’t a party to that.
Cardozo says that
States have developed 4 basic approaches to question of duty owed by (in this case) accountants to
those not in privity with them

Foreseeability TEST
An approach close to general foreseeability thereby allowing more expansive liability

Actual Privity Test

Bright line rule → duty is there when there is a contract between parties

Near-Privity Test
→ all dependent on subjective knowledge, this is NOT foreseeability approach – it depends upon there
being a privity like situation → it deals with what this accountant actually knows
Requires knowledge and direct contact
- Reliance by the 3rd party on services negligently delivered, they did rely on that, and direct linkage to
the 3rd party (at minimum linkage means some direct contact)
- They adopt the reasoned standard of §522 that limits potential liability to noncontractual third party
who can demonstrate actual knowledge on the part of the accountants of the limited potential
parties who would or could rely upon the report and actual knowledge of the financial
transaction that such information is designed to influence → at the TIME the audit is published
and not the foreseeable path of harm actually taken
- For ex: client asks accountant to prepare audit for an acquisition by a third party and they
know the third party will rely on that information to purchase their company (the accountant
must know who the class of persons are that may rely on this information, AND the particular
financial transaction that such information is designed to influence)

Restatement Approach (more balanced approach)

That liability is limited [under § 552(2)] to:
Loss suffered
(a) by the person or one of a limited group of persons for whose benefit and guidance he intends to
supply the information or knows that the recipient intends to supply it; and
(b) through reliance upon it in a transaction that he intends the information to influence or knows that
the recipient so intends or in a substantially similar transaction.
Different from foreseeability because foreseeability is too broad of a class of people

Restatement Approach in English → this approach requires knowledge of some discrete class of
people and reliance BUT doesn’t require that accountant have some sort of direct connection – as long
as P can show that D prepared report and knew it would be used for some sort of people to consider an
investment or relied upon for some business transaction that is enough – but it has to be some specific
group
- Require plaintiff to show that they are a part of a limited group who’s benefitting the guidance that
the defendant knows or intends to know that this information be received by 3rd parties and through
reliance upon the transactions
- Importing a subjective component to duty
- You have to show that the defendant you’re suing has actual awareness OR get the defendant to
say that they knew. If the defendant disavows that they knew of this particular person receiving
benefit, then they may avoid liability (must show particular knowledge of a particular person)

PURE ECONOMIC LOSS AND WRONGFUL BIRTH, LIFE

Questions of Legal Malpractice Tend to Arise in Two Contexts:
o One involves cases in which attorneys fail to file complaints within the statute of limitations or in
some other way fail to perform a non-judgmental task.
▪ The client may have a good legal claim for malpractice if it is possible to show that the action, if
filed, would have been successful.
o Second type of claim arises from judgmental strategic decisions that usually occur during litigation
which later turn out badly.
▪ Not likely to second guess attorneys unless it lacked any plausible justification. In both
situations, an expert is usually needed to explain to the jury the standard of care and the
deviation.

Emotional Distress
• In these cases, it is unusual for the awards to include recovery for the client’s distress due to the
attorney’s negligence. The plaintiff in such a case must show that she sustained “highly foreseeable
shock stemming from an abnormal event.”

Attorneys and Third Parties

LAN/STV v Martin K Eby Construction Co
Economic Loss Rule
- Also, a case where person suing is not person to whom there is privity of contract
- Relationship is between Dallas transit authority and LAN/STV drawings and plan for a transit line,
that plan was given to Eby for construction of the line only to discover massive design problems from
LAN/STV

The common law has long restricted recovery of purely economic damages unaccompanied by injury
to the plaintiff or his property
o The rule serves to provide a more definite limitation on liability than foreseeability can and reflects
a preference for allocating some economic risks by contract rather than by law.
o The rule is not generally applicable in every situation

Courts impose tort liability for economic loss more selectively than liability for other types of harms.
1. Indeterminate and disproportionate liability → economic losses proliferate more easily than
losses of other kinds – i.e. a single negligent utterance can cause economic loss to thousands of
people who rely on it – defendants in such cases thus might face liabilities that are indeterminate
and out of proportion to their culpability which may in turn create exaggerated pressure to avoid an
activity altogether

2. Deference to contract → economic injuries caused by negligence often result from a decision by
the victim to rely on D’s words or acts when entering some sort of transaction – THUS, potential
plaintiff making such decision has full chance to consider how to manage risks involved
▪ courts generally do not recognize tort liability for economic losses caused by the breach of a
contract between the parties and often restrict role of tort law in other circumstances in which
protection by contract is available
- (Exception in Texas) Professional malpractice cases are an exception to this rule. A client can
recover purely economic losses from a negligent lawyer, regardless of whether the lawyer and
client have a contract. Courts have allowed recovery for pure economic losses in certain categories
of cases, such as negligent misrepresentation and professional negligence actions against attorneys,
accountants, real estate professionals, and insurance brokers
 Construction disputes are good candidates for precluding recovery under economic loss rule, because
parties in position to protect themselves through bargaining

532 Madison Avenue Gourmet Foods v Finlandia Center

- Apartment buildings collapsing
- Claim wasn’t about collapse causing physical loss, it’s that individual’s businesses couldn’t be
accessed because of the rubble.
- Sued for economic loss as a result of the building collapse & nuisance
- The notion of a nuisance suit is that a defendant use of property interferes with others using their
property
- intent or recklessness over negligence balance

Move us away from set of professional relationships and moves to category of cases that still involve
economic loss BUT cause of economic loss is NOT failure to deliver services or negligent
misrepresentation – the economic loss is caused by negligence actually resulting in physical loss to
somebody IT IS JUST NOT the person who’s suing

On duty: A duty may arise from a special relationship that requires the defendant to protect
against the risk of harm to the plaintiff. Landowners have a duty to protect tenants, patrons and
invitees from foreseeable harm caused by the criminal conduct of others while they are on the
premises because the special relationship puts them in the best position to protect against the
risk. That duty does not extend to members of the general public. However, the landowner does
not owe a duty to protect an entire urban neighborhood against purely economic losses

A public nuisance is actionable by private person ONLY if it is shown that person suffered special
injury beyond that suffered by community at large

On public nuisance: A public nuisance exists for conduct that amounts to a substantial
interference with the exercise of a common tright of the public, thereby offending public morals,
interfering with the use by the public of a public place or endangering or injuring the property,
health, safety, or comfort of a considerable number of persons. A public nuisance is actionable by
a private person only if it is shown that the person suffered special injury beyond that suffered
by the community at large

- Cite Strauss because allowing these claims would open to door to far too many claims

WRONGFUL BIRTH, AND WRONGFUL LIFE

Wrongful birth → Claims where parents are suing the doctor for a negligent action on behalf of that
doctor resulting in defects (doctor failed to diagnose, abort, perform procedure, etc...)
Wrongful Pregnancy → Child is born healthy
Wrongful life → Child is suing doctor for failing to properly warn parents of potential risks (Jersey,
California)

Emerson: Are we going to recognize these claims? And to what extent will we recognize damages?

Important thing to remember is that doctor isn’t being sued for causing the defects. RATHER, the defects
already existed, and doctor failed to diagnose them – that is what distinguishes these from malpractice
cases
▪ Doctor either failed to prevent pregnancy or failed to terminate it and outcome is someone being born
in some sort of situation where they don’t have ordinary/healthy life – outcome in these cases by
and large NO recovery

Emerson v Magendantz – Rhode Island

Different than Michigan
The Emersons (plaintiffs) decided they did not want additional children, and Diane Emerson underwent
a surgical tubal ligation performed by Magendantz (defendant), a gynecological specialist. After the
procedure Diane became pregnant, and later gave birth to a girl who allegedly suffers from congenital
problems. Diane then underwent another sterilization procedure

These cases are different than when the physician was deemed responsible for the harm the child
suffered. These are cases where a doctor failed to diagnose or prevent a pregnancy, and not that it
CAUSED the damage like a malpractice case.

- Child became handicapped from a sterilization procedure

- They recognize a cause of action in Rhode Island but through a limited recovery through only the
special costs of raising a handicapped child
- You still need to bring a medical expert to show that appropriate testing was done and what a
reasonable doctor would have told the patient

1. If a physician is on notice that children would be disabled, the damages might include the full
cost of raising the child
2. The "limited benefit rule" covers medical expenses (of the failed sterilization, the sequel to
make it stick, the pregnancy, prenatal, delivery, and postnatal care), loss of wages, and loss of
consortium. However, does not allow for recovery of emotional distress

The more difficult issue is how to measure the amount of damages for a physician’s negligent
sterilization resulting in unwanted pregnancy and delivery of a child. Other courts have recognized
three different rules for determining appropriate remedies:

(1) The limited-recovery rule, adopted by a majority of states, under which a plaintiff may recover for
the costs of the ineffective sterilization procedure and any subsequent procedure, the medical and
hospital costs of the pregnancy, pre-natal care, delivery, and postnatal care, loss of wages, loss of
consortium to the spouse, and occasionally for the emotional distress resulting from the unwanted
pregnancy;

(2) A full-recovery rule, allowing all damages reasonably foreseeable as a result of a negligent
sterilization, including the costs of child rearing; and

(3) A full-recovery rule that permits the costs of child rearing, offset by the economic or emotional
benefits derived by the parents from having a healthy child.

In this case, Rhode Island would allow special costs for bringing of handicap child BUT only the
additional costs for that – “limited benefit rule”

In Rhode Island could recover for emotional distress as well

▪ In Michigan if doctor fails to diagnose that child is less than healthy – clearly malpractice – you
can recover nothing
 → Should we allow this claim to be brought at all, and if so, what are the damages?

FACTUAL CAUSATION
There are two types of causation in the law: cause-in-fact, and proximate (or legal) cause

The formal Latin term for “but for” (Cause-in-fact) causation, is sine qua non causation

But For Test = Basic Doctrine for Causation

What does plaintiff have to show to link defendant’s negligence to the harm?
• If the answer is ‘wouldn’t have mattered’ as consequence would have still happened, then YOU
AS PLAINTIFF HAVE NOT ESTABLISHED CAUSATION
• You don’t need certitude or 100% chance – rather need probability (more likely than not)

Start with basic test UNTIL there is a problem with it – and then Q is whether there is alternative test
that must prevail

Situations where you have more than one cause lead to an issue with the but for test but NOT in all
cases
▪ A is driving down street speeding, B drives north and runs stop sign crashes into A – vehicle travels
on angle and runs into C – C sues A and B and says both of you are negligent
o Does C have problem with establishing causation?
o Do we have problem with fact that more than one person produced this harm? Not really
because B is at fault here – C has one harm,
▪ Only trouble where you have one indivisible harm
• Here A alone negligence isn’t the cause, and B’s negligence alone isn’t the cause BUT
BOTH OF THEM TOGETHER IN SEQUENCE IS THE CAUSE

- In Cause in Fact, the central issue is whether you can use the “but for” test
- Your main goal is to diagnose those situations in which the “but for” test may not work, why it doesn’t
work, and whether there’s an alternative test to be used to fulfill this element
- You’re not connecting the defendant’s action to the harm, you’re connecting the defendants breach of
duty to the harm. For example, a doctor doesn’t ask a woman if shes pregnant, she gets an xray and it
damages the fetus requiring an abortion. The woman, although didn’t know she was pregnant either, she
sues the doctor for failing to ask. However, this would not be negligence because it fails the ‘but for’ test,
but for asking the question she would have still gotten the x-ray since she didn’t know she was pregnant.
- You can have multiple necessary causage to apply the but for test (But for A speeding, and B running a
red light would C have gotten injured?)

Class – But for Cases

- Recognize there might be circumstances we tailor the measuring stick, what direct evidence
(circumstantial like res ipsa loquitor)
- Is the statute giving you a cause of action? Is it giving you a common law action in negligence per se,
etc…
- Quiz will be focused on all of the issues regarding negligence and defenses: pre-emption, and statute of
limitations
- Very much about the application of the principles

Stubbs v City of Rochester

Standard “But For” Case
 The City of Rochester (the city) (defendant) maintained separate water systems for drinking, known as
the Hemlock system, and for firefighting, known as the Holly system. In May 1910 the two systems
intermingled near the Brown Street Bridge, and the Hemlock system became contaminated with
sewage present in the Holly system. The contamination was not discovered until October 1910. Stubbs
(plaintiff) worked at a factory one block from the Brown Street Bridge, where he drank water daily.
Stubbs did not leave the city during the summer of 1910, and only drank water from within the city.
When he became ill with typhoid fever in September 1910, he brought suit against the city for
negligence.

The issue in this case was whether the plaintiff proceeded evidence from which an inference might be
reasonably drawn that the cause of his illness was due to the use of contaminated water furnished by
the defendant. The city argues that even assuming that the city may be held liable to plaintiff for
damages caused by its negligence, the evidence by the plaintiff fails to show that the plaintiff got the
fever from drinking the contaminated water, and that it was incumbent upon the plaintiff to establish
that his illness was not due to any other cause that could be attributed to the fever that the
defendant could be liable for. City argues that where there are several causes of injury for one or
more of which is a defendant is not responsible, a plaintiff cannot recover without proving that the
injury was sustained wholly or in part by a cause for which the defendant was responsible. He contends
that it was essential for the plaintiff to eliminate all other seven causes from which the disease might be
contracted.

Court held that the evidence does disclose several causes of typhoid fever, such as drinking polluted
water, raw fruits, consumption of shellfish, etc. At trial, there were at least 58 witnesses who were
residents of the district who drank the contaminated water and suffered from typhoid fever in addition
to the plaintiff – 1/3 of the city’s 180 cases in the months examined came from that district. Trial court
granted directed verdict for the City. This court reversed and ordered a new trial on the grounds that
this wasn’t a case where the plaintiff was so lacking in proof as a matter of law that his complaint
should be dismissed. Court held that if two or more possible causes exist, for only one of which a
defendant may be liable, and a party injured establishes facts from which it can be said with
reasonable certainty that the district cause of the injury was the one for which the defendant was
liable, the party has complied with the spirit of the rule.

There must be enough evidence at trial to show that defendant’s negligence more likely than not was
the cause for plaintiff’s injuries? But for the city’s contaminated water, would plaintiff have contracted
typhoid fever

Circumstantial Evidence with But For Test

Testimony by medical professionals that it was likely that the contaminated water made plaintiff sick,
and because so many other sicknesses were reported in the area where the contaminated water was
found, plaintiff should not have to prove that he did not contract typhoid in any other way

- Whether or not he Defendant’s negligent more likely than not caused the other competing causes

Evidence:
- Dr. Goeler, a physician and health officer of the city, was called by the plaintiff and testified that in
September when complaint was made to him by a resident of the district he went to the locality, visited
houses in the immediate neighbourhood, and found that the water drawn from the faucet of the hemlock
supply looked and smelled badly.
- He took a sample and found it contained an increase in solids and 20-30 times as much chlorine or salt
found in water supplies, and the presence of chlorine in excessive quantities indicates contamination.
Water was collected from various houses and a large number of samples and other typhoid cases were
shown – doctor made the finding that in his opinion the outbreak was due to polluted water, contaminated
as he discovered by sewage.
- Dr. Dodge did another analysis of the water found the same. Dr. Brady and Dr. Culkin both found the
same.

Alternatives to the but for test – used only when the but for test does not work - **EXAM
Multiple sufficient causes are:
1. Independent
2. Concurrent
3. Each is sufficient to
4. Producing an indivisible injury
(essentially the D negligent action alone is sufficient to cause the harm to P)
Must satisfy all these elements

Diagnose alternative liability

Then satisfy those elements (refer to slides)
Then burden of proof switches to the defendants to disprove

MULTIPLE SUFFICIENT CAUSES

Suppose two parties acting independently, each negligently start a fire – two fires burn separately but then
arrive simultaneously at plaintiff’s home and burn it down – either fire alone would have been sufficient
to destroy the house
▪ In Anderson v. Minneapolis: Employed the ‘substantial factor test; Under this test, actual causation
can be shown where defendant’s conduct coincided with another force; both defendant’s conduct and
the other force were each sufficient, standing alone, to cause the injury, and it is impossible to tell
which one actually caused what portion of the injury, if any
▪ In Basko – court recognized problem with employing but for test if each one independently could’ve
produced the harm and held that causation would be satisfied if the defendant’s negligence was a
substantial factor in producing the harm – substantial factor test doesn’t put the burden that this
cause is more probably the cause than any other cause out there – pretty beneficial for P to rely on
substantial factor test
▪ ‘But for’ test literally fails in fie scenario because NOT true → it is not true that but for D1’s
negligence house wouldn’t have burned down
- Multiple sufficient causes are causes that are independent of eachother, concurrent, and each is
sufficient to produce an indivisible injury…if all are satisfied to the facts, you can use a causation theory
that if it’s sufficient or substantial cause to the harm. But, if any one of those factors can be challenged.

- Although both defendants may be parties to a charge and jointly liable, you must first meet a prima facie
case for each defendant

Key situations where But For Test SHOULD NOT be applied:

Where you have independent and they are concurrent, in addition each are sufficient, and YOU have ONE
indivisible injury

Zuchowicz v United States

Another situation where you have substantial factors aiding Plaintiff case

The defendant admitted that its doctors and pharmacists at a naval hospital had been negligent in
directing Mrs. Zuchowicz to ingest 1600 milligrams of Danocrine – double the maximum authorized
dosage. She took this dose for one month after which her dosage was reduced to the maximum amount
for a little over two months. She was then told to discontinue the drug. About four months after she
stopped, she was diagnosed with primary pulmonary hypertension. She became pregnant while on the
waiting list for a transplant, which made her ineligible for a transplant and exacerbated her symptoms.
Zuchowicz died and her husband brought this case on behalf of her estate.
1) Whether the experts were properly allowed to testify to give evidence; 2) whether or not the
evidence was competent enough to establish causation
- Because the expert testimony was properly introduced, their evidence was sufficient to establish that
the drug Dancrine was more likely than not the cause of the illness meeting the probability standard.
But, based upon a theory that says if a negligent act is deemed wrongful because the act increases the
chance of a particular accident and the mishap did happen that’s enough to support a finding by the
trier of fact that the act caused the harm
- Not that this drug DID produce this illness, but that this drug CAN cause this illness. This is
an illustration of circumstantial evidence that satisfies the probability standard
- Court says that the fact that the drug may cause damage isn’t the negligent action, but rather, it’s the
over prescription of the drug which caused the harm
- The court is showing that but for has to be demonstrated and that alone may not be sufficient
and so you can introduce circumstantial evidence to show ‘but for’ and substantial factor (but
for doctor’s prescription, and the drug’s side effect is the substantial factor)
- You use both because of the nature of the defendant’s negligence conduct and the way in
which the harm is caused is by this cause. Contrast with the fire example where the fire burns
someone’s property, the drug being tied to outcomes that are negative is a much more
complicated factual determination
- Two types of burdens: burden of proof and burden of persuasion, it seems that this court is using the
burden of persuasion stating that if the plaintiff can produce a certain type of evidence, then a trier of
fact could find negligence and then it’s the defendant’s onus to contrast that evidence

Potential Exam Question: The factual scenario underlying Zuch can be combined with the factual
problems in Stubs and that you have to deal with both. In zuch it’s primary pulm hyper, they dismiss
the second one because she doesn’t have a lung disease but say she did, how does that change the case?

Plaintiff based its case on two expert witnesses (two doctors) which led to the plaintiff receiving a
judgment in their favour at trial. The defendant challenges their admissibility and sufficiency of their
testimony.
• Dr. Matthay – testified that he was confident to a reasonable medical certainty that
Danocrine caused the plaintiffs PPH. He believed the overdose was responsible for her
contracting the disease. This was based on the temporal relationship between the
overdose and the start of the disease and by excluding other causes.
• Dr. Tackett – testified that to a reasonable degree of scientific certainty, he believed the
overdose more likely than not caused the plaintiffs PPH by causing various hormonal
factors.
Defendant argued that the trial court erred in admitting the expert testimony. The court rejected this.
Defendant also argued that the court’s factual findings with respect to causation were clearly erroneous
because Danocrine overdoses has never been linked to PPH and therefore the court could not conclude
the overdose caused the plaintiff’s PPH. The court rejected this.

The court held that the rarity of PPH combined with the fact that, so few people have ever received
such a high dose of Danocrine, obviously impacted the manner in which the plaintiff could prove
causation. The number of persons who received this type of overdose was simply too small for the
plaintiff to be able to provide epidemiological or even anecdotal evidence linking PPH to Danocrine
overdoses.
 The issue is whether the action for which the defendant is responsible caused, in a legal sense, the harm
which the plaintiff suffered. Court held that in Connecticut, in order to meet the requirement that the
defendant’s behaviour was a substantial factor in bringing about the plaintiff’s injury, the plaintiff must
generally show: a) that the D’s negligent act or omission was a but for cause of the injury, b) that the
negligence was causally linked to the harm, and c) that the defendant’s negligent act or omission was
proximate to the resulting injury. In this case, the plaintiff must show that a) the defendant’s act in
giving Zuchowicz Danocrine was the source of her illness and death, and b) that it was not just the
Danocrine, but its negligent overdose that led to her demise.

The court held that the plaintiffs PPH was more likely than not caused by the Danocrine and was not
clearly erroneous. Court held that the plaintiff showed some direct evidence of causation when Dr.
Matthay testified that the timing of Zuchowicz’ illness led him to conduce that the overdose was the
cause. Generally, when a negative side effect is demonstrated to be the result of a drug, and the drug
was wrongly prescribed in an unapproved and excessive dosage, the plaintiff who is injured has
generally shown enough to permit the finder of fact to conclude that the excessive dosage was a
substantial factor in producing harm. The plaintiff in this case has shown more than that.

Plaintiff must show that it was the overdose itself. Because this is difficult to prove, the following
test was used:
If (a) A negligent act was deemed wrong because the act increases the chances that a particular type of
accident would occur; and (b) a mishap of that very sort did happen, this is enough to support a finding
by a tier of fact that the negligent behavior caused the harm. Plaintiff satisfied her burden and the
burden thus shifts to Defendant

Case Required Expert Testimony for Purpose of Causation

▪ Plaintiff is required to show that this expert testimony linking over prescription and PPH is
correct
▪ Court uses Daubert factors that are listed in NEXT case
o These factors help answer the question “is this science sufficiently credible to assist
factfinder OR is this junk science?”

Problem with But For Test in this case:

▪ What is problem with ‘but for’ causation? What is lacking is that neither expert could say that “I’m
relying on test that shows that this level of overdose led to PPH
▪ Because this is the case the substantial factor test helps because we are inferring because the FDA
set this dosage level that is an acceptable trade off, as past the max. dosage the FDA thinks that
risks of the drug outweigh the benefits

Wolf: v. Koffman Dealing with res ipsa loq with causation (Similar to Ybarra)
- Plaintiff has to come up with direct evidence

When is it appropriate to rely on circumstantial evidence for cause and fact

- Why is Zuch a but for test but Koffman is a substantial factor. In Zuch, we’re talking about a drug and
unusual illness, but when talking about stairs you could be injured by lack of attentiveness, poorly lit,
etc…

1. Does the “but for” test work? If it doesn’t ask why and if there’s an alternative doctrine available and
choose that one to apply the test

LOSS OF CHANCE
Cases are different because the court takes chance of opportunity and treats that as the damages
Matsuyama v Birnbaum
Loss of chance doctrine originated because dissatisfaction with “all or nothing” rule recovery

Court was asked to determine whether Massachusetts law permits recovery for loss of a chance in a
medical malpractice wrongful death action, where a jury found that the defendant’s doctor’s negligence
deprived the plaintiff’s decedent of a less than even chance of surviving cancer. Where a physician’s
negligence reduces or eliminates the patient’s prospects for achieving a more favourable medical
outcome, the physician has harmed the patient and is liable for damages. Permitting recovery for loss
of chance is particularly appropriate in medical malpractice cases.

The defendant was the primary caregiver of Matsuyama for four years. M had complained about gastric
distress dating back to 1988 and reiterated his issue to the defendant. D knew that M smoked and had a
risk of gastric cancer 10 to 20 times the risk of the average American. Nevertheless, D only conducted
a physical examination and did not order any tests. M also inquired about moles on his body to which
the D said were benign. In 1999, M went to the D complaining of epigastric pain, vomiting, sudden
weight loss and premature feelings of fullness after eating. Testing revealed a 2cm mass in his stomach
which was revealed to be gastric cancer, for which the M died in October 1999. The plaintiff filed suit
against the doctor. At trial, the jury heard expert testimony from plaintiff’s physician witness who held
that D breached the applicable standard of care in evaluating and treating M, resulting in his death.
• Expert held that if he had ordered appropriate testing in 1995, the cancer would have been
diagnosed and treated in a timely fashion and perhaps curable.
• At trial, jury found D negligent.
-This court rejected the all or nothing rule, which held that a plaintiff may recover damages only by
showing that the defendant’s negligence more likely than not caused the ultimate outcome. If the
plaintiff meets this burden, the plaintiff recovers the damages. If it is less than even, plaintiff recovers
nothing.
Court recognizes loss of a chance as a theory of inquiry, not causation, and rejects the defendant’s
contention that a statistical likelihood of survival is a mere possibility and therefore speculative. Court
held that reliable modern techniques of gathering and analyzing medical data have made it possible for
fact finders to determine based on expert testimony whether a negligent failure to diagnose a disease
injured a patient by preventing the disease from being treated at an earlier stage, when prospects were
more favourable.

Steps to calculating damages in loss of a chance tort:

1. Fact finder must calculate the amount to which the decent would be entitled if the case were
not a loss of chance case: the full amount of compensation for the decedent’s death or injury
2. The fact finder must next calculate the patient’s chance of survival or cure immediately
preceding the medical malpractice
3. The fact finder must then calculate the chance of survival or cure that the patient had as a result
of the medical malpractice
4. Must then subtract the amount derived in step 3 from the amount in step 2
5. Must then multiply the amount determined in step 1 by the percentage calculated in step 4 to
derive the proportional damage award for loss of chance
-Court affirmed trial decision

Proper test for loss of chance is But For test. Substantial contributing factor test is less
appropriate as an instruction as to cause in a loss of chance case in which one defendant’s
malpractice alone is alleged to have caused the victim’s diminished likelihood of a more
favourable outcome.
 In order to prove loss of chance a plaintiff must prove by preponderance of evidence that
physician’s negligence caused plaintiff’s likelihood of achieving a more favorable outcome to be
diminished

Decision Limited to medical malpractice actions → Where a physician’s negligence reduces or

eliminates the patient’s prospects for achieving a more favorable medical outcome, the physician has
harmed the patient and is liable for damages

What about increased chance of getting sick in the future? → look up to notes after Stubbs where
discuss existing disease cases and what not – general rationale is that you can recover ONLY for what
you establish NOW
- Couldn’t you show if there are causes for the death AND in addition, the doctor’s malpractice that
might have had some independent and concurrent, and sufficient effect on causing the death that you
have multiple sufficient scenarios?

Michigan Legislature adopted subsection 2 → adopted loss of opportunity approach

(2) in an action alleging medical malpractice, the plaintiff has the burden of proving that he or she
suffered an injury that more probably than not was proximately caused by the negligence of the defendant
or defendants, in an action alleging medical malpractice, the plaintiff cannot recover for loss of an
opportunity to survive or an opportunity to achieve a better result unless the opportunity was greater than
50%

MULTIPLE DEFENDANTS; PROXIMATE CAUSATION

Context = multiple potential defendants with one indivisible injury

Summers v Tice
- This is a different problem than the substantial factor approach

- In Zuch, the factfinder CAN be allowed to use circumstantial evidence to satisfy the prima facie case.
Tice is saying that the plaintiff doesn’t have to demonstrate the cause in fact, it is shifting the burden of
proof over to the defendant. The plaintiff satisfies the burden of proof for causation when the
alternative liability conditions are met, and it shifts to the defendant.

Plaintiff and defendants Tice and Sumonson were hunting quail when both defendants fired in
plaintiff’s direction. One shot struck the plaintiff’s eye and another his lip. Both defendants were using
the same gauge shotgun and the same size shot. The trial judge found both the defendants negligent and
found that the plaintiff was in no way at fault. Unable to decide which defendant hit the plaintiff, he
awarded judgment against both defendants. Defendants appeal.

Issue is whether the judgment against both defendants must fail because defendants are not joint
tortfeasors and thus jointly and severally liable, because they were not acting in concert, and whether
there is sufficient evidence to show which defendant was guilty of the negligence which caused the
injuries.
• Tice argues that there is evidence to show that the shot which struck the plaintiff came from
Simonson’s gun because by admissions he allegedly made to third parties and no evidence that
they came from Tice’s gun.

Court finds that it is clear that the court sufficiently found on the issue that the defendants were jointly
and severally liable and that the negligence of both was the cause of the injury or to that legal effect.
The trial court held that the negligence of both defendants was the legal cause of the injury and that
both were responsible. Couldn’t tell which shots were from each defendant but that the shot that
 entered the plaintiff’s eye was the major factor in assessing damages and that shot could not have come
from the gun of both defendants. It was only from one or another. Court has determined that where a
group of persons are on a hunting party with firearms and two of them are negligent in firing in
the direction of a third person who is injured thereby, both of those so firing are liable for the
injury suffered by the third party, although the negligence of only one of them could have caused
the injury.

Court affirmed judgment at trial, and held that under the circumstances here, each defendant is
liable for the whole damage whether they are deemed to be acting in concert of independently.

Problem: ‘but for’ test fails but not on conceptual level → one of these defendants is actually the ‘but
for cause’ we just cannot figure out who it is

Solution: Not going to make plaintiff prove cause and effect, RATHER we are going to shift that onto
the defendants
• Rationale → ordinarily defendants are in far better position to bring forth evidence to show
who caused the injury

The court must then evaluate different approaches to in assigning responsibility:

1. Alternative Liability → Use of the alternative liability doctrine generally requires that
the defendants have better access to information than does the plaintiff, and that all
possible tortfeasors be before the court
→ Allows the plaintiff to shift the burden of proving causation of his or her injury to
multiple defendants, even though only one of them could have been responsible. The
doctrine requires that the plaintiff bring all possible defendants in court and that the
plaintiff show the defendants all breached a duty of reasonable care. The burden then
shifts to the defendants to provide evidence of who caused the injury.
→ The underpinning of this doctrine is that a plaintiff should not be barred from seeking
recovery simply because she does not know who caused her injury. The defendants are
usually the parties in the best position to have the relevant information.
- All Defendants breached their duties creating a similar risk of harm to the Plaintiff
- One of the defendants caused all of the harm and the other defendants caused no harm. The
plaintiff through no fault of his/her own, cannot identify which defendant caused the harm
- All defendants are brought before the court as parties
- One defendant definitely did something, and the other defendants definitely did not but you
can’t tell WHO caused the harm. But for fails in this situation merely because the evidence isn’t
there for the plaintiff to establish liability
- The plaintiff has to show that each defendant was negligent and the burden shifts to each
defendant to diminish their negligence
2. Concerted Action → provides for joint and several liability, on the part of all defendants
having an understanding, express or tacit, to participate in a common plan or design to
commit a tortious act (does not apply when there are multiple causes to injury)
• allows broader scope of liability for people who are conspirators
• Refers to an action which is planned, arranged, and agreed on by parties acting
together to further or fulfill some plan or cause
o i.e. We do know that somebody caused you harm what we’re solving is
that we have other people who have such a significant role in the harm
you suffered that they should be liable despite not personally hitting the
plaintiff
 o i.e. Drag Racing context and injury to third person
1. Common plan or scheme
2. D gives substantial assistance and encouragement and knows the person they assisted engaged
in tortious behaviour
3. D gives substantial assistance and encouragement and own conduct separately considered from
other person’s conduct is a breach of duty to the P
- There’s no common scheme or plan because you can choose to shoot your gun by yourself
- These concerted action theories fall in the tort arena
- Example of 1: You have 2 drag racers, one hit another car and the one that caused the harm has
no auto insurance but the 2nd driver that didn’t cause the harm does have auto insurance and he is
liable for the damages for participating in this activity (action was tortious to begin with)
- Example of 2: you’re a passenger in a car that goes and buys liquor for driver knowing the
driver will drink it while driving…driver hits someone intoxicated so you become liable knowing
that the driver would engage in the tortious conduct of driving drunk
- Example of 3: Driver is purchasing alcohol for an underage minor that gets drunk and commits
a tort…driver becomes negligent for that action
- Here, there was a common scheme to engage in assault (scare the defendant), the second person
who didn’t cause the harm is tied in through a common plan or scheme to engage in the assault
3. Market Share Theory → Liability based on market share of each of the manufacturers
• Justification: deals with how much risk you imposed on public at large and thus
they are allowing this remedy to the plaintiffs because this would punish
manufacturers for risk imposed on the public at large
→ Under the Washington scheme, defendants are first allowed to exculpate themselves by
proving by the preponderance of the evidence that they were not the manufacturer of the product
that injured the plaintiff. Unexculpated defendants are presumed to have equal market shares,
totaling 100%. Each defendant then has the opportunity to rebut this presumption by showing that
its actual market share was less than presumed. If any defendants succeed in rebutting this
presumption, the liability shares of the remaining defendants who could not prove their actual
market share are inflated, so that the plaintiff receives a 100% recovery.

- Court said that when we consider the relative position of the parties and the results that would flow if the
plaintiff was required to pin the injury on one of the defendants only, a requirement that the burden of
proof on that subject be shifted to defendants becomes manifest. They brought about a situation where the
negligence of one of them injured the plaintiff, hence it should rest with them each to absolve himself if
he can. If one can escape the other may also and the plaintiff can be remediless.
- Compare to Ybarra v. Spangard – a patient injured while unconscious on an operating table in a hospital
could hold all or any of the persons who had any connection with the operation liable even though he
could not pinpoint a specific person. The court was considering whether res ipsa loquitur could be availed
by the plaintiff, rather than where the burden of proof lay, but the effect of the decision is that the plaintiff
has made out a case when he has produced evidence which gives rise to an inference of negligence which
was the proximate cause of the injury. It is up to defendants to explain the cause of the injury.

Hymowitz v Eli Lilly

Remedy here is market share liability

Plaintiffs allege that they were injured by the drug DES, which was ingested by their mothers during
pregnancy. They seek relief against the DES manufacturers. These cases are part of nearly 500 similar
actions pending in the courts in New York.
DES was a preventative miscarriage drug that ingested during pregnancy. The drug was never patented
and approximately 300 manufacturers produced the drug, with companies entering and leaving the
market continuously during the 24 years that DES was sold for pregnancy use. Women who took DES
generally never knew who produced the drug they took and there was no reason to attempt to discover
this fact until many years after ingestion, at which time the information was not available and due to
the latent nature of DES injuries, many claims were barred by the statute of limitations before the
injuries were discovered the statute began to run upon the discovery of the latent effects of exposure to
any substance and for one year revived causes of action for DES exposure have been barred. Plaintiffs
sued the defendants for damages. The D moved for summary judgment and the trial court denied the
motion. The appellate division affirmed, and the defendants appeal in this court.

The defendants argue that summary judgment should be granted because none of the plaintiffs could
identify the manufacturer of the drug that allegedly injure them. The defendants also moved on statute
of limitations grounds arguing that the revival of the actions was unconstitutional under the state and
federal constitutions, and that the complaints, therefore, are time barred and should be dismissed. Court
affirms appellate decision.

Court looked at the alternative liability doctrine – it generally requires that the defendants have better
access to information than does the plaintiff, and that all possible tortfeasors be before the court.
Alternative liability rests on the notion that where there is a small number of possible wrongdoers, all
of whom breached a duty to the plaintiff, the likelihood that any one of the injured the plaintiff is
relatively high, so that forcing them to exonerate themselves or be held liable is not fair. In DES cases,
there is a greater number of possible wrongdoers who entered and left the market at different times.
Years also elapse between the ingestion of the drug and the injury. It is not fair to apply the alternative
liability doctrine in this case because of the number of possible manufacturers.

Court also looked at concerted action theory – provides for joint and several liability on the part of all
defendants having an understanding, express or tacit, to participate in a common plan or design to
commit a tortious act. For drug companies, ther is nothing in the record beyond this similar conduct to
show any agreement, tacit or otherwise, to market DES for pregnancy use without taking proper steps
to ensure the drug’s safety.

Where identification of the manufacturer of a drug that injures a plaintiff is impossible, New York
courts will apply a market share theory, using a national market, to determine liability and
apportionment of damages. Court chooses to apportion liability so as to correspond to the overall
culpability of each defendant, measured by the amount of risk of injury each defendant created to the
public at large. This is an equitable way to provide plaintiffs with the relief they deserve, while also
rationally distributing the responsibility for plaintiff’s injuries among defendants.
• A defendant cannot be liable if it did not participate in the marketing of DES for pregnancy use
if a DES producer satisfies its burden of proof of showing that it was not a member of the
market of DES sold for pregnancy use, disallowing exculpation would be unfair and unjust.
• Liability is based on the overall risk produced, and not causation in a single case. Liability is
several only and should not be inflated when all participants in the market are not before the
court in a particular case.

Liability is based on the market share of each of the manufacturers of the drug → justification for
national market deals with how much risk you imposed on the public at large (this justifies
imposing national market)
• Measure using national market to determine liability and apportionment of damages for the
purpose by which they are creating this remedy
 • They are allowing this remedy to the plaintiffs because this would punish manufacturers for
risk imposed on the public at large

Problem here is the way that plaintiff encountered the product → here dealing with products that do not
have a patent – because if patented we would know who did it

In this case, there were so many potential defendants. In summers, either one did the bad act. The
defendants can be brought into the court room in order to shift the burden onto them, you can identify
and bring them, you can name them.
- You also have a multitude of plaintiffs with that huge class of defendants. Collectively defendants
produced this product that collectively placed a risk on these group of plaintiffs, but you cannot draw a
connection between one plaintiff and one defendant
- They apportion liability based on market share
What are they going to do for the plaintiffs for proving causation?
- They basically accept it as groups of plaintiffs and groups of defendants and eliminate traditional
cause in fact from the individual plaintiff’s case
- They court used a national market, despite not advertising directly to the injured state, the product
was tied to a national market which makes it easier to bring claims forward (big groups instead of
individual claims)…only way to exculpate yourself as a defendant here was to show that you didn’t sell
the drug to be used in the way that it produced the defect
- If the plaintiff isn’t there to bring suit, the court still collects because you have an indivisible injury
with multiple defendants and can show cause in fact → Defendant will be liable up to the full amount
of recovery (apportioned between defendants, if 3 defendants are bankrupt and one is loaded, the
loaded one pays it all), and plaintiff will recover 100%

Concurring opinion – would adopt a market share theory of liability which would provide for the
shifting of the burden of proof on the issue of causation to the defendants and would impose liability on
all the defendants who produced and marketed DES for pregnancy purposes, except those who are able to
prove that their product could not have caused the injury.
- DES plaintiffs who are unable to identify the actual manufacturer of the pill ingested by the mother
would only be required to establish
1. That the plaintiff’s mother ingested DES during pregnancy
2. That the plaintiff’s injuries were caused by DES
3. And that the defendant/s produced and marketed DES for pregnancy purposes.
- Afterward, the burden of proof would shift to the defendants to exculpate themselves by establishing, by
a preponderance of the evidence, that the plaintiff’s mother could not have ingested their particular pill.
Of those who are unable to exculpate themselves, their respective share of the plaintiff’s damages would
be measured by their share of the national market of DES produced and marketed for pregnancy purposes
during the period in question.

The Special Case of Toxic Harms

Tort law not best remedy for Environmental Situations
1. Problems of Identification – toxics of all sorts often breed disease rather than cause immediate
injury. As a consequence, the tort system is severely tested. Since diseases do not occur
instantaneously, there are serious time lag issues. Identification is ordinarily a routine issue of
cause in fact at common law, but is a costly enterprise that relies on types of evidence and
probability judgments which can be regarded as ill-suited to traditional resolution through the
adversary process
2. Problems of Boundaries – claims are potentially boundless. Victims of exposure not yet fear ill
fear that it is only a matter of time before they show signs of pathology.
 3. Problems of Source → environmental harm is very often collective harm. Toxins are frequently
produced by a vast number of discrete enterprises, each making independent decisions about the
extent to which they will degrade and endanger the commons. Traditional tests for causal
responsibility operate in a foreign territory when they are employed in these cases. They are
premised on a wrongful act that in itself triggers accidental harm, an act that can be isolated and
pinned down as consequential.
**Toxic harms pose a unique challenge to a tort system premised on adversary treatment of easily
identifiable two-party accidents.

PROXIMATE CAUSE (SCOPE OF LIABILITY)

What is the question proximate cause is addressing?
Duty → when we’re gonna apply the measuring stick
Breach → asks what the measuring stick is
Cause in fact → how we link the failure to measure up to the harm
Proximate cause → Usually something that the defendant attacks and not something the plaintiff proves
* Make sure to distinguish between a cause in fact and proximate cause problem.

The final element that a plaintiff must prove is that her harm fell within the scope of the defendant’s
liability, in other words, that the harm resulted from the risks that made the defendant’s conduct negligent
in the first place.
• There are some intervening causes that are so foreseeable that they will never be superseding as a
matter of law.
• Medical malpractice as an intervening cause will always be foreseeable
• If the defendant’s negligence merely furnished a condition by which the injury was possible, and
a subsequent independent act caused the injury the existence of such condition is not the
proximate cause of the injury.

The proximate cause requirement is a policy determination, arising out of a judicial sense that a
defendant, even one who has behaved negligently should not automatically be liable for all of the
consequences, not matter how improbable or far reaching.

Proximate Cause General Rule → Only the general type of harm needs to be foreseeable
Proximate Cause = Defendants are not held liable for unforeseen injuries
*Proximate Cause = within the scope of the reasonably foreseeable risk created by the Defendant’s
conduct
o Precise sequence of events or precise manner in which the harm occurs need not be foreseeable
o Magnitude of injury does not need to be foreseeable
o No liability will lie for reasonable risks or unforeseen risks
The rule of proximate cause in the liability phase (foreseeability test) DIFFERS from the rule of
proximate cause in the damages phase (the directness test or eggshell skull rule)

[a]n actor's liability is limited to those harms that result from the risks that made the actor's
conduct tortious. - the inquiry fundamental to all proximate cause questions . . . is whether the
harm which occurred was of the same general nature as the foreseeable risk created by defendant’s
negligence
- Only the general type of harm caused by defendant’s conduct need be foreseeable in order for proximate
cause to be met; the precise extent of harm and the precise chain of events leading to the harm need not be
foreseeable
- As a general rule, proximate cause can still be satisfied even where the precise manner in which the
harm occurs is unforeseeable, so long as the type or general class of harm which occurs is foreseeable.
proximate cause means that the injury that resulted must have been within the “scope of the [reasonably
foreseeable] risk” created by defendant's conduct.

TYPES OF TESTS FOR PROXIMATE CAUSE

1. Risk Rule→ Factfinder would be asked whether or not the type of harm, the way it came about,
the time frame, was of the type of harm that would have made the conduct negligent to begin
with. looks at the range of harms (more particularized version of foreseeability)
2. Foreseeability → (1) the way the harm came about; (2) The type of harm caused (broader context
of what you can see as being a factor)
3. Substantial Factor→ (1) number of other causes; (2) Time frame; (3) Superseding cause

What is the point of proximate causation?

In situations where we have something unusual, something unexpected → where we want to leave
factfinder situation to give them the option of NOT holding defendant liable even if everything else is met
• We want to give the factfinder this opportunity because we are deciding one of several things
here → the exact sequence leading to the harm; type of harm; way harm came about → doesn’t
seem to be sufficiently connected to all other elements to decide whether we think it is fair or not
to hold defendant liable

Example of why we have proximate causation → Frat brothers get a pledge drunk, put him in the back
of a car, drop him off in the middle of nowhere and tell him to find his way home. He dies because he is
hit by a meteor. → this is why we have proximate cause.

UNEXPECTED HARM
Benn v Thomas
Example of when defendant will not be relieved of liability (uses scope of the risk)

Benn suffered a bruised chest and broken ankle after Thomas (defendant) rear-ended Benn’s vehicle.
Benn died of a heart attack six days later, and Benn’s estate (plaintiff) sued. Benn had a history of
coronary disease, diabetes, had suffered a heart attack, and was at risk of having another. The medical
evidence presented at trial was divided as to whether the accident caused Benn’s death. Benn’s estate
requested that the trial judge instruct the jury on the eggshell plaintiff rule.

Proximate cause is safety net to factual causation → because it basically says that what you did, and the
resulting harm WAS SO UNREASONABLE that you should not be liable (i.e. meteor) BUT if you
have some pre-existing condition than EGGSHELL P rule applies and proximate cause CANNOT
come in to save the day

Eggshell P Rule → requires defendant to take his plaintiff as he finds him, even if it means that he
must compensate Plaintiff for harm an ordinary person would not have suffered

Eggshell rule only covers arguments addressing extent of harm

o In this case, notion of bruised chest which fits into the physical proximity of perceived harm →
thus the hit to chest could lead to activating the already their illness

Polemis
Directness Approach
→ The owners of a vessel chartered its use to the Appellants for the purposes of carrying, among other
things, petrol to Casablanca. While unloading the cargo in Casablanca, a wooden plank fell into the
hold containing the petrol and caused an explosion. The fire completely destroyed the vessel
→ The owners, charging the chatterers with negligence, claimed the value of the vessel from the
charterers. The charterers responded that the fire was a remote consequence of their actions, so they are
not responsible
→ The actual anticipations of the negligent party are irrelevant when considering whether the resulting
damage is remote. In this case, the fire was a direct result of the negligent act and therefore the
charterers are liable for the fire
→ That damage that might result when a wooden plank falls while discharging cargo is a foreseeable
consequence of the negligence, whatever that damage might be.

The exact way in which damage or injury results need NOT be foreseen for liability to attach, the fact
that the negligent act caused the result is enough
• Fire was foreseeable consequence of the negligence

Overseas Tankship (UK) v Mort’s Dock & Engineering Co (The Wagon Mound)
The natural consequences rule is overruled and reasonable foreseeability test is adopted

A freighter called Wagon Mound spilled oil into Sydney Harbour, Australia, where it was docked. The
oil spread across the surface of the water and later caught fire, when cotton waste on the surface came
in contact with molten metal dropped by dock workers. The resulting fire damaged the wharf and two
ships. In a separate action, the wharf operator sued Overseas Tankship Ltd. (Overseas) (defendant)
under a negligence theory

The present action was brought by Miller Steamship Co. (Miller) (plaintiff). Miller owned the ships
that were badly damaged in the fire. Miller sued Overseas, the Wagon Mound’s owner, under theories
of negligence and nuisance. The trial court found in favor of Overseas, concluding that the likelihood
of the oil igniting was so slight that the damage to Miller’s ships was not reasonably foreseeable.

Problem with natural consequences rule → leads to instances where negligent party is liable for both
direct trivial foreseeable damage and ALL unforeseeable and grave consequences too → this takes law
beyond the principle that a man should be liable for the probable consequences of his actions

What makes act negligent? You can foresee that if you release oil from your ship it would cause harm
to some dock owners – SO somebody could be harmed and therefore you owe duty of care
• BUT, the dock burning down – question becomes was that foreseeable? ANSWER here was
NO because as far as anybody knew, the fact that oil in water meant it couldn’t ignite

HOW IS FORESEEABILITY DIFFERENT IN OUR FACTUAL CAUSATION ANALYSIS THAN

IN DUTY ANALYSIS?
• Foreseeability with regards to duty is focused on negligence
• Foreseeability with regards to proximate cause has to do with whether we should hold someone
liable

SUPERSEDING CAUSES
Section considers role of intervening forces or actors in proximate cause inquiry
ON EXAM: Distinguish these from cause-in-fact situations that would require a ‘but for’ analysis
Premise → Talking about sequence of causes (one falling between Defendant’s negligence and the harm
suffered)
• Sometimes unforeseeable force, such as an unprecedented storm, raises an issue about defendant’s
negligent conduct: is such a natural occurrence one that the defendant should have anticipated and
taken precautions against? HOWEVER, sometimes the defendant has been negligent, and claim is
that an intervening force or third-party conduct is unforeseeable or has produced harm different from
that for which defendant should be held liable

These causes sever the chain OR at least relieve defendant of liability for that part where there is a
supervening cause (supervening = given legal significance)

Doe v Manheimer

Intervening Conduct (rape behind the bushes) → recovery against primary party if the intervening
conduct was in the scope of the risk created by the negligence

No proximate cause here for man who had negligently overgrown bushes. No reason to foresee the
bushes would lead violent criminal assault

Proximate cause: an actual cause that is a substantial factor in the resulting harm.

Substantial factor test: reflects the fundamental inquiry to all proximate cause questions: whether the
harm that occurred was of the same general nature as the foreseeable risk created by D’s negligence.

Restatement (second) 442B: A negligent defendant, whose conduct creates or increases the risk of a
particular harm and is a substantial factor in causing that harm, is not relieved from liability by the
intervention of another person, except where a harm is intentionally caused by a third person and is not
within the scope of the risk created by a defendant’s conduct. In such a case, the third person has
deliberately assumed control and all responsibility for the consequences of his act is shifted to him.

Wagonmount
- What kind of theory of causation are they stating? Foreseeability
- Defendants were transporting benzine in a boat, someone dropped something causing it to catch on fire
- Being ignited wasn’t something that could have really been foreseeable rejecting polemis (most
jurisdictions would not accept the ruling as a matter of law, and that this is an appropriate application of
any of these documents)

D’s Negligence → Harm

- There are certain intervening acts leading to the harm, not all intervening events may be legally relevant,
but those that are, are considered ‘superseding causes”

- When are the facts good enough to give to a Jury question and when are the facts so clear that the jury
could not find anything BUT that conclusion

Kinsman Case (p.419)

Example of Superseding Cause Situations

D owns dock on river and gets rid of the anchor by moving to ‘deadman’ (anchor) but crew says they
need it and throw anchor doing so negligently and jamming up other anchors → Flows down river and
crashed into another boat (breaks that boat free), then hit another boat (break that boat free), -- then at
 mouth of river was a drawbridge – they call Buffalo city and tell them to open bridge – half hour later
drawbridge not opened up and crash into drawbridge -- P was owner and whole place flooded

Question Becomes: Is dockowners negligence in maintaining the ‘deadman’ (but for deadman ship
wouldn’t have broken free) separated over 2-3 hours and other intervening negligent acts should that be
considered to NOT be a proximate cause?
• Answer comes down to whether this type of harm could be foreseen and even if don’t use that and
use scope of risk analysis you would still have same problem
• Court decided substantial factor – the harm here is flooding, if ship had broken free and crashed
into another ship and both fetched up on bank would result in flooding THUS, the reason why
doctrine is slippery because what you choose to focus on is key to whether foreseeable or not
• Court decided they didn’t have to perceive a particular sequence THEY ONLY HAD TO
PERCEIVE A GENERAL TYPE OF HARM

UNEXPECTED VICTIM
Palsgraf v Long Island Railroad
Most famous case in tort law
Difference Between Andrews vs. Cardozo’s Analysis
Andrews creates appropriate test for duty/proximate cause

- Passenger at the defendant’s station is injured. As a result of her injury, she couldn’t work a day in
her life, kids had to quit school to work.
- What the court accepts as the facts are probably false or missing an additional fact.
- Someone is trying to jump on defendant’s train and he starts falling off, someone pushes him back on,
he drops a package that was in his hands which had explosives that created a blast which knocked over
6ft scales that hit Ms. Palsgraf.
- It seems unlikely for the injury to occur that way, they think that when people ran away they knocked
down the scaled
- This doesn’t matter from the perspective of Cardozo and the duty analysis, but it matters to Andrews’
analysis of proximate clause

Cardozo
There is no duty because the plaintiff was not in the zone of danger (legal question)
• States liability for damages based on negligence exists only where the injuries to the plaintiff
were reasonably foreseeable from the act or omission committed – duty only to people that
defendant can foresee

Andrews
Duty runs to the world and foreseeability should be a policy question. Duty will run to whoever is
actually hurt
• Andrews wants foreseeability OUT of the duty analysis and let’s deal with it as to whether
there was a breach of the duty and whether that breach was the cause of the proximate harm
• Duty runs to the world at large and negligence toward one is negligence to all. Andrews denies
to foreseeability test and instead relies on a test that traces a line based on public policy while
considering the natural and continuous sequence, direct connection between the events, too
many intervening causes, and whether the result was too remote in time and space.
• Restatement embraces Andrews view of the world – takes incorporating foreseeability
into duty analysis may cause issues

Standard of Duty
- Length of the measuring stick & when it’s applied
- Reasonable Care
- For ‘when it’s applied’ you use the standard of practices like customary practice, res ipsa, etc...

DEFENSES; COMPARATIVE FAULT

Context for Defenses Is Indivisible Injury

Defenses to Negligence
It’s the obligation of the defendant to raise the negligent defences, and if they don’t the plaintiff can
proceed forward with the claim
- Failure to raise a defense will likely result in malpractice
- Identify the issues and try to find the defenses, if you think statute of limitation is an issue start with
that, if you think the defendant has a shut case, start with that
- Start with SOL, express assumption of risk, a plaintiff that may be immune, because if that’s the
case, then you move onto the next question

In US there are only about 4 jurisdictions left which still use OLD common law of contributory
negligence which would deal with all or nothing (Baltimore & Ohio Railroad)

Contributory Negligence
Failure of an injured plaintiff to act prudently, considered to be a contributory factor in the injury
suffered, and sometimes reducing the amount recovered from the defendant.
- This is something that the D does not have to plead on the outset because it is ties to the substance of the
underlying suit

Limitations on Contributory Negligence

Even if contributory negligence was found in a particular case, several rules emerged over the years that
limited the impact of such finding in barring a plaintiff’s recovery

a. Recklessness → virtually ALL courts decided that contributory negligence was defense only in cases
of negligence → IF misconduct of defendant was more serious – recklessness or willful misconduct –
the appropriate defense would’ve been contributory recklessness or contributory willful misconduct

b. Last Clear Chance → contributory negligence was also disregarded under circumstances that came
to be called “last clear chance” → In these cases P behaved carelessly and got into dangerous
situation that led to injury

c. Refusal to impute contributory negligence → respondeat superior → doctrine that has given rise to
imposition of vicarious liability on employers
▪ With exception of derivative actions, virtually all imputed contributory
negligence has been eliminated over the years

d. Jury’s Role → most modern technique for ameliorating perceived harshness of all or nothing
contributory negligence rule (prior to adoption of comparative negligence) was the increased
frequency with which courts found that reasonable persons could differ over the characterization of
the plaintiff’s conduct -- so that a jury question was presented

COMPARATIVE NEGLIGENCE

Issues with Comparative Fault:

1. Which approach?
2. What is included in the term “fault”?
3. Is joint and several liabilities retained?
4. Are uncollectable shared reallocated?
5. How are settlements accounted for?

Different approaches:
Some jurisdictions will apportion fault if you caused harm no matter whether you’re a party to the
litigation, some say that only parties should be sued.

System where a negligent plaintiff’s recovery depended on how serious plaintiff’s negligence was
compared to the defendant’s
Three principles versions had developed
1. “Pure” Comparative Negligence → P who is 90% to blame for an accident can recover 10% of the
damages from the defendant who was found to be 10% at fault
a. Whatever fault the jury assigns for their own fault, the jury reduces from their
recovery

2. Modified System “Greater Than” (2 and 3 lumped together) → under one variant, a plaintiff who
is at fault can recover as under the pure system but only so long as that negligence is “not as great as”
the defendant’s
a.

3. OTHER Modified System “As Great As” → plaintiff can recover as under the pure system but
ONLY so long as that negligence is “no greater than” the defendant’s
• Critical Distinction → Are we comparing plaintiff’s fault to each defendant OR comparing the
plaintiff’s fault to the Defendants (plural)?
▪ Looking at the combined fault of defendants → this is what MOST jurisdictions
follow
• What is jury looking at/comparing to determine the percentages? How about if jury decides
that one of these parties wasn’t just negligent but was RECKLESS? → Answer UCFA (Section
1(a))
o NOTE: comparative fault act NOT like Iowa and has a purified system approach

UNIFORM COMPARATIVE FAULT ACT

Section 1. [Effect of Contributory Fault].
(a) In an action based on fault seeking to recover damages for injury or death to person or harm to
property, any contributory fault chargeable to the claimant diminishes proportionately the amount
awarded as compensatory damages for an injury attributable to the claimant's contributory fault but does
not bar recovery. This rule applies whether or not under prior law the claimant's contributory fault
constituted a defense or was disregarded under applicable legal doctrines, such as last clear chance.
(b) "Fault" includes acts or omissions that are in any measure negligent or reckless toward the person or
property of the actor or others, or that subject a person to strict tort liability. The term also includes breach
of warranty, unreasonable assumption of risk not constituting an enforceable express consent, misuse of a
product for which the defendant otherwise would be liable, and unreasonable failure to avoid an injury or
to mitigate damages. Legal requirements of causal relation apply both to fault as the basis for liability and
to contributory fault.

What Section 1 Says → a plaintiff’s contributory fault doesn’t bar his recovery but instead
apportions damages according to the proportionate fault of the parties
o Harms Covered → specific application of this principle is confined to physical harm to person OR
property
o BUT, it necessarily includes consequential damages deriving from the physical harm, such as doctor’s
bills, loss of wages or costs of repair or replacement of property
▪ Does not include → economic loss resulting from tort such as negligent misrepresentation or
interference with contractual relations or injurious falsehood, or harm to reputation resulting from
defamation

Section 2 (Apportionment of Damages)

Percentages of fault. In comparing the fault of the several parties for the purpose of obtaining
percentages there are a number of implications arising from the concept of fault. The conduct of the
claimant or of any defendant may be more or less at fault, depending upon all the circumstances including
such matters as
(1) whether the conduct was mere inadvertence or engaged in with an awareness of the danger involved,
(2) the magnitude of the risk created by the conduct, including the number of persons endangered and the
potential seriousness of the injury,
(3) the significance of what the actor was seeking to attain by his conduct,
(4) the actor's superior or inferior capacities, and
(5) the particular circumstances, such as the existence of an emergency requiring a hasty decision.
• The common law rule of joint and several liability and equitable shares of the obligation of
joint tortfeasors continues to apply under the Act – this is true whether claimant was
contributorily negligent or not – P can recover the total amount of his judgment against any
defendant who is liable
• Reallocation. Reallocation of the equitable share of the obligation of a party takes place when
his share is uncollectible. Reallocation takes place among all parties at fault. This includes a
claimant who is contributorily at fault.
o Reallocate the share of party who is uncollectible based off percentages of others
(i.e. if D is uncollectible and 20% liable and A is 40% liable – A would take on 40% of
that 20%)

NOTE: You would have to defend the empty chair if you are Plaintiff and you settled with Defendant B
→ P’s attorney has to defend because they either settled with B or they know that they cannot collect
from them and then take on responsibility that the people in the suit are the ones most at fault

NOTE: This is for Indivisible Injuries

For the purpose of the ‘Act’ fault includes acts/omissions of negligence OR recklessness Act is
telling us that when we do have another actor whose conduct is not merely negligent but can be described
as these other things IT DOES NOT change the outcome and jury is still tasked with dividing these
things up BECAUSE fault definition wise includes recklessness

Comparative Fault
• Whose fault should be in the 100% pie? (Fault → indivisible injury to the Plaintiff)
o Who’s included? Defendants/Plaintiffs
• If there is a group of 3rd parties out there and if they are immune/unidentified there are a variety
of reasons as to which you cannot sue them
o Should they be included in the apportionment? But if P cannot sue due to
immunities what is the practical consequences? → ANSWER → WHATEVER
portion is assigned to them is a portion that the plaintiff WILL NOT get
When Comparative Fault DOES NOT apply → Where you articulate that P’s own faulty behavior is a
proximate cause issue not a matter of an affirmative defense. (Ex: Tanker broke free from moorings due
to negligence of the dock owner, dock went aground and spilled oil on the ground – Overseas).

A is 40% at fault → 40/80 = 0.5 * 20,000 = 10,000

B is 30% at fault → 30/80 = 0.375 * 20,000 = 7500
C is 10% at fault → 10/80 = .125 * 20,000 = 2500
D is 20% at fault → uncollectable (reallocate to others according to fault – 20,000)
$100,000
- Need to subtract the amount being reallocated with the denominator (since 20% is being reallocated, you
subtract that from the 100)
- If the choice is to reallocate the uncollected portion, then the formula you use should accurately
reapportion and that formula requires you take the amount you are reapportioning multiplied by %of fault
party that is receiving reallocation / % fault of all parties - the party whose fault is reallocated
- The objective is that the full amount gets reapportioned equitably amongst all other parties
- If defendant counterclaims that they suffered a loss too, what do we do? The Uniform commercial says
it is not setoff against eachother (not subtracted from amount owed). If B is claiming 25k from A and A is
claiming 50, you usually pay eachother, unless agree to setoff
- In a pure system, percentages don’t matter. If fault goes to 50%, this does matter to the other two. 50%
wouldn’t affect the ‘greater than’ because it’s equal. However, it affects the “as great as” for having the
same amount, plaintiff will be barred from something.
- In joint and several liabilities, a defendant may be liable to pay up to 100% even if 30% at fault

When comparative fault doesn’t apply:

- Situations where the jurisdiction may conclude that a plaintiff can’t be comparatively at fault as a matter
of law because the plaintiff is unable to care for their own safety (For example a child having sex with
teacher, the school and teacher owed a duty to care for that child and the child didn’t need to take that
care themselves)
- Would we have absolved the plaintiff for caring for their own safety because of a certain situation?
Physical disabilities, etc…
- Situation where the defendants conduct is along with the plaintiff’s conduct is but for a cause for the
plaintiff’s harm, but we decide that the plaintiffs conduct is so much more significant than the defendant
and plaintiff is liable as a proximate cause…outcome is to relieve defendant of all liability
- If now you have adopted comparative fault, does this mean that res ipsa loquitor can only be used by the
plaintiff if they weren’t comparatively at fault. Plaintiff shows that the act could not happen but for
negligence,
- Several jurisdictions say that the plaintiff can rely on circumstantial evidence and even if they
are responsible for their own harm, they may be successful if they can show that the defendant’s
action is what caused the harm
- In a contributory negligence case, one the plaintiff is determined to be at harm, they lose their case. But
in this comparative fault system, they just lose the fault
- We have P → brings claim against D → Defendant says plaintiff was comparatively at fault → Jury
divides that fault between defendants and plaintiff’s contribution
- Plaintiff is on defendant’s property and suffers a criminal attack on that property (Doe v Man). In a
comparative fault state, most fault will be in the third-party criminal that probably doesn’t have much
money and may not be able to be found. Should the 3rd party fault be apportioned to other defendants?
You have to look at the statute definition of fault, if it says intentional is allowed then it’ll probably be
allowed (this is all contingent on Defendant also having some fault)
- Then is it joint and several or several only? If several only, then they give a substantial amount
of fault to the 3rd party assailant meaning the plaintiff would lose a lot of money (Michigan is
mostly several). If joint and several liabilities, the defendant is liable up to 100%
- Book also introduces in the notes some considerations. The way in which partial settlements and
reallocation in UCFA, reapportionment may dissuade settlement. A is 10% at fault, B 45% and C 45% at
fault. B offers to settle with A for 25k, if A accepts the 25 and C is solvent and can pay 45k, then he could
get 70k. Is there a reason with reapportionment rules to dissuade from settling? If A doesn’t settle with B
and says that they only have 25k, A takes 25k, declares the other 25K to be uncollectable to the other
defendants to be restructured. C will pay 45k plus the amount B didn’t cover

Fritz v. McKinney
Whether or not the plaintiff’s own conduct before or after the harm being suffered should be treated as a
matter of fault which the percentage is being allocated or a question of factual causation. Or, that the
plaintiff’s conduct before or after the harm is the cause in fact of some identifiable loss, it’s the cause in
fact of some specific loss in which you cannot recover
- Jury brought verdict in favour of defendant by allowing to bring in evidence of Fritz’ past drug and
alcohol use. The court said this was too prejudicial for determining liability, but it is relevant when it
comes to calculating damages because they calculate how long he would have lived, how much he would
have worked, etc…which is affected by drug use

Avoidable consequences mean to treat the plaintiff’s behaviour as factual cause of harm and assert
that plaintiff can’t recover for them at all. For example, seat belt or helmet.
Ex: If the plaintiff wasn’t wearing a seatbelt when the defendant ran into his car, what do we make of that
fact? Some states say it has nothing to do with the negligence of the defendant but if what the plaintiff did
caused the accident then they’ll assign liability. Some other states say that you suffered way more harm as
a result of failing to wear a seat belt, but this is a harder determination → may bring expert to say for
example that you wouldn’t have hit your head on the glass had you worn your seat belt, then you can’t
claim those injuries. Some states say that if you’re not wearing a seat belt, you’re at fault for a determined
amount (Michigan is 5%). Some jurisdictions like Ohio don’t allow evidence that plaintiff wasn’t wearing
seatbelt or helmet fearing the jury will return full verdict against plaintiff resulting in no damages for the
harm done.
- After injury is failure to follow doctor’s advice flowing into some medical consequence, you
cannot recover. Some jurisdictions handle it through proximate cause, but for defendant’s
negligence they wouldn’t have gone to the hospital and but for the hospital they wouldn’t have
gotten stitches, etc… and they would sever the proximate causes. Other jurisdictions say give it to
the jury to decide and let them decide what percentage of fault to give to the plaintiff.
- Twen 2014 Mich COA case: Plaintiff signed sheet saying no blood transfusion. When the
kidney is rejected, the doctors use procedures that increases likelihood of needing blood
transfusion, so the doctors are forced to withdraw kidney and the plaintiff dies. They sue for
wrongful death for refusing to use procedures which would have resulted in blood transfusion.
Doctors argued that the outcome of refusing to give kidney was an avoidable consequence, but
the plaintiff did not allow for the blood transfusion. Choosing to refuse the blood transfusion is
the cause in fact of the death thereby relieving liability for the defendants. Even if there was
malpractice, defendant’s choice to refuse necessary treatment for a kidney replacement becomes
the cause in fact most PROXIMATE to the death.

Distinguish between basic approaches when dealing with P’s own conduct before or after harm
comes about - are you going to treat it as factually related at all? P’s best argument is no. OR
assigning some percentage of fault. OR avoidable consequence doctrine/proximate cause thing - this
severs causal chain and relieves D of liability. OR factual cause to some of the harm, not all, but
some and P can’t recover from that harm.

Better be sure to know which element of which prima facie case is relevant.
Fault: Jurisdictions choose through statute what their definition of fault will be. Michigan includes
intentional tort behaviour in their statute, however the uniform comparative fault only counts
unintentional torts.

Cause in Fact Review

Cause in fact and Causation are different elements, each of which must be satisfied before the defendant’s
prima

Cause in fact is whether or not the negligent act of the defendant is legally sufficient to say or connected
to the harm suffered. We do that basically by saying imagine an alternate universe that the defendant
doesn’t do what the plaintiff alleges, would they have suffered the harm. We spent time looking at
situations where the ‘but for’ test would not work → it is insufficient in causes like multiple sufficient,
use of circumstantial evidence, and concerted action.
- Alternative liability and market share liability

Devices that allow the plaintiff to prove cause in fact are multiple sufficient causes, use of circumstantial
evidence, concerted action
- You must prove cause in fact for each individual defendant
- Because of the circumstances that the plaintiff suffered harm, should we still relieve the defendant of
liability in some way? Foreseeability, substantial factor, scope of the risk
- Judge Andrews dissent in Palsgraf explains these distinctions nicely (bottom of 428 - top of 429)

- When you think about foreseeability and substantial factor. Foreseeability asks the type of harm, the
sequence and how the harm came about. SF asks how long a timespan and how many intervening causes
between them. These tests are all aimed at capturing these considerations. These come up after you’ve
decided there’s a breach of duty that did in fact cause harm.
- More and more factors that intervene, is it less and less likely the defendant is considered the
substantial factor? Intuitively it seems so
- If the jurisdiction didn’t decide on a specific proximate cause test, you may want to argue all three and
see which will work best
- On the exam you evaluate the prima facie cases and if the proximate cause analysis is straight
forward. You don’t have to, in every prima facie case, lay out each proximate cause if its not
needed
- Foreseeability focuses on whether the way the harm came about foreseeable, is the type of the harm
foreseeable, and scope of the risk involves a broader set of considerations

- If you have a several liability systems then you don’t worry about apportionment since they will only be
liable for their share

Matsuyama:
- Loss of opportunity: Commits malpractice with result that plaintiff loses some chance of a better out
come but that loss is not greater than 50% of the entire opportunity, if it were, it would be a classic
malpractice suit. More likely than not, had the doctor correctly diagnosed, they would be able to walk.
- However, if you only had 30% chance then you would fail the malpractice case since you can’t say
“more likely than not”. But if you get an expert to say that they did get that 30%, then the doctor is held
liable for their duty to maximize health and well-being, so they get total damage and only give 30% of
that.
- Ex: Had a chance to get full mobility in leg but the doctor’s malpractice prevented that
opportunity from presenting itself. Has the jurisdiction adopted loss of opportunity as a theory of
liability? If no, then the plaintiff is out of luck.
- In a loss of chance case, you have a doctor’s malpractice that resulted in a significant loss (even if its not
more likely than not) they will treat it as a sufficient cause and recover from the complete loss.

- Think of pure economic loss theory

- Negligent medical care is foreseeable
- In a situation where defendant is a state and being sued by a private party then he would be giving the
state immunity or the public immunity doctrine.
- If a federal right or liberty has been violated then you had a federal right under the statute and the
municipal immunity will not apply

Defenses CON’T

Express Assumption of Risk

Is the agreement explicit about releasing the defendant from the defendant’s own negligence. And if it is,
nonetheless will a court refuse to enforce the agreement for public policy reasons. There are two scenarios
a court will not enforce an express assumption of risk: 1) Those situations in which courts have decided
that express assumption of risk is voidable meaning that it’s not in all circumstances not enforceable, it’s
that it won’t be enforced due to the particular circumstances of the case. A circumstance may include:
youth and incapacitated (plaintiff was either too young to understand the risk or they were not in the
position due to mental capacity unwilling to appreciate the agreement they were entering). 2)

Hanks v Powder Ridge Restaurant Corp (snow tuber v resort)

The law does not favor contracts that relieve person from his own negligence

Hanks (plaintiff) was injured while snowtubing at Powder Ridge. Powder Ridge is open to all members
of the public over the age of six or taller than 44 inches. Before snowtubing, Hanks and all other
patrons were required to sign an agreement which purportedly released Powder Ridge from liability for
any negligence. The trial court dismissed Powder Ridge on summary judgment, finding that by signing
the agreement Hanks had expressly released Powder Ridge from liability for its own negligence. Hanks
appealed on the basis that the agreement did not release Powder Ridge from liability, and that the
agreement is unenforceable because it violated public policy.

Here, the agreement expressly released Powder Ridge from liability for any of its future negligence.
However, contracts that violate public policy are unenforceable. The purposes of the torts system are to
compensate innocent parties, to shift loss to those responsible, and to deter wrongful conduct. The law
does not favor contracts that relieve a person from his own negligence.

A release signed by a participant, invitee, or patron exempting a ski resort from liability for injuries is
generally valid and enforceable, assuming:
1. The form and language of the release are sufficiently conspicuous and legible such that a reasonable
person could not fail to realize that he or she is releasing liability, and
2. The parties to be released are sufficiently identified. The release may not, however, be overbroad,
ambiguous, or a contract of adhesion.
• A release must not be against public policy, such as where it releases one from responsibility
for harm willfully or wantonly inflicted, or caused by gross negligence.

The court in Tunkl v. Regents of the University of California, 383 P.2d 441 (Cal. 1963), identified six
factors for determining whether an exculpatory agreement violates public policy:
(1) whether the agreement concerns a type of business suitable for public regulation;
 (2) whether the party seeking exculpation provides a service that is important to the public or a matter
of practical necessity;
(3) whether that party provides the service for any, or nearly any, member of the public who seeks it;
(4) whether, because of the essential nature of the service, that party has an advantage of bargaining
strength against a member of the public seeking the service; (5) whether that party provides only an
adhesion contract, and does not allow the public to pay additional fees to obtain protection from
negligence; and
(6) whether the member of the public seeking services is placed under the provider’s control and is
subject to the risk of the provider’s carelessness.
If there is a valid assumption of risk then the plaintiff can’t sue, and the case is over with, if there is one
of these on the exam, DEAL WITH IT FIRST. Defendant is offered a service that they need, it is
construed against the drafter If the express clause says negligence, what do you do now? Can you craft
your cause of action so it’s not negligence, like reckless behaviour?

Was the service the defendant was offering a kind of service that the plaintiff didn’t really had a choice?
What did the express assumption of risk actually say?
- You would argue that this express assumption should be construed against drafter, that it’s void, or that
it’s voidable as a matter of public policy

Implied Assumption of Risk

1) Primary
- Danger is inherent in the activity, no way to engage in acitivity without confronting danger, plaintiff
appreciates danger, and willingly encounters it. If the plaintiff falls under here, then that satisfies duty

Murphy v Steeplechase Amusement (Ride of “The Flopper” v Amusement Park)

Implied assumption of risk exists for normal use of amusement park rides

Steeplechase Amusement Co. (Steeplechase) (defendant) owns and operates an amusement park at
Coney Island, New York. One attraction is called “The Flopper.” It consists of a moving belt that
causes passengers to be thrown backward or aside based on its jarring movements. The belt runs in a
groove and has padded walls and padded flooring. Murphy (plaintiff) stepped on the belt and attempted
to ride it. He was accompanied by his wife and other members of their party. The belt suddenly jerked
and Murphy, his wife, and other members of the party fell down. Most were uninjured, but Murphy
suffered a fractured kneecap

Issue: Whether one who voluntarily participates in a sport that includes inherent, known dangers has an
action for negligence if those dangers occur.

One who takes part in sport accepts the dangers that inhere in it so far as they are obvious and
necessary
• In this case, fall was foreseen as one of the risks of the adventure – after all name of ride was
“The Flopper”
Volenti Non Fit Injuria → he who consents cannot receive an injury

One who voluntarily participates in a sport accepts the inherent dangers in it so far as they are
obvious and necessary to participation.

Assumption of Risk is tackled in a DUTY analysis

 Line to be drawn – breaking the rules within the context of the sport that is dealt within the rules
or culture of the sport v. a line so clearly outside the scope of the sport
That’s the analysis and distinction you are trying to make
If the risk is inherent in itself in the activity, then defendant doesn’t owe a duty to the plaintiff.

2) Secondary

Davenport v Cotton Hope Plantation (Injured Party v Property Owner)

Situation where the defendant does have control over the danger and ways that the defendant could
minimize risks against the plaintiff and their conduct could be deemed as negligent, but the plaintiff
knows of the danger. They appreciate it and expose themselves to the risk. This is important because of
the UCFA the define fault as a term that constitutes as unreasonable ____ has an impact on whether it
is an absolute bar to recovery, or when plaintiff can still get some recovery. Jurisdictions differ here.

Defense of assumption of risk is not complete bar to recovery in modified comparative negligence
state, UNLESS degree of fault arising therefrom is greater than the negligence of the defendant

There are four requirements to establishing the defense of assumption of the risk:
(1) the plaintiff must have knowledge of the facts constituting a dangerous condition;
(2) the plaintiff must know the condition is dangerous;
(3) the plaintiff must appreciate the nature and extent of the danger; and
(4) the plaintiff must voluntarily expose himself to the danger

NOTE: a few states have retained assumption of risk as absolute defense. Jurisdictions that retained
this defense because what the defendant has to prove is that the plaintiff individually and subjectively
knew about the risk of the harm generated which is different than comparative fault (did the defendant
use reasonable care) which is an objective standard. UCFA goes the way of SC and says “just give it to
the jury”

Start off with express assumption of risk → did the defendant owe the plaintiff a duty to protect
from this harm? Defendant will argue it was not.

PREEMPTION – STRICT LIABILITY

Situation where US state law is in conflict with federal law and the question becomes → Should federal
law pre-empt state law (override) because federal law is supreme under Article 6)

Definition → Preemption stands for the principle (derived from Supremacy Clause) that a federal law can
supersede or supplant any inconsistent state law or regulation – also termed federal pre-emption

Riegel v Medtronic (Injured Medical Device User v Catheter Manufacturer)

State common law claims against an FDA – Approved Medical Devices are Preempted

A balloon catheter ruptured in Riegel’s artery while he was in surgery. He and his wife (plaintiffs)
brought a products liability suit against the Medtronic (defendant), the manufacturer of the catheter,
asserting a variety of New York state common law claims. The trial court awarded summary judgment
to Medtronic on the grounds that the state claims were preempted by the federal Food, Drug, and
Cosmetic Act (FDCA). The FDCA provided that a state may not establish or use any premarket safety
approval requirement for medical devices that were “different from, or in addition to, any requirement
 applicable . . . to the device” under federal law. The United States Court of Appeals for the Second
Circuit affirmed the grant of summary judgment. The United States Supreme Court granted certiorari

Court’s determination of a preemption claim in medical device cases generally breaks down into
three considerations:
(1) has the FDA established specific federal requirements that apply to the particular device;
(2) is there a particular state requirement with respect to the medical device; and
(3) does the state claim create requirements that are different from, or in addition to, the specific
federal requirements? A lack of specificity in either the federal or the state requirements may
defeat a preemption argument

There is implied and expressed preemptive doctrines – it’s not just what congress puts in the statute but
also court will affirm that the state law is preemptive so there are two different versions, one where
congress expressly says so and one where it is implied. You need to look at what was intended by the
act and whether they wanted to preempt all these tort claims. Michigan says that if a drug was approved
by the FDA, then as a matter of law the drug cannot be considered defective and no suit can be brought
against a seller: unless turns out manufacturer or seller committed fraud and lied to the FDA, or that
they bribed an FDA official
Here, you have a federal regulation saying when a product is safe, defendant’s product meets that
requirement and is by law, not defective.

Under common law, compliance with statute doesn’t usually remove negligence. Our situation is
different from negligence per se, there you get a statute and breached at a matter of state law.

Implied pre-emption is when even if congress doesn’t say anything about state law, if it becomes
impossible to comply with federal regulation and follow the state law, then the state tort suit is
implied pre-emptively

Wyeth v Levine
Implied Preemption

If Congress thought state claims posed an obstacle to its objectives, it could have expressly preempted
such claims. Citing Riegel, Congress only included a preemption provision which relates to medical
devices, not prescription drugs. Its silence and knowledge of state tort litigation must mean that
Congress did not intend FDA oversight to be the only means of ensuring drug safety

Congress didn’t expressly intend for the FDCA to pre-empt all state common law tort claims, and with
respect to prescription drugs, state tort law claims offer an additional important layer of consumer
protection which complements, and does not obstruct, FDA regulation

Like above, SOL is to be raised at the beginning because you have no claim if it has expired

STATUTES OF LIMITATIONS
Prescribe time within which suit MUST be filed and impose hefty penalty for failing to comply → those
plaintiffs who do not file in time lose their claim. For intentional torts it’s a shorter time frame

Statutes of Limitation
1. Length of SOL
• Find length in statute
2. Accrual → when clock starts
 • Point when victim is injured
• Negligence cause of action accrues when there was a duty, breach and cause of harm (all of the
elements of your negligence case are present)
• Two things slow down accrual
• Common law remedy: discovery (if the reasonable person has not discovered that the
defendant’s conduct is related to the harm that is suffered, then we won’t start that clock
until the reasonable person is put on notice that someone may be on notice for causing
harm) or statutory called tolling. Once the clock has started and it runs to the end, the
party can try and get a ‘grace period’ to add time to their SOL
• Accrual occurs when all of the elements of a cause of action are present. The main consideration
is when the harm occurs because the duty, breach, causation and damages are generally all
occurring at the same time → time of the injury. However, in situations like toxic harm, you
sometimes don’t know when harm takes place
3. Tolling/Grace Period
• Age
• Incompetence (mental disability)
• Tolling are the provisions that prevent the clock from starting to tick despite their being accrual,
tolling prevents the clock from starting. Subject to the accrual, if the patient is rendered of
unsound mind, does this toll the clock? If the person becomes of unsound mind after the accrual
then it just continues, if it happens before accrual then the time is tolled
• Tolling/grace period happen outside of the limitation period
• Grace period can be added onto the end of the limitation period
4. Statute of Repose
• May impose a much stricter deadline than a statute of limitation. A statute of repose, in contrast
to a statute of limitations, "is designed to bar actions after a specified period of time has run from
the occurrence of some event other than the injury which gave rise to the claim.
• Protects certain defendants from a suit being brought. It starts, it runs, it stops, and no claim can
be brought even if no one was hurt during the period. The statute of repose for those that provide
building materials and runs when the material is placed into the building. It won’t occur when
someone is hurt, instead the statute will determine when the cause of action will arise to give
people some assurance that past the point when the building goes up past 10 years, you don’t
have to worry about being sued. The difference between the two is the starting point, SOL starts
with person getting hurt (all elements present → Accrual), SOR starts with something else
generally a producer of products (certain number of years after a product is marketed
• Usually longer than SOL
5. Estoppel & Discovery (both stop the statute of limitations from starting)

With most traumatic injury claims, the time when the claim accrues concurs with the time when victim
can file suit – thus, physical injury is necessary before such victim can file suit → having suffered
cognizable harm, both final element of tort claim is in place and statute begins to run
- Estoppel is an equitable principle that says if a defendant prevents the plaintiff from becoming aware of
the accrual of the claim

The discovery period is more of a common law device that basically says that at some point even if the
cause of action has accrued, there may be reasons for the person to not connect the experience of harm to
conduct. Some states say if the reasonable person would begin to wonder about the experience of harm
and the defendants conduct, will prevent the statute of limitation period to run until the reasonable person
would draw the connection

Rationale for Statute of Limitations

 1. Serve to encourage more accurate resolution of litigation by avoiding faded memories and stale
evidence; and
2. Provide repose to those who might be sued by limiting the period in which they are subject to suit

Child Exception – grace period

CLASS 17: STRICT LIABILITY

STRICT LIABILITY
Liability that does not depend on actual negligence or intent to harm
Does not displace the default rule of negligence liability; it instead provides recovery for plaintiff who is
unable to prove negligence

- Justifications for Strict Liability

1. Loss spreading
2. Risk minimization
3. Loss allocation
4. Efficiency
5. Fairness/non-reciprocal risks

NEW ELEMENTS so new prima facie case

• Causation still present
• Still talking about physical harm
• What you learned about causation and physical harm are still relevant to strict liability they do not
change
• DUTY AND BREACH ARE WIPED OUT

Up until this point, we were at a place where fault was a burden the plaintiff had to shift the cost of harm
to the defendant. At the time of this case, there was also the notion of torts intended to protect interests in
property.
Trespass to land and nuisance were not torts that plaintiff could allege in Rylands. What must the plaintiff
prove then – was the question in this case. This context emerged with the right to property and the
invasion of this interest caused by the defendant, that the outcome was the adoption of strict liability. This
then became the root for other cases – going to be this arena in tort law beyond cases concerning
protection of property interest for which tort law will expose defendant to strict liability (D engaged in
activity and it in fact caused harm).

Rylands v. Fletcher
Facts Fletcher (plaintiff) leased several underground coal mines from land adjacent to that
owned by Rylands (defendant). Rylands owned a mill and built a reservoir on his land
for the purpose of supplying water to that mill. Rylands employed engineers and
contractors to build the reservoir. In the course of building the reservoir, these
employees learned that it was being built on top of abandoned underground coal
mines. This fact was unknown by Rylands. After the reservoir was completed, it
broke and flooded Fletcher’s coal mines. This caused damage to Fletcher’s property,
and Fletcher brought suit against Rylands. Justices in the lower court differed as to
whether Rylands should be liable, and the decision was appealed to the Court of
Exchequer Chamber. There, Rylands was held strictly liable for damage caused to
Fletcher’s property by water from the broken reservoir. Rylands appealed.
Issue Whether a person who disrupts the natural state of real property by lawfully bringing
something onto his land that, if it escapes, can potentially do harm, is strictly liable
for any harm caused by the escape.
Holding Yes
Reasoning If Rylands’ building of a reservoir on his property was an unnatural use of that
property, Rylands is liable for damages caused to Fletcher’s property. However, if, in
the natural course of Rylands’ use of his property, water accumulated on either the
surface or underground and damages Fletcher’s coal mine, Fletcher would not have
an action for damages. The building of a reservoir to bring a large mass of water on
Rylands’ property may not be considered a natural use, as it impacts the amount of
water that may potentially reach Fletcher’s coal mine. Thus, Rylands may be liable
for damages.

The question in this case is the basis of liability. Must show that defendant brought
something onto his land… this has nothing to do with a direct application of force that
has to do with person or property. Can the plaintiff proceed forward on the basis of
fault? Probably not in this case because the only option is that regardless of the fault
only strict liability can be imposed. It seems reasonable and just that neighbour that
brought something on property that is not naturally there…[get after]. If you choose
to engage in act and this act ultimately causes someone harm you are liable not
because you failed to exercise care, but because you engaged in the act at all.

Today, this is known as trespass to land. What nuisance and trespass to land share in
common is that they emerged at about the same time. The question was should we
require proof of fault in holding the defendant liable for the harm when it comes to
writ of trespass and trespass on the case. The answer is yes. When it came to these
scenarios of an invasion of someone’s property, trespass as understood today, or an
interference with the use and enjoyment of your land without any kind of physical
invasion, tort law has retained this strict liability understanding of this.
 Ratio A person who disrupts the natural state of real property by lawfully bringing
something onto his land that, if it escapes, is capable of doing harm, is strictly
liable for any harm occurring as a natural consequence of the escape.

A person who allows a dangerous element on their land which, if it escapes and
damages a neighbour, is liable on a strict liability basis - it is not necessary to
prove negligence on the part of the landowner from which has escaped the dangerous
substance.

Nuisance and trespass

- They emerged around the same time that tort law was gripping with the question of whether a proof of
fault should be required when holding a defendant liable for harm with writ of trespass and the answer is
yes, they will require fault. But when it comes to the scenario of an invasion of someone’s property
(trespass), or an interference with the use and enjoyment of your land without any kind of physical
danger, tort law has retained strict liability understanding of those torts. When the plaintiff is suing for
nuisance (anything that is not a physical invasion). Nuisance asked what the use of the plaintiff’s
property, use of the defendant’s property, is the defendant’s use inconsistent with the use of property in
the area?
- Trespass requires you be on the land without permission and is the product of your volition (must
choose to be on someone else’s property)

1. What is the element

2. What does it mean?
3. What facts are present that

Trespass to land:
- Act
- Intent
- Enter the land possessed by another
- Cause something to enter the land of another
- Fail to remove something from the land of another
- Without permission
- Entry can be on the land, over the land, under the land
- Can be described as a strict liability tort → a defendant can commit the tort without being aware of the
invasion of another’s interest

Sullivan v. Dunham
Facts Dunham (defendant) hired two men to clear a tree on his property with dynamite.
As a result of the blast, debris fell on a public highway, striking and killing Sullivan.
Her estate (plaintiff) sued Dunham and the two men. The trial court instructed the
jury that it did not need to find negligence to establish liability. A verdict was
entered for Sullivan, and the appellate division affirmed. Dunham appealed.
Issue Is a defendant who creates an explosion on his property absolutely liable for injuries
resulting from debris that falls on a person traveling on a public highway, regardless
of whether the defendant was negligent?
Holding Yes
 Reasoning A person may not use his property in a way that causes direct injury to another’s
person or property, regardless of whether the injury was intentional or negligent. In
Hay v. Cohoes Co., 2 N.Y. 159 (1849), the defendant was liable when a blast used
in digging a canal caused debris to fall on the plaintiff’s house. The court in Hay
noted that the defendant had a right to dig the canal, and the plaintiff had the right to
undisturbed possession of his property, and that based on public policy the property
right must win out. The use of land is limited by the higher right of others to
possession of their property, regardless of the extent or motives of the use. In the
similar case of Tremain v. Cohoes Co., 2 N.Y. 163 (1849), the court excluded
evidence that the work was done in the most careful manner possible, because the
only question was what the defendant’s actions did to the plaintiff’s injury. These
cases govern here, as the safety of the person is even more sacred than the safety of
property. Although Sullivan did not own the land where she was struck, she had a
right to be there. The safety of property and person is generally superior to a
particular use of a property by its owner. Here, the safety of travelers on a public
highway is superior to the improvement in a particular manner of Dunham’s
property. Dunham may be held absolutely liable for Sullivan’s injury and death,
regardless of whether Dunham’s conduct was negligent. The judgments of the trial
court and appellate division are affirmed.
Ratio A person may not use his property in a way that causes direct injury to
another’s person or property, regardless of whether the injury was intentional
or negligent.

The right of personal safety trumps the right of property owner to some
particular use of land
• In this case, hired two men to clear tree on property with dynamite

Blasting Cases → carry dangers that are unavoidable – no way of really

reducing the dangers
- Tort law at the time of decision of Ryland was still in its early revolution that fault would be a part of
the burden that the plaintiff would have to shift the cost of harm to the defendant. You also had notions of
torts intended to protect interest in property (trespass to land and nuisance).

From Rylands v Fletcher, we see the emergence of strict liability in Sullivan that you could say is to some
extent the notion of protecting property interest or that what’s going on in the sense is that the defendant
is engaded in activity on his or her property and has consequences off that property which has an outcome
of physical harm that leads to the imposition of strict liability

Indiana Harbor Belt Railroad v American Cyanamid

Defendant was a major manufacturer of chemicals, including acrylonitrile. Acrylonitrile is flammable

at temperatures above 30 degrees Fahrenheit, is highly toxic, and possibly carcinogenic. Defendant
leased railroad cars to transport acrylonitrile to purchasers. When one of these cars arrived at the Blue
Island yard just south of Chicago, it was noticed that acrylonitrile was gushing out of a bottom outlet
on the car. Although only about of a quarter of the acrylonitrile escaped, the Illinois Department of
Environmental Protection ordered the Plaintiff switching line to take decontamination measures costing
$981, 022.75. One count of the complaint asserted that the transportation of acrylonitrile in bulk
through the Chicago metropolitan area is an abnormally dangerous activity. The trial court found that
strict liability applied and granting summary judgment in favor of Plaintiff on that count.
This is an illustration of the application of the restatement factors by a judge who is probably seen in
the same way as Cardoso (has the same effect). District court found strict liability and the Court of
appeals reversed the damages and finding. The Court held that shipping carcinogenic and toxic
chemicals is not an ultra-hazardous activity because he emphasized the inability to eliminate risk by
exercise of reasonable care. If they can be eliminated by reasonable care, use negligence, and if not, use
strict liability. Some activities are so inherently risky that they can’t be made less dangerous. This
approach is a bit of an exception. Negligence unless we need to use strict liability.

The third element is said to be the most important one. If the answer is yes, then you should use
negligence. He said that he is talking about transporting the chemicals as inherently dangerous, not the
chemicals themselves, and this could be ameliorated by taking reasonable measures. Posner says you
can kind of eliminate strict liability in all circumstances and there is no place where strict liability can
operate. This is a good question because there isn’t really a good answer to this: courts can look at stare
decisis,

Posner asks whether the Hand formula works here, whether it can be employed. This is an exception to
the rule – fault must be shown is the traditional rule, and only if that principle can’t be employed is it
then appropriate to jettison it and simply say the behaviour of the defendant generates massive risks
and that alone is enough for liability (as long as it in fact causes the harm). He applies restatement
factors to reach conclusion that the defendant shouldn’t be liable for harm caused by the escape of a
substance that is by its nature an irreducibly toxic, flammable, and carcinogenic substance. This
suggests that if you look at the first three factors you could conclude it was abnormally dangerous.
This is not a good case for strict liability.

The issue is what is the activity the manufacturer engaged in? it is not the manufacturing, but the
shipping. These factors don’t lead to strict liability for the defendant in this case. Posner points out
there is a big burden to expect the shipper to know all possible rail routes, but with the idea of re-
routing, it would increase the possibility of accidents because you increase the length of the journey.
The reason this is not a strict liability case is because negligence theory would should that the
defendant shouldn’t be liable. The activity was wrong in this case – that is where the analysis failed.

Posner suggests on page 529 – inappropriate use is not the transportation of the chemicals but the
residential living.

2nd Restatement → Factors considered in deciding if an activity is abnormally dangerous:

(1) is the probability of the harm great;
(2) is the harm that would ensue if the risk materializes great;
(3) can such accidents not be prevented by the exercise of due care;
(4) is the activity not a matter of common usage;
(5) was the activity inappropriate to the location where it took place;
(6) is the value of the activity to the community high.
• Rationale while looking at these factors → Note: third Restatement has slimmed down to just
two

Courts have ruled numerous activities abnormally dangerous in various cases, including; pile driving,
crop dusting, rocket testing, firework displays, hazardous waste disposal, and oil wells

Unlike storage cases dealing with abnormally dangerous activities, in this case it is manufacturers,
rather than actors, who are sought to be held strictly liable. Abnormally dangerous activities are a
 property of activities rather than substances in the contemplation of the law – Cyanamid makes the
chemicals BUT they do not transport it

Notes following this case discuss ______: suit had been brought against the carrier of the chemical.
Common law had a principle that common carriers should not be subject to strict liability because they
don’t have a choice in law as to decide to accept something for shipment and is therefore unfair to hold
them to strict liability. Court comes up with a series of factors like cost of the loss, are the risks reciprocal
or not, if carrier is defenseless so are the plaintiffs, etc. this is a Segway into the theoretical material that
forms the bulk of products and defect liability.

Nuisance - lies outside of tort law because the conduct being evaluated doesn’t have to be negligent,
involve D wanting to interfere with use and enjoyment of someone else’s land, but just has to be the
substantial interference that is unreasonable. That’s all it has to be. With these examples of strict liability
to interfere with property interests, we move to restatement of torts which then tries to mine the cases in
which strict liability in tort out of Ryland.

What is the thrust behind the restatement factors? Why are they the ones courts rely upon?
1. High degree of risk of harm to person or property → probability of the risk
2. Likelihood harm will be great → magnitude of the loss
3. Inability to eliminate the risk → burden
4. Extent to which activity is matter of common usage
5. Inappropriateness of activity where it occurred
6. Extent value to community is outweighed by dangerous attributes

**The first three factors are a review of the operation of the Hand formula.

Posner asks whether the Hand formula works here, whether it can be employed. This is an exception to
the rule – fault must be shown is the traditional rule, and only if that principle can’t be employed is it then
appropriate to jettison it and simply say the behaviour of the defendant generates massive risks and that
alone is enough for liability (as long as it in fact causes the harm). He applies restatement factors to reach
conclusion that the defendant shouldn’t be liable for harm caused by the escape of a substance that is by
its nature an irreducibly toxic, flammable, and carcinogenic substance. This suggests that if you look at
the first three factors you could conclude it was abnormally dangerous. This is not a good case for strict
liability.

When applying the restatement factors in American, they reach the conclusion that the defendant
shouldn’t be liable for harm caused by the escape of a substance that is by its nature an irreducibly toxic
and flammable product. This would seem to suggest that it would lead you to suggest that it’s an
abnormally dangerous thing

Nuisance (won’t have a fact pattern question requiring the knowledge of Nuisance)
- D has created or sustained a condition knowing of its impact on P's interests. A nuisance claim may,
however, be based on conduct that is negligent, reckless, or abnormally dangerous.
- That constitutes a substantial and unreasonable interference with e P’s use and enjoyment of land
- Substantial Interference:
- With the physical condition of the land (e.g., caused by vibration or shock waves).
- Disturbance of the comfort or convenience of the occupant (e.g., caused by offensive odors or
excessive noise).
- Unreasonableness Interference:
- Involves a balancing gravity of the harm against utility of the conduct engaged in by D.
Factors considered in balancing harm against utility include:
 - The amount of harm resulting from the interference;
- The relative capacity of P or D to bear the loss;
- The nature of the parties' respective uses; the nature of the locality; and who began their use
first.

The common law had this principle that common carriers should not be subject to strict liability since
they don’t have a choice in law to accept something as shipment, they can’t choose not to carry something
because its dangerous, so it seems unfair to hold them strictly liable for the carrying of dangerous
substances.

If you have products liability on the exam, you have several causes of action possible: negligence, strict
liability in tort for products (not the same as Fletcher), warranty, etc… Strict product liability requires a
consumer find some defect in the product and likewise in enterprise liability.

CLASS 18: ENTERPRISE LIABILITY; PRODUCT LIABILITY

Enterprise Liability → describes situations where you have liability being imposed where someone has
engaged in an activity where others are also engaged in the activity, but it is limited number, and all
people are offering same service

**Rationale – an enterprise should bear the risks of accidents it produces because 1) an enterprise as
superior risk bearing capacity compared to victims who would otherwise bear the costs of accidents, and
2) an enterprise is generally better placed to respond to the safety incentives created by liability rules than
is the party suffering harm.

Economic Analysis For Strict Liability

Strict tort liability means that someone who causes accident is liable for victim’s damages even if the
injurer couldn’t have avoided inflicting injury by exercise of due care → activity based approach

Justifications for Strict Liability:

1. Loss spreading: Spread losses caused by accidental injury (this is WHY)
• Better to have everybody pay a little bit than one person pays a lot
• Central goal of strict liability is to spread losses caused by accidental injuries among broad class of
persons
o This loss-spreading or distributive justice goal helps to assure that the effects of otherwise
devastating losses are ameliorated by diffusing them among a broad array of appropriate
entities and individuals
• Under loss-spreading goal, decision whether to impose strict liability hinges partially on whether the
actor engaging in the injurious activity is an appropriate party to incur and then redistribute, or
“spread”, a loss
o Professor Gregory – perhaps strongest argument for strict “enterprise” liability stemmed from
fact that industry was the most practical institution to administer a loss-bearing system

2. Loss Avoidance or Risk Minimization:

• Sometimes referred to as “primary” reduction of accident costs, aims at imposing liability in way that
reduces the number and severity of accidents
• This goal requires appraisal of actor’s ability to systematically evaluate the risks of his activities and
make sound cost-benefit decisions about manner of operations as well as the level and location of the
activity, safeguards, and alternatives
• Calabresi describes this general deterrence function as seeking to impose accident costs on those
engaging in the injurious activities who could “reduce accident costs most cheaply”
• Several reasons why loss avoidance goal, albeit entitled to consideration, should be accorded
less weight than loss spreading considerations
1. On one hand strict liability may be imposed on defendant even if that defendant is innocent –
YET very existence of loss avoidance goals by definition assumes that some aspect of
defendant’s activity could have been changed for the better
2. Serious concerns exist about efficacy of general deterrence → Deterrence or loss avoidance
incentives, requires an often unattainable knowledge of relevant risks by responsible decision
makers
3. Threat of liability can frequently over-deter, producing negative results
• Point at which you can more greatly reduce risk of harm with a burden that is not great. It establishes
efficiency (Hand formula).
• Want to deter conduct either entirely or reduce its frequency.

3. Loss allocation: Where the injury is initially born (This is WHO)

• Objective is for a loss to be initially internalized/borne by the enterprise whose activities engendered
it and whose activities are sufficiently connected to the loss to make it appropriate to reflect the loss
in the cost of the enterprise’s services
• Enterprise liable even though they didn’t produce the product that caused the harm. Loss spreading
explains why the idea of a whole enterprise being liable makes sense, and loss allocation explains
why it is the enterprises to which the loss is being spread. Loss spreading is why, and loss spreading
is who.
• Where the injury is born or who it is internalized to.

4. Efficiency
• Fourth goal is to achieve an acceptable level of administrative costs – sometimes this goal is
expressed in terms of reducing the “tertiary costs of accidents, meaning the systemic transaction costs
involved in imposing liability
• This tertiary goal tells us to question constantly whether an attempt to reduce accident costs, either
by reducing accidents themselves or by reducing their secondary effects, costs more than it saves

5. Fairness/ non-reciprocal risks

• Focuses on relative magnitude and quality of the risks created by the activities of the defendant and
those of the victim
• A belief between two innocent persons, the initiator who benefits from the ultimately injurious activity
should be liable
• Paradigm of Reciprocity → It seems fair that where there is a non-reciprocal risk it is appropriate
to hold me liable
o i.e. if I am flying a plane over your property → I’m imposing risk on your but you’re not
imposing risk on me
• According to paradigm, “a victim has a right to recover for injuries caused by a risk greater in degree
and different in order from those created by the victim and imposed on the defendant – in short, for
injuries resulting from the non-reciprocal risks
• Concept of fairness is slippery and not one that can lead you to easily conclude that the fairest thing to
do is impose strict liability. One way to understand this is the question of justifying it by asking are
the risks between P and D reciprocal? Did P engage in action that leads to a corresponding risk to the
D? for some tort scholars, a lot of people would get rid of a lot of risks and ask whether risks are
reciprocal.
Enterprise liability can be extracted from the Heimewitz case and why it wouldn’t be a good
illustration of enterprise liability. The theory is that individual entities like legally unrelated
corporations or people can be held jointly liable as party of the same enterprise

LIABILITY FOR DEFECTIVE PRODUCTS

Starting point for this is actually contract law

When it concerns the product itself and whether it functioned the way you intended for it to function –
you are talking about contract
BUT
If the product, however, causes harm to you or other things you own than you’re talking about type of
loss that is handled by tort law

Manufacturer
|
Wholesaler
|
Retailer
|
Purchaser

Prima Facie Case for Product Liability:

1. D commercial seller
2. Places product in stream of commerce
3. Product was in defective condition when it left the hands of the seller making it unreasonably
dangerous
4. Defect in fact causes harm
5. Harm
6. Defect proximately causes harm

Cardozo is working off a series of cases which are cited here. This case is probably the other decision
other than Palsgraf for which he is remembered. Opened the door to the evolution of product liability as it
is understood today. Prior to this case, the starting point was whether D sold product to P. if they did, and
if they warranted it, then there will be liability for harm. If not then there isn’t. it was a very limited
starting point. Had to directly sell to P.

Winterbottom v. Wright – the postmaster general in England contracting with Winterbottom to repair
postal carriages. Winterbottom is the driver. No liability or duty of care owed to Wright – privity. Wright
owed a duty to the postmaster. Two exceptions were carved out of this:
1. Thomas v. Winchester – mislabeled poisoned and sold to druggist. Druggist sold to customer who
was later poisoned. Strictly there was no cause of action because of the privity. The only person who
might have a claim was the druggist. Outcome under common law at the time: if the product itself is
inherently dangerous (by its nature will cause harm if used as intended), then we will not
require privity. There was still a rejection of any extension of the doctrine.

Macpherson v. Buick Motors

Facts Buick Motor Co. (Buick) (defendant) is an automobile manufacturer. Buick sold an
automobile to a retailer, who sold it to MacPherson (plaintiff). The automobile
contained a defective wheel which had been manufactured by another company. The
 defect was unknown; however, Buick could have discovered the defect through a
reasonable inspection. The defective wheel caused the automobile to collapse while
MacPherson was driving, and he was injured. MacPherson brought suit against Buick
for negligence. The lower court entered judgment for MacPherson and Buick
appealed.
Issue Whether a manufacturer of non-inherently dangerous articles owes a duty of care to
anyone beyond the immediate purchaser.
Holding Yes
Reasoning It was foreseeable that once an automobile was sold to the retailer, it would be
purchased by someone else such as MacPherson. Thus, Buick owed MacPherson a
duty of care to ensure the safety of the automobile and is liable for negligence for
failing to meet that duty. A manufacturer of articles that are not inherently dangerous
but that may become dangerous when improperly constructed owes a duty of care to
anyone beyond the purchaser who might foreseeably use the articles, when it is
reasonable to expect no further tests will be performed. This is an extension of the
rule imposing strict liability for injuries to any foreseeable user caused by inherently
dangerous articles such as poisons and explosives, as mundane products may be
transformed into inherently dangerous articles if they are manufactured negligently or
not properly tested. However, there must be knowledge by the manufacturer of a
danger which may result from negligent manufacturing, and the danger must not only
be possible but probable. If the negligent manufacturing occurs by a third party
responsible for making one aspect of a finished product, the final manufacturer will
only be liable for negligence if the defect could have been discovered through
reasonable inspection, and the final manufacturer fails its own duty of inspection.
Buick serves as a final manufacturer of automobiles comprised of various parts made
by other manufacturers. The defective wheel that caused injury to MacPherson was
made by a third party but was incorporated into one of Buick’s automobiles. Due to
the nature of automobiles and the speed at which they travel, Buick should have
known that a defective wheel could cause serious injury to the user of the automobile.
Additionally, when Buick sold the automobile to a retailer, it was foreseeable that the
automobile would be sold again to a purchaser such as MacPherson. Thus, the fact
that injury could certainly be caused by a defective wheel gave rise to a duty by
Buick to inspect its final products. Moreover, because MacPherson as a purchaser
was a foreseeable user of Buick’s automobiles, Buick owed a duty of care to
MacPherson personally. Buick failed this duty by not performing a reasonable
inspection of its automobiles and is liable to MacPherson for negligence. The
judgment of the lower court is affirmed.

There could certainly be a suit against the seller, in that they should have inspected
the wheel. If you abolish the concept of privity, doesn’t this naturally mean you can
go against the retailer, the manufacturer, etc. Any product, if made in a defective
fashion, is going to be like poison or other inherently dangerous products. This
becomes adopted in most of the states and leads into the evolution of product
liability. The important question is whether Buick made any representations about
the car, or will we assume in the absence of express claims we will imply there are
these claims? To whom do they run? This leads to an evolution behind broad liability
for products. This kind of goes back to the broad justifications of strict liability.
Ratio A manufacturer of articles that are not inherently dangerous but that may
become dangerous when improperly constructed owes a duty of care to anyone
 beyond the purchaser who might foreseeably use the articles, when it is
reasonable to expect no further tests will be performed.

Cardozo uses this case to do away with privity for limiting duty – and to discuss
when manufacturer owes a duty of care
Expands liability to include manufacturers as well

Consumer can sue manufacturer

Cardozo saying that NOT only the seller of the product who owes a duty of care
Duty of care is owed to foreseeable users of product
o Duty of care is owed to foreseeable users if the product is likely to cause
injury if negligently made

Impact of Inspection in this case

Manufacturer of finished product must also intervene → final manufacturer should’ve

caught the defect BUT didn’t and therefore as matter of proximate causation, the
liability of original manufacturer of defective tire ended and liability TOTALLY rests
with finished product

PRODUCT LIABILITY; TYPES OF DEFECTS

Bulk of tort litigation is either negligence OR product liability

As mass production in products began to develop and more people began to be injured → those contract
principles of caveat emptor etc… informed body of tort law as tort law involved into fault based
concepts (negligence and start of any negligence suit was duty → thus they informed us how body
developed → “unless you had relationship of being purchaser of product from the seller there was no duty
owed”)

Warranty
1. Express → what was actually said
2. Implied → the consumer and seller both have unspoken understanding about the quality of certain
products – THAT if violated would give basis that there was a breach of the contract
WITH REGARD TO ITS OVERLAP WITH TORT LAW
• This emerged in area of foods → implied warranty being when you buy product shouldn’t be any
foreign objects in food products → basis for some courts to hold people liable for some harms

NOTE: If you just give it to friend to use you are not a seller – But what if you sell your laptop and it has
defect then answer is still no BECAUSE you are not aware of any defects that might show up, you are not
an active seller in this market; the ultimate reason is that policy explanation for imposing strict
liability is not going to be fulfilled
• What can commercial sellers do that you selling your car to neighbor just cannot do? (1)
Risk Reduction (2) Loss Spreading

NOTE: Costco has capacity to spread the loss so despite being company that doesn’t really make anything
that is in their store they will likely be liable

Escola v Coca Cola

Majority vs. Traynor J Concurrence
Plaintiff, a waitress, was injured when a soda bottle broke in her hand as she moved it from the case to
the refrigerator. The defendant bottler used pressure to bottle carbonated beverages. An engine from
the bottle manufacturer testified at trial about how the bottles are tested and called these tests pretty
near infallible. The majority affirmed a plaintiff’s judgment and held that the plaintiff had properly
benefitted from res ipsa loquitur in her negligence action.

Majority → res ipsa loquitur (Factors that need to be shown)

Although not clear in case whether explosion was caused by excessive charge or defect in glass,
sufficient evidence to show that neither cause would ordinarily have been present if due care had been
used – D has EXCLUSIVE control over both charging and inspection of bottles – therefore, all
requirements necessary to entitle P to rely on res ipsa loquitur are there

Concurrence → Traynor J
Public policy demands that responsibility be placed where it will most effectively reduce the hazards of
life and health inherent in defective products that reach the market (this is reason why Traynor felt this
ought to be liability without negligence – strict liability)

Traynor J’s justifications for having strict liability for all product defects:
1. Loss Spreading → It raises the cost of doing business, which spreads the costs evenly so it’s
not too overwhelming for one person
2. It’s basically strict liability what we’re doing now
• The liability of the manufacturer to an immediate buyer injured by a defective product
follows without proof of negligence from the implied warranty of safety attending the
sale.
3. Public Policy → It puts the burden where it belongs
4. Buy without thinking → Consumers are encouraged to buy without thinking, and that raises the
duty owed to them
5. Discourages companies from allowing defective products onto the market

NOTE: though Traynor doesn’t win here – wins 20 years later in Greenman v Yuba Power

Greenman v Yuba Power

NOW strict liability

Majority says that basis for holding manufacturer liable should now no longer be tied to whether they
used reasonable care in making the product. Basically adopts explanations Traynor makes in
concurring opinion in Escola
• NOTE: Greenman is essentially the law rather than Escola

Major shift in tort law is that we will no longer look at the manufacture or what the seller did, but now
we will focus on the product, and whether it is defective making it unreasonably dangerous? If the
answer is yes, whoever put that product in the stream of commerce is liable.
Rationale → those people who put the product in the stream of commerce are both in the position to
remove the risk of having that product in the stream of commerce; they are better situated to allocate
the loss; and are more aware of what the risks of the product should be
• To show that a product was defectively manufactured you would have to show that it departs
from the intended design.
PRIMA FACIE CASE FOR DESIGN DEFECTS
1. Harm
2. By product sold by Defendant
3. Defendant is commercial seller of such products
4. Product contained defect when left hands of seller making it unreasonably dangerous; AND
• Failure to warn
• Manufacturing defect
• Design defect
5. Defect in fact and proximately caused the injury/harm

**Plaintiff must demonstrate that the product causing the injuries was in a defective condition
unreasonably dangerous to person or property at the time it left defendant’s possession.

THREE TYPES OF DEFECTS

1. Manufacturing Defect → when the product departs from its intended design, even though all
possible care was exercised in the preparation and marketing of the product
2. Defective Design → when the foreseeable risks of harm posed by the product could have been
reduced or avoided by the adoption of a reasonable alternative design by the seller or other
distributor, or a predecessor in the commercial chain of distribution, and the omission of the
alternative design renders the product not reasonably safe
3. Inadequate Instruction (Warnings): i.e. failure to warn; when the foreseeable risks of harm
posed by the product could have been reduced or avoided by the adoption of a reasonable
alternative design by the seller or other distributor, or a predecessor in the commercial chain of
distribution, and the omission of the instructions or warnings renders the product reasonably safe

Manufacture Defects
All plaintiff needs to show is malfunction → “This Coke bottle exploded and a million did not”
• Burden on plaintiff to show a malfunction (Price v GM)
To prove that the product departed from its blueprint or design specifications, usually the plaintiff need
only compare the allegedly defective product to the design. That comparison may require expert
testimony. Lacking direct evidence of defect, the plaintiff can still try to prove that the product was
defective by relying on circumstantial proof, as per the malfunction theory of defect.

Design Defects
A commonly shared design is the defining characteristic of a product line. Consequently, an allegation of
defective design implicates the entire product line, substantial expanding the manufacturer’s liability
exposure as compared to product-specific defects attributable to manufacturing flaws or mishandling →
involves strict products liability.

- The defendant has the burden of showing the product isn’t defective after the plaintiff shows that the
product has caused harm when there is no reasonable expectation for the consumer
- What’s the policy reason for this? It’s a question of ‘well if the plaintiffs don’t have consumer
expectations and they’re just the consumer, then who has all the evidence? It’s the seller, and if they have
all the evidence then let them bring it forward by showing the jury that this isn’t a defective product.

Design Defects
Barker v Lull Engineering
Idea that you will use consumer expectation test unless doesn’t work
Plays central role in Soule case
Plaintiff was injured when the high-lift loader he was operating overturned on a slope. Among other
alleged design defects was that the loader was not equipped with outriggers that would have provided
additional stability as a load was being lifted, increasing the center of gravity of the loader. The regular
operator of the loader – worried about the danger involved in the proposed lift on a sloping ground –
called in sick that day leaving it to plaintiff (inexperienced) to operate the loader. The court reversed a
defence judgment because the trial judge, ruling before Cronin had been decided, used the
unreasonably dangerous language in charge to the jury. The court found error in the trial judge’s
limitation to situations in which the product was used in the intended manner. Such a limitation would
prevent liability in situation where products are widely used for purposes for which they are not
intended. The appropriate phrase would require the product to be used in the “intended or a reasonably
foreseeable manner.”

Liability not limited to situations where product is used in its intended manner, but instead “in the
intended or a reasonably foreseeable manner.”
Two-Pronged Test for Consumer Expectation Test:
• P must demonstrate that the product failed to perform as safely as an ordinary consumer
would expect when used in an intended or reasonably foreseeable manner AND
• If in hindsight the jury determines that the product’s designed “embodies ‘excessive
preventable danger’—Here defendant has the burden (in CA—minority) to prove that product
should not be judged defective.
o i.e if complicated D has burden

Soule v General Motors Corporation

Jury should be instructed to use risk-utility test

• Soule (plaintiff) was driving her 1982 Camaro when she was struck by another vehicle near the left
wheel of her car. The collision bent the Camaro’s frame and tore loose the bracket that attached the
car’s wheel assembly to the frame. The wheel collapsed inward and hit the underside of the “toe
pan,” the slanted floorboard area beneath the pedals, causing it to crumple. Soule sustained
permanent injuries to both of her ankles. After the collision, the Camaro was purchased by a
salvage dealer, and except for the bracket assembly, no part of the vehicle was retained as
evidence. Soule sued General Motors Corporation (GM) (defendant) alleging that a defective
design of the Camaro allowed the left front wheel to break free and smash the floorboard into
Soule’s feet and ankles.
• At trial, the jury was instructed that in order to impose liability upon GM, Soule was required to
show that the Camaro failed to perform as safely as an ordinary consumer would expect. The jury
found for Soule and awarded $1.65 million in damages. GM appealed and argued that the trial
court erred in instructing the jury on the “ordinary consumer expectations in a complex design-
defect case.”
• The court of appeals affirmed the jury’s verdict, and GM appealed.

The risk utility test is used when there is a complex product that ordinary customers will have no real
clue about the performance that is expected

Risk-Utility Test
Under test, manufacturer is held liable if probability of injury X the gravity of harm/injury under
current product design is MORE than the cost of alternative reasonable design + the diminished
utility resulting from modifying the design
 • IN ENGLISH: Court considers if the economic costs are higher than the cost of changing the
product design (i.e. installing plastic guard) + the loss of use of product (new guard makes it
harder to use product)
• Essentially this is the HAND Formula applied to products

Third Restatement Favors This TEST → "A product is defective when, at the time of sale or
distribution...is defective in design. A product is defective in design when the foreseeable risks of harm
posed by the product could have been reduced or avoided by the adoption of a reasonable alternative
design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and
the omission of the alternative design renders the product not reasonably safe."

- Some states disregard consumer expectations, some accept it. Michigan never accepted strict liability
to begin with (600.2946) this statute statutorily abolished negligence per se in product liability cases

Camacho v Honda Motor Company

7 Factors that balance the attendant risks and benefits of a product to determine whether a product
design is unreasonably dangerous

In March 1978, plaintiff bought a new Honda Hawk motorcycle. In an intersection accident with a car,
plaintiff suffered severe leg injuries. Plaintiff and his wide sued carious parites in the chain of
distribution, claiming that the absence of crash bars to protect the legs made the product defective
under strict liability analysis.

Two mechanical engineers testified that the state of the art in mechanical engineering and motorcycle
design was such that effective leg protection devices were available at the time of the accident and
several manufacturers other than Honda had made such devides available as optional equipment. Also
argued that although room for further improvement existed at the time, crash bars were then available
from manufacturers other than Honda provided some protection in low-speed collisions and would
have reduced or completely avoided the serious leg injuries. The trial court granted summary judgment
and appellate court affirmed on the ground that the danger would have been fully anticipated by or
within the contemplation of the ordinary user or consumer. SC held that summary judgment was
improper, given the evidence that Honda could have been equipped with crash bars and would have
mitigated the injuries.

Examined the “crashworthiness doctrine” where a vehicle manufacturer can be liable in negligence or
strict liability for injuries sustained in a motor vehicle accident where a defect was not the cause of the
accident but caused or enhanced the injuries. The question is not whether the vehicle was obviously
unsafe but rather whether the degree of inherent dangerousness could have or should have been
significantly reduced. Doctrine does not require a manufacturer to provide absolute safety, but merely
to provide some measure of reasonable, cost-effective safety in the foreseeable use of the product.
Manufacturers, however, cannot be exempt from liability under the doctrine because the product is
foreseeable. Court adopts strict liability approach. A consumer is justified in expecting that a
product placed in the stream of commerce is safe for its intended use, and when it is not safe
liability action may ensue. The primary focus must remain upon the nature of the product under
all relevant circumstances rather than upon the conduct of either consumer or manufacturer.

Holding/Reasoning
Proper test for strict liability for a design defect is not whether a consumer contemplates the danger
created by a design defect, but whether the product is unreasonably dangerous based on the totality of
the circumstances. Under the crashworthiness doctrine, an automobile manufacturer may be liable
 either in negligence or strict liability for injures sustained in an accident, whether a manufacturing or
design defect caused or enhanced the injuries, even though it didn’t cause the accident itself. The duty
of a manufacturer extends to include a duty to exercise reasonable care to minimize the severity of
injuries suffered in foreseeable collisions by employing reasonable, cost-acceptable safety features.

Applying the restatement of torts §402A, strict liability applies only where a product’s defective
condition makes it unreasonably dangerous to consumers, over and above the dangerousness
contemplated by an ordinary consumer → HOWEVER, the court says that this ‘open and obvious’ test
which is similar to the ‘consumer expectation’ test is incorrect and instead should consider the nature
of the product under the totality of the circumstances, rather than on the consumer or manufacturer’s
conduct. They note that the consumer test is especially inappropriate where the danger and the
available alternative designs must be established by technical or scientific information. The court says
we should use the 7 factors to weigh whether a product is unreasonably dangerous developed in Ortho:
1. The usefulness and desirability of the product → its utility to the use and to the public as a
whole
2. The safety aspects of the product → the likelihood that it will cause injury and the probable
seriousness of the injury
3. The availability of a substitute product which would meet the same need and not be as unsafe
4. The manufacturer’s ability to eliminate the unsafe character of the product without impairing
its usefulness or making it too expensive to maintain its utility
5. The user’s ability to avoid danger by the exercise of care in the use of the product
6. The user’s anticipated awareness of the dangers inherent in the product and their avoidability
because of general public knowledge of the obvious condition of the product, or of the
existence of suitable warnings or instructions
7. The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the
product or carrying liability insurance.

FAILURE TO WARN
Context here is that product that may have been defective – avoids liability because there was adequate
warning

Here, words may reduce risk by instructing users in how to obtain the benefits from the product’s
intended use and in the care required for safe use. A threshold issue iis common knowledge and the duty
to warn: if the ordinary consumer already knows about the risk in question, the manufacturer has no duty
to warn.

Difference between negligence failure to warn claim and strict liability failure to warn:
Difference is who gets sued
• Strict Liability → the seller gets sued (seller being anyone who put it into stream of commerce)
• Negligence → suing person who can be held liable for failure to warn

3 Species of Failure to Warn:

1) Failure to warn → was there a warning?
2) Inadequate warning → Does warning tell the user what the danger is?
3) Adequate warning but delivered in an inadequate fashion → there is a warning that tells you what
the danger is, but for instance it is hidden in the fine print.

Safety Instructions and Warnings

Hood v Ryobi (User of Saw v Manufacturer)
 Would fall under 2nd species with inadequate warning because warning didn’t include all possible
injuries

• Hood (plaintiff) purchased and used a saw manufactured by Ryobi America Corp. (Ryobi)
(defendant). Despite at least seven clear, simple warnings not to do so in the manufacturer’s
manual, Hood removed the blade guards from the saw and used it for home carpentry. The
warnings stated that using the blade guards was necessary to avoid “severe injury” and “possible
serious personal injury.” Hood lost part of his thumb and lacerated his leg due to an accident
caused by using the saw without blade guards. The saw blade detached from the saw and struck
Hood. He brought suit against Ryobi alleging the company failed to comply with its duty to warn
because the warnings about using blade guards did not explain the consequences potentially
resulting from failure to use the guards. He stated that he was unaware of dangers from the saw
blade detaching from the saw, but that Ryobi was aware of this danger because it had previously
occurred to other users. Additionally, Hood alleged Ryobi was negligent, and the saw was
defective. The trial court granted summary judgment for Ryobi, and Hood appealed.

Multiple warnings in owner’s manual and affixed to product are adequate, in spite of no specific
warning advising how an injury can occur. Court takes a Hand approach to this, if you take another
warning on top of existing warnings, how much of a chance will it prevent it from coming about? If
you were representing the plaintiff here, what other theories would you plead? The more warnings you
add the higher the chance of the warning being less effective. It is the idea that the warning was clear
and specific, but because it was buried in the fine print the average consumer would not read it.

Establishing the causal link between the failure to warn and the harm – idea being that If the warning
was given, how do you show more likely than not that the person would have went about it,
understood, it and allowed it to guide their behaviour? This is the plaintiff’s burden to carry. How do
you go about proving that causal link? The challenge is that defendant is then going to make an
argument challenging credibility.

Heeding presumption – once P demonstrates there wasn’t a warning or was an inadequate one, the
jury is told that they may presume that the P would have heeded to that presumption. The defendant
can rebut this presumption. Courts turn to explanations for strict liability. We want these claims to
allow people injured by products to receive compensation. We want to have these claims placed on the
seller the burden of allocating the loss, and of using resources they have to minimize the risks. This is
why it is appropriate to rebut a presumption.

A manufacturer does not have duty to warn about ALL potential consequences associated with
misusing a product, but only has duty to provide a warning that is reasonable under
circumstances. THIS IS THE STANDARD.

Failure to warn is manifested through: Are you going to hold a product manufacturer liable for a failure to
warn in situations where defendants can say that they didn’t know about the dangers at the time the
product was created.
- When you should have REASONABLY known of a defect but didn’t, then you’re dealing with a
negligence case and not strict liability
- It’s important to balance the amount of warnings because the more warnings, the less effective it’ll be. If
you have a clear warning but it’s buried beneath a lot of other warnings, then it’s inadequate
- How do you go about proving the causal link between inadequate signage and plaintiff acting in a
certain manner because of that
 - Once the plaintiff demonstrated one of the 3 failures to warn, they can presume that the plaintiff
would have heeded the presumption which creates a rebuttable presumption that the defendant
can provide
- Defense can raise the defense of misuse, success of that claim would result in dismissal of the entire
claim

Bottom of page 576/577 - Third restatement adds one element - an adoption of res ipsa loquitur for
product. A defect may be inferred that the harm sustained by P was caused by product defect existing at
time of sale or distribution without proof. When the incident harms P was kind that ordinarily occurs as a
result of design defect, and not solely the result of causes other than a defect. (doesn’t require plaintiff to
eliminate other causes like regular res ipsa.
- The indeterminate product defect test is a more generous version of res ipsa loquitur. But given what we
saw with Escola and the peanut butter jar case, you can see why it is necessary to have this. If the suit is
based on defect of product in which product is destroyed, you by and large eliminate the evidence that is
available. When it comes to whether the hairline crack on jar there at manufacturing or after, you just
can’t tell because it’s unavailable.
- This can be used in both manufacturing and design defect claim (probably more in design defect claims
but also manufacturing claims).

DEFECT DEFENSES

The important thing to recognize is when the argument you’re making is an affirmative defense and when
you’re really attacking the plaintiff’s prima facie case which is that the product shouldn’t be considered
defective versus asserting that while yes, the product was defective, there is a defense to liability.
- Even if your product contains inescapable harm, adequate signage/warnings may result in removal of
liability
- Sophisticated use doctrine: plaintiff already knows about danger because of their sophisticated
knowledge of the use of the product
- You’ll be given what kind of fault the state applies on a hypo and based on the facts would need to
discern whether the plaintiff’s action contributed to that

State v Karl
Manufacturers of prescription drugs are subject to same duty to warn consumers about the risks of their
products as other manufacturers

A drug manufacturer asks this court to adopt the learned intermediary doctrine as an exception to the
general duty of manufacturers to warn consumers of the dangerous propensities of their products. Court
declines to adopt the doctrine.

Nancy Gellner was prescribed the drug Propulsid by her primary care physician, Wilson, a respondent.
P was manufactured and distributed by petitioner Janssen. Gellner died suddenly on the third day that
she tried the medication. In 2001, Gellner’s estate (Respondent) filed a products liability and medical
malpractice action against Janssen and Dr. Wilson. On August 26, 2004, Janssen filed a motion for
summary judgment asserting that, under the learned intermediary doctrine, it fulfilled its duty to warn
by providing warnings regarding P to Dr. Wilson. The circuit court denied Janssen’s motion by order
entered on June 13, 2006. The issue in this case is whether the learned intermediary doctrine is an
exception to the general duty of manufacturers to warn consumers of the dangerous propensities of
their products.

A manufacturer has general duty to warn consumers about risks of their products. This is inescapably
tied to duty. When it comes to discussing the cause of action it does lend itself to negligence questions.
 Duty was fulfilled by warning someone. The answer is that they are not going to. Court here looked at
prior justifications of the doctrine from other jurisdictions and found that they were not sufficient, and
they looked at numerous exceptions to the doctrine.
There’s another version of this defence in the notes: the sophisticated user doctrine – the claim is that
the plaintiff already knows about the dangerous of the product because of their sophisticated
knowledge of the product. This comes into effect when you have the seller making a product that has to
be sold and the maker has some expertise in the installation. This means that it removes from
defendant a way of satisfying their obligations.

EXAM: If you go back to defences and material on the uniform comparative fault act, don’t forget that
this gives a definition of fault where it includes in the definition of fault acts or omissions that would
create someone to strict liability, etc. by defining fault, this is how you know whether or not you are
dealing with a defense that performs in an absolute way, completely relieving the defendant of liability,
or comparative fault where the plaintiff’s actions are weighed against the defendant.

Learned Intermediary Doctrine → as long as you convey some warnings to some intermediary (i.e.
doctors/physicians) than you can reasonably expect that they will pass on some of these
• Idea that manufacturer can reasonably assume that where drug is properly labeled and carries
instructions and warnings, the prescribing physician will use his own judgment in best interests
of patient

Previous justifications for learned intermediary doctrine:

(1) the difficulty in warning ultimate prescription drug users; (2) patients’ reliance on their physician’s
judgment in choosing prescription drugs; (3) the physician’s control over selecting appropriate drugs;
(4) the belief that physicians are in the best position to warn patients; and (5) concern that direct
warnings to users would interfere with the patient-physician relationship.

DIRECT-TO CONSUMER ADVERTISING has eliminated all of previous justifications given for
learned intermediary doctrine
• It is not unreasonable to require drug manufacturers to provide warnings directly to ultimate
users, where it is the manufacturers who benefit from drug sales and possess knowledge of
potential harms, and the ultimate users who bear the significant risks of using those drugs.
(Professor - Similar to strict liability and basic fairness principles)
• It is in the general public’s best interest to require that drug manufacturers be held to the same
duty to warn consumers of a product’s risks as other product manufacturers

Dissent → felt learned intermediary doctrine should still apply where drug at issue was not subject to
mass advertising or where physician did in fact assume role of intermediary in recommending a
particular drug’s use

3rd Restatement (note): If you have a drug with an unavoidable side-effect and for which a warning has
been provided, nonetheless can the class of individuals that used the drug and experiences the side effects
allege that the product is defectively designed because it has the side effect for a certain number of
people?
- Difference between this and DES is that the product was designed and marketed to improve pregnancy
and it turned out not to do that at all instead producing birth defects. Drugs in this note however are
different since they do convey some positive consequence to negative side effects. If a drug produces
some positives but produces negative side effects to a small group of people, if there were warnings, then
the product will not be deemed defective.
 Vasallo v Baxter Healthcare Corporation
How strict is failure to warn claim going to be?

Plaintiff claimed that silicone gel breast implants, manufactured by a company since bought by
defendant, had been negligently designed, accompanied by negligent product warnings, and that they
breached the implied warranty of merchantability, with the consequence that she was injured. Her
husband claimed loss of consortium. A jury returned verdicts on the negligence and warranty counts in
favour of the plaintiffs. On direct appeal, the court upheld the judgment entered on the negligence
verdict. Defendant argues Court should reformulate the current law on the implied warranty of
merchantability and adopt a state-of-the-art standard that conditions a manufacturer’s liability on actual
or constructive knowledge of the risks. Current law presumes that a manufacturer was fully
informed of all risks associated with the product at issue, regardless of the state of the art at the
time of the sale, and the amounts to strict liability for failure to warn of these risks.

This court is treating it as a defense as opposed to an attack on the prima facie case. The significance of
this is that if it is seen as a defense, then it might fall into the arena of it being a situation where you
apportion some fault. The court is describing it as an attack on the prima facie case. The significance is
that the product isn’t defective, there is no apportionment, and there is nothing wrong with the
warnings. These warnings were what was known or could have been known at the time the product hit
the market. Give the defendant the option of attacking this by showing the warnings were and
knowledge was state of the art at the time.

It is the burden of the plaintiff to show that the knowledge about the dangers that plaintiff says
should have been warned are dangers that were known or should have been known by the seller
at the time the product is manufactured and sold. As a consequence, defendant can assert the
state-of-the-art argument. This attacks the prima facie case: didn’t have to provide the warning.

A defendant will not be held liable under an implied warranty of merchantability for failure to
warn or provide instructions about risks that were not reasonably foreseeable at the time of sale
or could not have been discovered by way of reasonable testing prior to marketing the product. A
manufacturer will be held to the standard of knowledge of an expert in the appropriate field and will
remain subject to a continuing duty to warn (at least purchasers) of risks discovered following the sale
of the product at issue.

A fairer approach is to impose liability upon the manufacturer for all risks that are within its actual or
constructive knowledge because they could be learned upon reasonable testing.

***What is the difference between failure to warn as a strict liability matter and failure to warn by
a negligence action? One distinction that you could identify between a negligence claim and strict
liability claim is don’t forget who’s liable in strict liability. In strict liability, you can sue the manufacturer
(which is the same as negligence) but also ALL of the sellers which differs from negligence. In
negligence you need to establish the duty of care.
• In strict liability, if you are the seller of a product that contains a defect you are liable for it. The
duty exists for any seller. With negligence, you have to show that there was risk generating
behaviour on the part of the defendant and therefore generated a duty of care for which they
breached.
• If you are the seller of a product and this is all you do, and the claim is that the product lacked a
warning, in a negligence claim it may be hard to sue the retailer because they didn’t make the
product, create the warnings, placed them on the product but merely sold the product.
 • Negligence focuses on the actor and their behaviour. If their behaviour suggests that they didn’t
do anything, it is harder to sue in negligence.
• Just remember that this prima facie case requires a duty and a breach, even though Macpherson
got rid of this.

Post-sale warnings and remedial measures - is there a duty to provide a post-sale warning? With this
doctrine looking a lot like negligence, the answer depends upon balancing the same factors you would
balance in analyzing whether someone has a duty of care:

Another issue we touched on last week – when we were looking at reasonable alternative design in the
context of design defect claims with the question of could a plaintiff, in order to prove a reasonable
alternative design, show that D changed the design of the product? And did so in a way that eliminated
risk that current design created and therefore proves the reasonable alternative? Wouldn’t this produce a
disincentive on the part of sellers and manufacturers if they discover that the design creates a danger that
produces the harm? The fact that they themselves changed the product to eliminate harm is proof of the
defect itself. Subsequent remedial measure as proof of a defect.

Misuse: divide between intentional/non-intentional. If misuse is going to be unintentional and

foreseeable, you are probably going to identify the plaintiff’s misuse, not as a challenge to whether design
is defective or not, but maybe to a claim about an affirmative defence like comparative fault, or if the
jurisdiction maintains it, assumption of risk. He would give us what the doctrine is on the exam. The key
is going to be what the jurisdiction defines as fault. This is where a lot of mistakes happen on exams.

***On an exam, he usually puts a statute that defines fault. The mistake is to say that all claims are
negligence per se claims. THIS IS TOTALLY WRONG and a complete misunderstanding of what the
statute is doing. When he puts this on an exam, this is a statute you are supposed to use to address
questions like this: P sues D for strict liability in products. D challenges prima facie case and asserts
defence of misuse. It appears that it may have been a misuse where seller could have foreseen the misuse
and misuse was unintentional. If definition of fault includes claims of product liability and misuse of
products, your analysis is that D may be liable, but will not require because the plaintiff took some
percentage of the fault. Defining what fault is, is not automatically negligence per se. Negligence per
se statutes are ones that don’t have anything to do with fault liability, but what amounts to care:
what behaviour someone should engage in: speed limits, fire safety codes, etc.

DEFENSES:

CONTRIBUTORY NEGLIGENCE; COMPARATIVE RESPONSIBILITY; AND ASSUMPTION

OF RISK
Context
• Early in the development of strict products liability, courts recognized that the consumer’s “misuse”
of a product could absolve the manufacturer from liability.
• Based on the crashworthiness doctrine, courts have extended the design obligation beyond intended
uses to foreseeable ones, which includes car crashes. Based on the concept of foreseeability, the
manufacturer is obligated to design or warn against foreseeable misuse of the product, the type of
conduct at issue in Ryobi.
• Today, comparative fault or responsibility is applied in the products liability context in the
overwhelming majority of states. Product misuse no longer necessarily bars recovery, but issues now
emerge about what, exactly, should be compared.

Important Questions to Assess

• Is the misuse intentional? Or Unintentional?
• Is the misuse unforeseeable? Or Foreseeable?
o Foreseeable and unintentional… the more likely you will say Defect unless warning
o Unforeseeable and intentional… the more likely you will say No defect, no reason to
warn
• Leads you to figuring out what your jurisdictions stance is on comparative fault and how “fault” is
defined.

GM v Sanchez
Even if there are defects there are still things that are on you as consumer
Comparative responsibility

Plaintiff left his pickup truck running while he opened a gate and the truck rolled backwards, crushing
and killing him. Plaintiff’s estate sued Defendant, alleging a defective transmission design, negligence,
and failure to provide appropriate warnings. The jury found for Plaintiff on each of these claims, but also
found Plaintiff to be fifty percent responsible for the accident. The trial court awarded the estate $8.5
million in actual and punitive damages. Defendant appealed, arguing that the court should have applied
the comparative responsibility statute. The Court found that Sanchez was 50% responsible for his
accident, and GM argues that this finding should be applied to reduce its liability for damages whether
in negligence or strict liability. Court agrees that he was 50% responsible. Court concludes that a
consumer has no duty to discovery or guard against any product defect because such a duty would defeat
the purposes of strict liability.

When does doctrine of comparative fault apply in this case? Decedent was 50% responsible. Trial court
disregarded and entered judgment for plaintiff. D argues on appeal that 50% should reduce liability for
damages in negligence or strict liability. Court held that his failure to use care was that he had a
responsibility to operate truck in a safe manner: turn off the engine, take the keys out of ignition, etc.
this case represents the vast majority of jurisdictions: we Ddon’t expect consumer to discover
defects. You cannot assign fault on this basis. If you impose some duty on the user to discover the
defects, you wipe out the doctrine that was intended to fulfil the policy goals of struct liability. If
plaintiff engages in some other misuse other than that, you can apply these principles and reduce
the plaintiff’s recovery in some fashion.

The consumer has no duty to discover or guard against a product defect. But, where their
conduct amounts to something other than mere failure to discover or guard against a defect, it
must be scrutinized under duty to take reasonable care.

Consumer has no duty to discover or guard against product defects BUT must take reasonable
precautions when using a product AND a plaintiff’s conduct other than failure to discover the defect is
subject to comparative responsibility

Under a comparative responsibility system, a plaintiff’s damages in a products liability claim may be
reduced by his or her own percentage of responsibility, where the plaintiff fails to exercise ordinary
care or take reasonable precautions in using the product

Sanchez, as a driver, had a duty to operate his truck safely and to take reasonable precautions to
secure it before exiting the truck, regardless of any known or unknown product defect or dangers.
Notes following:
-Examples involving Ford motor company – three ford cases following GM v. Sanchez – cases involving
accidents in which someone runs into vehicle or driver crashes the car. Questions arising as to do
comparative fault principles, if this is a misuse situation, apply? The starting point for the seller is if in the
scenario of someone crashing into the car, and they did so deliberately, what is the best argument for Ford
in a design defect case?
• You don’t have a duty to make all situations safe, only those that are reasonably foreseeable
• Product is not defective at all as a matter of design. Could also argue that there was no reasonably
alternative design used. Proximate cause is an issue here – this is a superseding cause created by
the intentional actions of a third party.
-Ford lost on the theory that what is being sued for is not the initial impact or harm, but fact that the harm
is elevated because the vehicle should have been designed to better protect someone. The next issue is
how about the fact that you have an intentional tortfeasor in this situation. Do you assign fault to them or
not? Plaintiff would want manufacturer on the hook. Don’t want the jury to hear that the car was
intentionally rammed let alone assign fault on that basis. The argument is that the intentional tortfeasor
______. Theory of case is that your client would not be as badly hurt. Does it matter why the car got in
the accident? Does the fault of the person have any cause for the harm that the person suffered that is tied
to the defect?
-You are pursuing a crashworthiness theory – the injuries would not be as bad but for the design defect.
Doesn’t matter why you got into the accident or why it happened, but that it happened and from that point
forward we are seeking damages for the fact that the design defect made it worse.

Several states say that claims for comparative fault shouldn’t apply in crashworthiness cases. Even
in crashworthiness cases, the fault of the plaintiff should be balanced against the seller’s liability.

Scenarios in which misuse is intentional and ___ are exemplified in the chaper on defences, where
authors talk about someone using a screwdriver as a toothpick. The outcome is that there is no defect. If
we dealt with misuses that are unintentional and foreseeable, likely a defect in product but question as to
whether misuse should be treated as comparative fault principles.

Misuse is intentional but is also foreseeable – does strict liability regime allow P to allege product is
defective because they can foresee misuse and product can be designed to avoid that misuse?

WORK RELATED INJURIES/PRODUCT SERVICE TRANSACTIONS

Disclaimers and Contractual Waivers

o The Products Liability Restatement addresses the validity of disclaimers in section 18: “disclaimers
and limitations of remedies by product sellers or other distributors, waivers by product purchasers,
and other similar contractual exculpations, oral or written, do not bar or reduce otherwise valid
products liability claims against sellers or other distributors of new products for harm to persons.” →
it is assumed that the ordinary product user lacks sufficient information and bargaining power to
execute a fair contractual limitation of rights.

Statutes of Repose – these are similar to statutes of limitation in that after the passage of a specified period
of time, a claim is barred unless previously filed. Statutes of repose are different in that the time begins to
run when the product is first sold (or sometimes manufactured), rathe r than when the claim accrued, as
with statutes of limitation.

Pre-emption → an increasing number of federal statutes and regulations are reducing the scope of state
tort liability.

Work Related Injuries Product – context of the harm is where the user is not the purchaser, but
purchaser is the employer of the person who got hurt. Does this sever the liability of the manufacturer?
 Jones v Ryobi

Jennifer Jones was employed at Business Cards Tomorrow as the operator of a small printing press
known as an offset duplicator. Jones seriously injured her left hand when she caught it in the moving
parts of the press. Alleging negligence and strict product liability for defective design, Jones brought
diversity lawsuit against defendant (manufacturer) and the distributor. At trial, Jones dropped her
negligence claims, but she later moved to amend her complaint to reassert her negligence claim against
the distributor. The DC denied her motion to amend, at the close of the case, the manufacturer and
distributor moved for judgment as a matter of law. The court granted the motion. Jones appeals, this
court affirms.

The printing press involved operates by passing blank paper through several moving parts, imprinting
an image on the paper, and dispensing the paper. It involved a guard that was often removed to increase
production, and this was a common practice in the printing industry. Jones testified that she knew the
guard was removed and knew it was dangerous to have her hands near the moving parts. Says she
feared she would be fired by her manager if she did not keep going.

When third party’s modification of safe product renders it unsafe, manufacturer/seller can’t be held
liable for harm resulting from modification, even if the unsafe modification is foreseeable. Although
the manufacturer provided tools for general maintenance of the press that could also be used to remove
the guard, this doesn’t mean the manufacturer is responsible for the modification. The press was safe
before modification.

This court says that subsequent modification (substantially) means the seller won’t be liable for
harm covered by the plaintiff, whether or not the modification was reasonably foreseeable.
Dissent identifies a different defect than the question of whether the guard can be removed or
not. The way the machine was designed given why the were removing the guard means they
should have designed the machine in a way that would allow it to operate safely without the
guard.

To recover under strict liability for design defect; a plaintiff MUST prove that she was injured as result
of defect that existed when product was sold

Liriano v Hobart Corp

Builds off of Jones – manufacturer liability for failure to warn may exist in cases where the substantial
modification defence would preclude liability on a design defect theory. Intentional misuse that is
foreseeable, but because theory of liability is different means the crux of the defect is different.

Looks at the issue of whether a plaintiff, whose design claim is barred by the substantial modification
defence stated in Robinson, may nevertheless maintain a claim for failure to warn of the consequences
of such modification.

Liriano was a 17-year old recent immigrant and was employed in the meat department of a grocery
store. He lost his right hand and lower forearm when his hand got caught in a meat grinder
manufactured and sold by the defendant. The safety guard had been removed from the grinder while it
was in Super’s possession and there was no warning on the grinder about the danger of using it without
a guard. Manufacturer started issuing warnings after it became aware that a significant number of
purchasers were using it without safety guards. P sued D under theories of negligence and strict
products liability for defective product design and failure to warn. Hobart impleaded the grocery store.
 A manufacturer who places a defective product on the market that causes injury may be liable for the
ensuing injury. A product may be defective when it contains a manufacturing flaw, is defectively
designed or is not accompanied by adequate warnings for the use of the product. A manufacturer has a
duty to warn against latent dangers resulting from foreseeable uses of its product of which it knew or
should have known. Also has a duty to warn of the danger of unintended uses of a product provided
these uses are reasonably foreseeable. Where a product is purposefully manufactured to permit its use
without a safety feature, a plaintiff may recover for injuries suffered as a result of removing the safety
feature. → duty of care v. duty to warn
-alteration of product v. defect in design.

Where the injured party was fully aware of the hazard through general knowledge, observation
or common sense, or participated in the removal of the safety device whose purpose is obvious,
lack of a warning about that danger may well obviate the failure to warn as a legal cause of an
injury resulting from that danger.

Permitting a design defect claim based on third party modifications would essentially impose a duty on
manufacturers to design a product that is impossible to misuse, or whose safety features cannot be
removed
• Determining the existence of a design defect requires analyzing whether a reasonable person
would find that the risk of marketing a product with a known design defect outweighs the
product’s utility, an analysis that would be impossible if a manufacturer was required to factor
in all foreseeable third-party modifications to the product.

PRODUCT/SERVICE HYBRID TRANSACTIONS

Royer v Catholic Medical Center
Weird Case/Exception because of bankruptcy
Suing healthcare provider instead of manufacturer because manufacturer had gone bankrupt

Plaintiff underwent a total knew replacement at the defendant’s medical centre, during which a
prosthetic knee provided by defendant was surgically implanted. When he complained of pain in the
knee, his doctors discovered that the prosthetic was defective. He underwent a second operation during
which the defective prosthetic was removed and a second one implanted. Plaintiff alleged that the
medical centre was strictly liable to him because it had sold a prosthetic with a design defect that was
in an unreasonably dangerous condition. The defendant moved to dismiss, arguing that it was not a
seller of goods for purposes of strict product liability. The trial court granted the motion to dismiss the
complaint. Court held that medical services are distinguished by factors which make them significantly
different in kind from the retail marketing enterprise – the health care provider is not engaged in the
business of selling prosthetics for the purposes of strict products liability.

A defendant is subject to strict liability for injuries caused by an unreasonably dangerous defective
product only if the defendant is engaged in the business of selling the product.
o A defendant who only provides services is not similarly liable, unless he or she violates
some legal duty

P argued that this case no different than tire on defective car, but client went to the retailer → the
retailer who had defective product sold the defective product and is liable (i.e. Firestone tire that is
defective on car at retail shop)
o The primary transaction here is the service – provision of a prosthesis is merely ancillary to
such treatment
o Health care provider not seen to be seller of goods and may not be held strictly liable, where it
supplies defective prosthesis in course of providing health care services
 East River Steamship Corp v Transamerica Delaval – SCOTUS
A plaintiff may NOT recover in tort where defective product causes purely economic harm

East River Steamship Corp. (plaintiff) chartered several supertankers outfitted with turbines made by
Transamerica Delaval Inc. (Delaval) (defendant). A defective part within the turbines malfunctioned on
one ship, causing damage to other parts of the turbine. The same problem was discovered in two other
ships, requiring repairs. In another ship, Delaval’s alleged negligence in manufacturing a valve allowed
it to be installed backwards between two turbines, causing damage to the turbines and requiring repair.
The district court granted summary judgment for Delaval because the loss was purely economic, and
the only injury was to the product itself. The court of appeals affirmed. The United States Supreme
Court granted certiorari.

Rationale → Damages in a contract action are also limited to those contracted for, or to consequential
damages that are a foreseeable result of the breach (Hadley v Baxendale), whereas a manufacturer
liable in tort for purely economic harms would be subject to indefinite and vast amounts of damages
- A plaintiff may not recover in tort where a defective product causes purely economic harm.

Distinguishing between a product damaging itself vs. destroying something other than the
product (the latter is where we have tort liability)

1. Contract relationships are more limited than tort remedies (contract is limited to the contractual
relationship)
2. Contract remedies are also more limited because the contract kind of sets the parameters of what is
allowed to recover

Asking for pure economic loss recovery which is not allowed in tort law – your remedy for this in
contract and when we DO allow a plaintiff to proceed forward in tort when there is no physical harm to
anyone becomes a question for the court. Another question: who cares? If there is a cause of action in
contracts and torts what difference does it make what label we give it? The purpose of contract litigation
is to put yourself into the position you would be in had the contract been fulfilled. Contract remedies are
more limited than tort law – K remedies are limited to the parties of the contract and in tort it is limited to
whoever can establish a duty was owed to them. This is more limited in tort law.

Court holds that a manufacturer in a commercial relationship has no duty under either a negligence or
strict liability theory to prevent the product from injuring itself and the pure economic loss that comes
from that – this is better suited for the law of warranty. When a product injures only itself the reasons for
imposing a tort duty are weak and those for leaving the party to its contractual remedies are strong. The
idea is that the concept of warranty is rooted in both contract and tort law. the rule of law that ought to
operate in admiralty is that in the absence of physical loss to person or property, this is governed by
contract and warranty, therefore the damages/remedies available are contract remedies and nothing else.

NUISANCE

Nuisance protects interests in use and enjoyment of land → as a general term, nuisance, describes the
consequences of conduct, the inconvenience to others, rather than type of conduct involved. It is a field of
tort liability rather than a single type of tortious conduct.

Involves both strict liability and negligence.

Protects possession → the possessor has the right
REMEDY = Injunction

Private Nuisance
Section 822 of Second Restatements → states general rule that one is subject to liability for conduct that
is a legal cause of an invasion of another’s interest in private use and enjoyment of land if the invasion is
either:
(a) Intentional and unreasonable, or
▪ When it comes too unreasonable, they are somewhat familiar to us (gravity of the harm and
balancing against the utility of the conduct)
• comparing competing uses with again idea that tort law essential function is NOT to provide
damages for invasion of interest based off of a wrong IT IS RATHER TO STOP an invasion
of that interest
• Situations where there is knowledge that the conduct is invading, or is substantially certain to
invade, another’s interest in the use and enjoyment of land.
• SATISFIES UNREASONABLENESS when a) the gravity of the harm outweighs the utility
of the actor’s conduct; b) the harm caused by the conduct is serious and the financial burden
of compensating for this and similar harm to others would not make the continuation of the
conduct not feasible.
(b) Abnormally dangerous conditions or activities – unintentional nuisances generally governed by the
rules related to the underlying negligence, recklessness, or abnormally dangerous activity on which
the nuisance is based, with the added requirement that the injury be related to an invasion of interests
in the use and enjoyment of land.

Section 827 – Second Restatement – gravity of harm/factors involved

Section 828 – utility of the conduct/factors involved.

Boomer v Atlantic Cement

Private Nuisance
Example of extending standard of nuisance beyond its basics

- Atlantic Cement Co. (defendant) is a cement plant in the Hudson River valley. Its surrounding
neighbors (Boomer → plaintiffs) brought suit alleging that the pollution Atlantic produces as a by-
product of its operation is a nuisance and causes damage to the plaintiffs’ properties. Special term
determined that this situation is a nuisance. Temporary damages were awarded, but an injunction was
denied.
- The plaintiffs appealed to the Appellate Division, which upheld the special term’s ruling. The
plaintiffs petitioned for certiorari to the Court of Appeals of New York.
- Lower court upheld nuisance doctrine.

Trial court applying basic nuisance doctrine but NYCA altering common law because would lead to
bad outcome
• Common law says that if you engage in intentional interference with someone else’s property
– the defendant should have their conduct enjoined – AND even if consequence to defendant is
GREAT and benefit to Plaintiff is SMALL – the injunction should still be granted

Reasoning:
- Yes. Boomer is entitled to an injunction that will be lifted once permanent damages are paid by
Atlantic.
 - A permanent injunction will not be awarded as defendant’s operations provide significantly more
economic benefit to defendant than the damage caused to plaintiffs.
- Generally, an injunction is appropriate in cases where a nuisance would otherwise persist after a trial.
- However, an injunction in this case would require Atlantic to completely close its operation unless a
cleaner method of producing cement could be found.
- This would be unfair to Atlantic, as the problem of pollution is one that is experienced by all cement
factories, not only Atlantic. Since the economic benefit of keeping the factory open is greater than
the harm suffered by Boomer, the most equitable solution is to award an injunction that will be
lifted once Atlantic pays permanent damages to Boomer.

The permanent impairment of private property for private purposes is not authorized in the
absence of clearly demonstrated public benefit and use.

Trial court applying basic nuisance doctrine but NYCA altering common law because would lead to
bad outcome
• Common law says that if you engage in intentional interference with someone else’s property
– the defendant should have their conduct enjoined – AND even if consequence to defendant is
GREAT and benefit to Plaintiff is SMALL – the injunction should still be granted.

NYCA Approach
The court then analyzed two possible avenues: (1) grant an injunction but postpone its effectiveness to
allow for technological advances that would eliminate the nuisance or (2) grant an injunction
conditioned on payment of permanent damages to the plaintiffs. The court determined that the best
solution was to grant an injunction on the condition of permanent damages so that the plaintiffs would
be afforded relief as well as preventing repetitive lawsuits and avoid the appearance of regulating on
environmental policy

Dissent → believed that by overruling long established rule of granting injunctions, the court is
allowing ongoing wrongs to be continued via payment of a fee

Think about nuisances as providing a privilege or entitlement to somebody, if the plaintiff has an
entitlement then the nuisance creator is enjoined with the choice being: you have to purchase the
entitlement (if you are being enjoined from operating your property, buy out the plaintiff → buy their
property and in a sense proving the value of your property). On the other hand, if the determination is that
the defendants conduct (as you balance factors harm v utility to determine unreasonableness) then
outcome being no, if you balance the factor, then the conduct is not unreasonable and it’s not the plaintiff
with the entitlement, but the defendant i.e. no nuisance and creates the same result (plaintiff, if you don’t
like what defendant is doing, buy them out)

What do you do with fact that plaintiff is MOVING TO THE NUISANCE?

- You can have a defendant holding an entitlement and a plaintiff complaining about the nuisance, the
court will enjoin the nuisance but require the plaintiff to pay the cost of the defendant’s losses
• i.e. P moving into cattle fed lot → Plaintiff has to pay permanent damages to defendants for cost
of shutting down/moving business → essentially reversed rule from Boomer

Public Nuisance
- Here, the public interest is being interfered with and as a consequence because tis the public, it moves us
outside the usual framework which is a plaintiff being a private party with a private interest and only time
a public entity is involved was a defendant. But this material, the plaintiff can be a state entity vindicating
a state right
- Unlike private nuisance, public nuisance doesn’t protect interests in use and enjoyment of private land
 State of Rhode Island v Lead Industries Association
Not a public nuisance case – but helps tell us what public nuisance is/isn’t

• Lead, a toxic chemical, was widely used in household paints until the 1970s. It is undisputed that
lead poisoning continues to be a public nuisance in the U.S., and particularly in Rhode Island,
where a disproportionately large number of children have elevated levels of lead in their blood.
• The Rhode Island Attorney General filed suit on behalf of the State of Rhode Island (plaintiff)
against several lead paint manufacturers (Lead Industries → defendants), alleging that they either
knew or should have known that the lead contained in their paint was a health hazard, and that as a
result of their conduct the state incurred substantial damages.
• The trial court denied Lead Industries’ motion to dismiss. The jury found that the presence of
lead paint is a public nuisance caused by Lead Industries’ conduct and ordered the paint
manufacturers to abate the public nuisance (That’s big).
o Lead Industries appealed.
o The state sought compensatory and punitive damages, in addition to an order requiring
defendants to (1) abate lead pigment in all Rhode Island buildings accessible to children
and (2) fund educational and lead poisoning programs.

This court recognizes three principle elements that are essential to establish public nuisance:
1. An unreasonable inference
2. With a right common to the general public
3. By a person or people with control over the instrumentality alleged to have created the
nuisance when the damage occurred.
*Court requires that the defendant be in control of the instrumentality that causes the nuisance

A product-based public nuisance cause of action bears close resemblance to products liability action,
yet it isn’t limited by the strict requirements that surround products liability action
• It is essential that these two causes of action remain just that – two separate and distinct causes
of action
• Public nuisance focuses on abatement of annoying or bothersome activities – products
liability law, on other hands, has its own defined structure, which is designed specifically
to hold manufacturers liable for harmful products that the manufacturers have caused to
enter the stream of commerce

Draws line between something that everyone in public has opportunity to enjoy uniformly vs.
something that is within the homes of individuals
• i.e. spilling oil into lake that city gets its water from would be as far as Rhode Island is
concerned public – BUT why isn’t it good enough to say that there is a public cost (a cost born
by the public and that then is the very interference)?
o Rationale → Idea of never-ending possibility that anytime someone who engages in
conduct that affects public in some way – you all of a sudden have a nuisance against
Them – BUT now you also have private suit – which would lend itself to leading to
nuisance essentially swallowing all of Tort Law

They created an interference with the use and enjoyment because they were dealing with paint in many
rooms/houses across the state which exposes the danger quite extensively. People were injured by
eating the paint or inhaling particles and children were affected which was determined in the amounts
of lead in their blood.
 - This isn’t interfering with the general public use and enjoyment of rights such as the air, etc…the
injury is divisible in a private way through the exposure in each person’s home
- There are circumstances where an individual can claim their own action of public nuisance an assert a
right to some common resource but they themselves have an individual suit separate from the claim
that the public authority may grant

Exam:
12 M/C
2 or 3 Short Answers and about 3-4 Essay Questions
- Reapportionment statute on the exam
- Will be dealing with two or three parties and one or two torts, not going be longer fact pattern but
shorter essay questions
- Gonna try to hit every major point

INTENTIONAL TORTS, Assault, Battery, False Imprisonment

Intent to basically engage in the conduct – and if conduct results in invasion of the interest than intent
element of tort law is satisfied
Intent is what characterizes these torts

Trespass to Chattel
1) Act; 2) Intent to: use chattel in a way that interferes with possession by lawful owner, dispossession up
to permanent and total deprivation=conversion; 3) As with Trespass to land, interest protected is
possession and can occur “innocently”
- Similar tort regarding the intent element, you have to intent to use chattel in a way that interferes with
possession by the lawful owner. Unlike trespass to land, where you can have a claim based purely upon
entry, trespass to chattel, if you’re talking about a situation where someone temporarily dispossess you of
your property and could return the chattel, then ordinarily you will not have a claim of trespass to chattel
(ex: take wrong coat in a room, they notify you its their coat and you return it). The interference of
trespass to land is going on someone’s land without permission and once it happens, it happens,
meanwhile trespass to chattel can be remedied. You have to determine if dispossession is serious enough
to have significant impact on you by loss of chattel or because the chattel itself has been damaged/value
compromised.
- If you can return the chattel in some way, that may mitigate the damages. But total
dispossession or such substantial interference that value is lost then requires replacement value of
the chattel
- Intent is tied to the idea that you’re deliberately doing something and that you’re acting and that
your action is intended by specific design of your mind. That’s the way you can say the intent
here is the same is the intent in all the intentional torts. For example, burning a book thinking its
yours but turns out it wasn’t. You still intended to burn the book despite it accidentally not being
yours.

Intent we use here reflect a kind of strict liability, when we discuss trespass to land, we’re talking about
strict liability. This is property in possession by someone else and using it without permission. This
doctrine applies to people acting in good faith, reasonably believing that they are not on someone else’s
property but can be held liable

In studying personal injuries that defendant allegedly caused “intentionally” we focus on what defendant
sought to achieve, OR knew would occur, rather than on whether defendant intended the act that
ultimately caused the harm
 ▪ Definition of “intent” in Restatement Torts: Liability for Physical and Emotional Harm
section 1 requires (a) the person acts with purpose of producing the consequence OR (b) the
person acts knowing that the consequence is substantially certain to result

BATTERY ELEMENTS
• Act
• With Intent
• To cause contact
• That is harmful or offensive
• The act causes the contact

Make sure all of these elements are proven through preponderance of the evidence → need to go through
each and every element
• People conflate act with intent – but keep separate

You have to act with the INTENT to make content that a reasonable person would perceive to be harmful
(just how assault doesn’t protect overly sensitive people, battery doesn’t allow recovery for unexpected
and unanticipated outcomes), assault because of its elements creates. In assault, they will have to be
aware of the defendant’s actions, is this true of battery, can you be battered without knowing or being
aware of the contact? Yes, you can.
- The eggshell plaintiff rule does not convert something that isn’t a battery into a battery, however, if you
commit a valid battery and therefore caused substantial injury because of a pre-existing condition, you are
responsible for that

What is an Act?
• Conscious/voluntary
o Omissions are an act because one’s body is reacting to one’s conscious will (i.e. see
person at crosswalk and don’t step down on brakes)
• Insanity – doesn’t call into question the act because brain is still directing foot not to step on the
brake – but question is whether or not the intent could be there
o Someone may have very distorted belief of the world and may actually believe that
contact they’re making is justified but as long as they make contact with plaintiff IT
DOESN’T matter

Note: If you satisfy the intent element for battery or assault, this can be sufficient to form the intent of
another intentional tort. The defendant might not have actually desires this, but it nonetheless transpires.
The most obvious example is assault where bey intend harmful contact for one person, but instead this
contact actually happens to another and happens through to desire on part of the D, this is transferred
intent doctrine.
- Intent also transfers to other individuals

In defining intent, no longer speak of risk – the characteristics of accidental harm – but rather purpose to
bring about consequences, or knowledge that such consequences are substantially certain to occur
- Are we talking about intent to engage in the content or to cause the harm or effect? It requires the former
but analyzes the latter on an objective standard (does the ordinary purpose perceive the act to be harmful).
However, some areas require both the conduct AND harm or offended which is called specific intent.
- Those situations in which you have a reason to wonder whether or not the defendant actually has
the capacity to understand what objective would be described as harmful or offensive
(minors/people with mental disabilities) → Doesn’t mean that they cant commit the crime, but must
show that a child of that age and mental understanding COULD understand that they could
understand the consequences of their actions
→ Mental disabilities are not regarded in negligence law, but what about intentional torts? Some
jurisdictions say that because the purpose of intentional torts is to stop culpable harms done by intentional
conduct, you cannot really establish this element for someone that cannot appreciate their actions
- Some believe that because there’s an innocent injured person, nonetheless despite the defendant’s
mental state, should allow the defendant to recover

Intent:
When focusing on intent - are we referring to an intent to engage in the contact? Are we intending an act
to engage in the harm or the offense? The answer to this is generally that tort law only requires the former
and evaluates the latter by an objective standard. Would an average person perceive and understand the
conduct to be harmful or offensive?
Some circumstances the law requires P show D intended not only the contact but also that it harmed or
offended. This is specific intent. Circumstances include situations where someone wants to sue their
employer (outside workers comp) for intentional torts. For some states, the requirement is that P show
that D had a specific intent to cause harm before they are put outside the system and can sue in regular
tort.
- Another issue where intent becomes an issue are those where you have a reason to wonder whether
defendant or not actually has capacity to understand what objectively we would describe as harmful or
offensive. Who might have a problem with understanding what society would call offensive or harmful?
- Minors or people with disabilities. Garratt v. Dailey - defendant was five years old. Example:
you drive up to the sidewalk and people jump out of the way. Purpose was to get away from slow
driver. Have to be substantially certain.
- What is negligence answer to someone with mental impairment? Do we tailor the standard of care to
this? No, we don’t. Should this be the same rule for intentional torts?
- Example: person who is schizophrenic shoots a family for completely irrational reason. Should
this person be punished?
- Dual Intent - the plaintiff has an added burden. They must show not only that defendant acted with
purpose and substantial certainty, but defendant could and has capacity to understand that their behaviour
is in fact wrongful. Violating communal norms of behaviour.
- This is not a universally adopted principle. Some states don’t care. If they act with intent in this
general sense of having purpose (i.e., pulling the trigger and hitting someone) then we treat
intentional torts the same as negligence. Doesn’t matter if you can appreciate conduct, you will
still be liable for your harm caused because there was an innocent, injured person.
- It is generally an issue of law.

Garratt v Dailey → Intent

On July 16, 1951, Brian Dailey (defendant), a five-year-old boy, was visiting at the home of Ruth
Garratt (plaintiff). Garratt started to sit down in a lawn chair when Dailey moved it. Garratt fell,
sustaining serious injuries, including a broken hip. Garratt sued Dailey for battery. At trial, Garratt’s
sister testified that Dailey deliberated pulled the chair out from under Garratt. The trial court did not
accept this version of events, however, and instead accepted the testimony of Dailey. Dailey claimed
that he moved the chair to sit down in it, and despite his efforts, he was unable to replace the chair in
time to stop Garratt’s fall. Parents sued the insurance company.
- Why aren’t parents responsible for torts of children?

Intent BEING purpose or desire for an outcome → court says you can satisfy the intent element if you
can show substantial certainty that this will be the outcome
• Substantial certainty – allows factfinder to infer
 Without substantial certainty there would be very limited circumstances where could have intentional
tort case
• i.e. if he didn’t want Ruth to hit ground as he took chair away, the only way one could have
intentional tort claim would be where D is willing to admit that he intentionally meant to hurt
the plaintiff

Substantial certainty is there to allow plaintiffs to be successful even in cases where Defendant says
“I did not intend/desire the outcome”
▪ Here, factfinder can say yes but you were substantially certain giving your knowledge/the fact
would occur and thus still liable
▪ You need to consider that the defendant is the one that contains the evidence of whether they
intended or purposefully made contact with the plaintiff. It acts like transferred intent where you
can make a finding of intent despite actually showing direct intent for that specific cause.
▪ Broader definition of intent in tort law

Intent can be satisfied if you’re acting with purpose OR substantial certainty. If they are
substantially certain that the contact or apprehension was substantially certain of the invasion or
interest
- Application in this case: Dailey was substantially certain that their invasion would
result in Garrett falling thereby rising to the level of intent.
- The parent holds no vicarious liability due to policy considerations

Picard v Barry Pontiac-Buick → Contact

Battery

In response to a dispute over repairs, Picard (plaintiff) brought a camera to the repair shop of her
automobile dealer, Barry Pontiac‑Buick, Inc. (defendant), and took a picture of one of the dealer’s
employees (defendant). The employee admitted pointing his finger at Picard, approaching Picard,
asking who gave her permission to take his picture, and placing his index finger on the camera that was
in Picard’s hand. Picard brought claims for assault and battery. She was awarded substantial
compensatory damages and punitive damages. Pontiac‑Buick and its employee appeal, arguing that
Picard failed to prove assault or battery because Picard was not placed in reasonable fear of imminent
bodily harm, and because there was no evidence that the employee intended to touch Picard.

If you act with intent to make contact and we define that as offensive to reasonable person than
elements of battery have been satisfied

Contact: with an object, attached or identified with plaintiff’s body is sufficient to constitute battery.
May include clothing, cane, or anything connected with the body that is customarily regarded as part of
the other's person. P clutched the camera in her hand and therefore was intimately connected with P's
body
• Things close enough for this to satisfy contact – i.e. touching the camera is enough as long as
he intended to make contact with camera that that is sufficient
• Something set in motion would be contact (i.e. throwing a ball at you)
Note: Conta Mr. and Mrs. Briney (defendants) own a farmhouse, which is not used as their home and
which remains vacant. In response to many years of break‑ins and trespassers, Mr. Briney set up a spring
gun trap in one of the house’s bedrooms. The trap consisted of a shotgun pointed at the bedroom door and
rigged to fire when the door was opened. Though originally set up to hit an intruder in the stomach, at
Mrs. Briney’s suggestion the shotgun was lowered to hit an intruder’s legs. The spring gun could not be
seen from outside the bedroom, and there was no warning or indication of its presence. Katko (plaintiff)
knew the house had been unoccupied for years and considered it abandoned. Katko and a friend went to
the house and collected old bottles and jars as antiques. On a subsequent visit to the house, Katko opened
the bedroom door, setting off the shotgun trap. Katko was struck in the right leg and seriously injured.
The jury awarded Katko compensatory and punitive damages. The trial court denied the Brineys’ motions
for judgment notwithstanding the verdict and for new trial.ct doesn’t have to be directly caused, you can
set the act in motion that caused contact and thereby harm or offense.

Two situations: 1) Person in bar smoking next to someone → Not battery since there’s no act because the
person did not voice any issue; and
2) Person in bar smoking next to someone but that person asks them to stop but they reply, “good” →
Here, there is an act (Smoking in the face of their discontent), and the intent is clearly with purpose,
smoke can be seen and can make contact, can cause second hand smoke that can be harmful, and the act
causes of intentionally smoking in their face directly caused the contact.

Class Discussion → Could P have sued for battery through testing that number of their cars would
explode and burn people?
• Reason why these cases fail is because when we talk about intent to make contact - -what we are
talking about is intent to make contact with some specific person – Ford knew with statistical
probability that number of people would be contacted BUT not that any one particular individual
would be contacted
• The intent is to make contact with some specific individual OR individuals
o What you would need to know is ‘which specific individuals would get burned’
o i.e. if have Ford Pinto being sold to specific individuals know that those specific Ford
Pinto’s were going to injure/burn those specific individuals THAN we likely have a
battery

Assault
• Act
• With intent
• To create apprehension
• Of imminent harmful or offensive contact
• Plaintiff reasonably apprehends such contact

What does imminent mean? Key for us, is what set of circumstances leads court to say this should be a
factfinder decision
o i.e. next-door neighbor calls you from 2 blocks away stating that they will kill you? To what point
could factfinder reach conclusion that this is imminent apprehension
o When does imminent occur? When do we have no imminent delay?
o Imminent → no significance delay
• Let jury decide this because someone in shoes of plaintiff could believe that bullet could come
through window if Defendant on porch with a gun

The key to figuring out these types of questions are to figure out what element you are worrying
about
• Whether smoke can be contact? Yes, it is contact because it is visible particular matter
o NOTE: court said not talking about smoker’s bed at a bar because that is not the same as
situation where person inhaled cigar and blew smoke purposely in face of anti-smoking
advocate
 • NOTE: subjective awareness does NOT always work –
o Person next to you says please don’t bring back of peanuts to class because I have very
sensitive peanut allergy – and I bring them in and open up in front of you? If there is no
contact with Plaintiff and Defendant’s peanuts, then do we really have contact sufficient
for no battery?
▪ NOTE: could argue like smoke that despite being invisible and oraless there is
still contact with something that P’s allergies are reacting to

Wishnatsky v Huey
Weak battery claim

• Assistant Attorney General Huey (defendant) was having a private conversation with another
attorney, Crary, in Crary’s office. Wishnatsky (plaintiff), Crary’s paralegal, attempted to enter the
office without knocking. Huey pushed the door closed, pushing Wishnatsky out into the hallway.
Wishnatsky brought a battery claim against Huey. The trial court dismissed the claim on summary
judgment. Wishnatsky appealed.

You tell classmates you don’t like being touched, by anyone at any time ever—if someone bumps into
you in hall is that battery? ANSWER = NO –because there are some contacts that we naturally
accept

FALSE IMPRISONMENT
Like assault and battery, false imprisonment was initially formulated to address the problem of violence
and public disorder in medieval England

Elements
• Act → Same meaning
• With Intent → Same meaning
• To confine Plaintiff
o This is the key inquiry for this tort
• To an area the bounds of which are set by Defendant
• Plaintiff is aware of confinement or harmed by the confinement
• Book mentions problem with regard to suspected shoplifting – problem is that common law
basically said either shopkeeper doesn’t have any reason to stop someone UNDER SUSPICION
or they do have but it’s limited privilege – you better be right that someone took your chattel –
because if you’re wrong, they can sue you for false imprisonment/battery
• As the borders get larger and larger, the confinement argument gets weaker

Lopez v Winchell’s Donut House

Lopez (plaintiff) worked at Winchell’s Donut House (Winchell) (defendant). Another employee,
Cesario, asked Lopez to come in to the store. Lopez accompanied Cesario into the store’s baking room,
where she was asked to sit down. Cesario then closed the door and locked it with a little latch. Cesario
and another employee, Bell, told Lopez that they had proof that she had failed to ring up some sales
and had instead kept the money from those sales, constituting retail theft. Cesario and Bell did not tell
Lopez she would lose her job if she did not answer their questions, threaten to fire her, or make any
kind of threats. Lopez did not fear for her safety, did not refuse to answer any questions, was not
prevented from leaving the room, and later got up and left the room when she began to shake and feel
ill. Lopez brought an action for false imprisonment.
 Problem: Whether they acted with intent to confine?
• Didn’t tell her she couldn’t leave
• She didn’t feel like she couldn’t leave
• Thus, complete absence of anything that would amount to confinement

Remaining in a place to clear one’s name does not constitute false imprisonment. For a false
imprisonment to occur, the plaintiff must have yielded to force, a threat of force (implied or express),
economic duress or the assertion of authority.
→ Make sure you get the right tort because each tort protects a different interest

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Extremely difficult to prove – usually last resort

Elements
• Conduct
• That is outrageous
• Undertaken for purpose of causing or reckless (high degree of awareness) as to causing severe
emotional distress
• Severe emotional distress results
o What constitutes severe emotional distress?

- This claim’s intent element is different here, this tort is satisfied not only by purpose of producing
severe emotional distress, not just substantial certainty that it’ll come about, but recklessness that could
cause the harm to occur
- Can you have transferred intent for this tort claim?
- For most cases, outrageousness is what the court desire and usually doesn’t require some physical
manifestation. Practically, plaintiff may want def to prove these damages.

Scenarios involving groups that have been discriminated against (i.e. gender or race), situations in which
defendant aware of plaintiff’s particular vulnerability
• Patterns of behavior where one instance of conduct becomes outrageous
When might you plead this? In one of these scenarios

KEY LEGAL ISSUE HERE → Are there enough facts to get in front of factfinder and when do we
crossover the threshold where factfinder would find that we are beyond?
• Think about patterns of repeated behavior
o Being threatened with termination at work/reprimanded at work – but question is at what
point in that context say that this behavior is simply beyond what we otherwise would
normally express to produce emotional distress – that would then produce outrageous

Womack v Eldridge
Court case with photo of individual

Eldridge (defendant) was employed by an attorney for Seifert, a man charged with sexually molesting
two boys. Eldridge, pretending to be a reporter writing an unrelated article, convinced Womack
(plaintiff) to allow Eldridge to take his picture. Eldridge gave Womack’s photo to Seifert’s attorney,
who showed it to the two boys involved in Seifert’s case. The two boys told Seifert’s attorney that the
man in the picture, who did not resemble Seifert, was not the man who had molested them. In response
to questions about the photo from the state’s attorney, Eldridge testified at a preliminary hearing,
giving Womack’s name and address. At the request of the state’s attorney, Womack was brought into
 court to testify about having provided his picture. Womack testified that had not molested the children
and that he did not know anything about the charges against Seifert. Subsequently, police officers
questioned Womack several times, he was summoned to appear as a witness at the grand jury and was
summoned to appear several times at Siefert’s various trial dates. Womack sued Eldridge, claiming that
he suffered emotional distress as a result of Eldridge’s willful, malicious, and deceitful conduct. The
jury returned a verdict in favor of Womack. The trial court set aside the verdict, finding that Womack
could not recover for emotional distress absent physical injury. Womack appealed.

This tort can be satisfied not simply by showing purpose or even substantial certainty BUT also
knowledge of the high degree of risk of emotional distress and so therefore that is how you can
satisfy that element
• Why make it easier for the Plaintiff in this case (why recklessness is enough)? Because we
are dealing with outrageous conduct, we want Plaintiff to be able to hold someone liable for
actions beyond all social grounds

Liability for emotional distress may exist absent any physical injury or bodily harm

TRESPASS TO LAND
1) Act
2) Intent
o Enter the land possessed by another
o Causes something to enter the land of another
o Fail to remove something from the land of another
• The intent you need for trespass to land is always going to be understood as single intent
meaning the intent to make the contact – and yet we know in battery claims, sometimes
tort law feels as though that’s simply too broad a concept
3) Without permission
4) Entry can be on the land, over the land, under the land
5) Can be described as a strict liability tort – a defendant can commit the tort without being
aware of invasion of another’s interest

Difference between Trespass and Nuisance

• With nuisance, we are looking at competing interests.
• In trespass (like assault, battery other intentional torts), no need to prove that you diminished the
value of the property. Have claim without proof of actual loss!

We have this protection because when someone transgressed onto your property that is most likely
scenario where you would use ‘self-help’ and for this reason the intent element is construed in such a
broad fashion in that we don’t care whether you knew or not that it was someone else’s property
• NOTE: still intentional tort meaning if pushed onto someone’s property NOT intentional tort

Martin v Reynolds Metals

The Martins (plaintiffs) sued for damages to their land, caused by invisible fluoride compounds that
settled on the land from a nearby aluminum reduction plant run by Reynolds Metal Co. (defendant).
The trial court awarded damages for a four-and-a-half year period, permissible under a trespass claim’s
six-year statute of limitations, in contrast to the two years of damages that would have been permitted
under a nuisance claim’s two-year statute of limitations. Reynolds appealed on the issue of trespass.

Trespass defined as any intrusion which invades the possessor’s protected interest in exclusive
possession, whether that intrusion is by visible or invisible pieces of matter or by energy which can be
 measured only by the mathematical language of physicist (can be underground, above ground on
ground etc…)

Martin → the old distinction that says only concerned about physical items that we can see or touch
NO longer concerns us → question is → whether the object or thing is intentionally caused to
break into the plaintiff’s possessed property, if that is the case you have trespassed the land

Issue of permission → as each one of these elements can be the issue that arises for particular tort
→ in what way can permission become question of fact in trespass claim?
• Questions of whether permission was granted BUT not necessarily
o Situations where P asserts D trespassed but D is saying your behavior/conduct
reflected permission (raises the question of limited permission) – so you may be
permitted on the premises but only a certain part of premises and beyond that further
entry may be considered a trespass to land
o i.e. permission to enter a store BUT permission limited to where others can be YOU
weren’t permitted to enter the stock room
• Links to duty → enter the store but are injured on the premises – Does it matter what part of
premises you were on? YES – if injured in part of store where you were allowed, means you
were invitee – BUT if injured in stock room where not supposed to be than you are trespasser

NOTE: not everyone who commits trespass is trespasser

• Trespasser means don’t need to intend to be on property just have to be there
• BUT for tort of trespass need to intend to be there

For purposes of duty owed on entrance INTENT doesn’t matter for purpose of establishing what category
you are in BUT for purpose of establishing liability of the entrant intention does matter

Trespass to Land does protect the property BUT can also protect the property underneath the service (i.e.
toxic materials seeping into your ground water and they are substantially certain that that would happen –
ANSWER according to Martin is now yes)

CONVERSION/TRESPASS TO CHATTEL

Both are concerned with protection of ownership rights in personal property

• By contrast, the trespass and nuisance torts we considered in the last section protect rights relating
to real property (land or fixtures permanently attached to it)

ELEMENTS
• Act
• Intent to
o Just the intent to interfere is good enough (i.e. I take this book and burn it thinking it’s
mine, but it’s not – trespass to chattel)
o Use chattel in a way that interferes with possession by lawful owner
o Dispossession up to permanent and total deprivation (act of deprivation is
possessing/wearing it) = conversion
• As with trespass to land, interest protected is possession and can occur ‘innocently’

Can person who’s accused return the chattel? If they can in some way or form return the chattel to the
possession of possessor than probably talking about trespass to chattel – thus suing for diminution of
value, loss of use etc… BUT if cannot replace it because value completely eliminated by the possession
than talking about conversion

Thyroff v Nationwide Mutual Insurance

Decision to move away from requirement that chattel be physical to allow chattel to be non-physical

Thyroff (plaintiff) worked for Nationwide Mutual Insurance Co. (Nationwide) (defendant). Nationwide
provided computer hardware and software (the AOA system) to Thyroff to facilitate data collection and
entry, which Thyroff also used for personal email and data storage. Nationwide terminated Thyroff’s
employment and repossessed the AOA system. As a result, Thyroff was unable to access his business
and personal information from the computers. Thyroff brought a claim against Nationwide for
conversion of his business and personal information. The trial court held that the complaint did not
state a cause of action for conversion and granted a motion to dismiss the claim. The Second Circuit
certified the question to this court of whether the common law tort of conversion applies to intangible
property such as electronic computer data.

P is saying the info stored on computer harddrives is the item possessed – not any docs that possessed
the info – BUT rather the actual electronic data
• CA NY is saying yes, at the end of the day it seems that this should be considered chattel as it
is something that can be possessed
• Concerned is what is the interest being protected? The interest is actually in that
information – that is the chattel

DEFENSES AND PRIVILEGES

NOTE: some of the defenses we already talked about MAY apply here – immunities may apply, statutes
of limitations – BUT if jurisdiction decides to define fault as including intentional behavior than you can
say comparative fault becomes a defense

If talking about situation where p suing D in negligence DO NOT raise the defense of consent – raise the
defense of assumption of risk (express or implied)

Important to describe defenses in the right way → they are privileges NOT rights
PRIVILEGE → Nobody has a right that ‘I NOT’ do something
• I have the right to an attorney vs. I have the privilege of an attorney (means nobody
can stop me from getting one)

In case of these defenses we call them privilege to do something that would otherwise be a tort
• NOTE: that is different than saying you didn’t commit the tort → what is happening here is
AFTER ALL elements of tort are satisfied THAN YOU BRING THE DEFENSES → only after
ALL the elements are proved that you then wrorry about the privilege

CONSENT
• Plaintiff’s consent to an intentional invasion of legally protected interest ordinarily bars recovery
• Volenti non fit injuria – to one who is willing, no wrong is done

Example of Consent
4 guys playing around at beach – one guy says “You guys can’t throw me in the water” they pick him up
through him in and he hits rock and hurts spine – sues them
• The guys argue that ‘you consented, our contact was privileged’
o Could argue “pattern of behavior that shows you agreed to this contact and therefore
becomes privileged”
o The law says you consent to the contact, and if the contact turns out to be harmful it is
still privileged, because you consented to the contact – thus, whatever flows from the
contact is privileged

Hart v Geysel → court said that even if it is illegal, if it was consented to something than no recovery →
i.e. if fight was illegal let criminal justice punish those involved

NOTE: in situations of imbalance in power (i.e. employer vs employee) – employer takes risk when
having sexual intercourse with employees, BUT you cannot introduce any evidence that suggests consent
• NOTE: this doesn’t mean liable BECAUSE still need to go through every element

SELF-DEFENSE
Courvoisier v Raymond

Courvoisier (defendant) owned a jewelry store located on the first floor of a building. Courvoisier lived
on the floor above the jewelry store. One evening, Courvoisier was sleeping in his room when he heard
several men attempt to break into the jewelry store. The men came to the second floor of the building,
and Courvoisier heard them knocking loudly on the door of the room where his sister was sleeping.
Courvoisier took out his revolver and fired one shot attempting to scare the men. The men moved out
to the street in front of the jewelry store but did not run away. Instead, they began cursing and hurling
sticks and rocks at Courvoisier. Meanwhile, Raymond (plaintiff), a police officer, and two other
officers heard the commotion and came toward the crowd of men with the goal of arresting them.
Raymond walked toward Courvoisier and called out to him. Courvoisier said that he saw Raymond
reaching for his hip pocket and coming toward him. Courvoisier did not know that Raymond was a
police officer, but believed he intended to attack him. Courvoisier fired his gun at Raymond and
injured him. Raymond brought suit against Courvoisier for his injuries on the ground that Courvoisier
recklessly fired the shot in question. At trial, the jury was instructed that if it found that Raymond was
not attacking Courvoisier at the time he was shot, it should enter judgment for Raymond. The jury
found for Raymond, and Courvoisier appealed.

Watch word for self-defense = reasonable appearance for the need AND therefore reasonable
appearance of the level of force ( this can get tricky – when is it a jury question and when is it not
a jury question?)
• P has rock in its hand and D pulls out gun and shoots plaintiff – P sues for battery, and D
alleges self-defense but P said I have a rock and you have a gun
• Would this be situation where you’d let jury decide?
o These cases become very very fact specific (depends how close to one another)

DEFENSE OF PROPERTY
Katko v Briney

Mr. and Mrs. Briney (defendants) own a farmhouse, which is not used as their home and which
remains vacant. In response to many years of break‑ins and trespassers, Mr. Briney set up a spring gun
trap in one of the house’s bedrooms. The trap consisted of a shotgun pointed at the bedroom door and
 rigged to fire when the door was opened. Though originally set up to hit an intruder in the stomach, at
Mrs. Briney’s suggestion the shotgun was lowered to hit an intruder’s legs. The spring gun could not
be seen from outside the bedroom, and there was no warning or indication of its presence. Katko
(plaintiff) knew the house had been unoccupied for years and considered it abandoned. Katko and a
friend went to the house and collected old bottles and jars as antiques. On a subsequent visit to the
house, Katko opened the bedroom door, setting off the shotgun trap. Katko was struck in the right leg
and seriously injured. The jury awarded Katko compensatory and punitive damages. The trial court
denied the Brineys’ motions for judgment notwithstanding the verdict and for new trial.

The question presented in Katko centers around the determination of the general privilege of an owner
to defend property and what level of force is reasonable to do so. The ruling in Katko is consistent with
all other areas of tort law with regard to the use of force, the standard being one of reasonableness
• We value life more than property so if purely property at stake than you cannot use force
calculated to cause grave bodily harm or loss of life

While a defendant may use reasonable force in defense of her property, he has no right to willfully and
intentionally injure a trespasser in a manner that may result in loss of life or great bodily injury. The
only exception is when the trespasser is committing a violent felony with the potential of endangering
human life

DEFENSE OF NECESSITY (a limited defense)

You avail yourself of someone else’s property to protect your own property

Vincent v Erie Transportation Co

What is the defense? – if Shipowner D had to pay the dockowner for the damage to the dock, and the
shipowner had the privilege of private necessity what good is this privilege (what does it do/what is it
good for if you end up having to pay?)
• Answer is this → if the owner of the dock decided to cut loose the ship and it ran aground than
the shipowner would have valid claim against the dockowner even though the consent that
dockowner gave to shipowner had come to an end so the privilege works different in private
necessity – you may avail yourself of private necessity BUT any harm you cause to the
property you must compensate

Torts Review Class

- Expect all topics of negligence to be on the exam

- Defamation will not be on exam
- These will be: Nuisance, Assault, battery, false imprisonment, IIED

Nuisance
- The way you can think about nuisance claim → what the law is doing is entitling someone to use their
property in a certain fashion, that’s what the nuisance claim, in a sense, does. If a plaintiff is successful in
a nuisance suit, they say that the plaintiff is entitled to use a property a certain way and defendant is not,
and the defendant has the choice to buy the entitlement, so they don’t have to deal with interference (visa-
versa).

Boomer:
- Tweaked looking at it as purely entitlement
Misuse:
Whether the plaintiff will successfully have a design defect claim or whether a defendant will have a
successful argument that the design is not defective OR that the design may be defective but the plaintiff
misused the product and then the question being: does that mean the defendant is relieved of liability, or
more likely, treat that as a comparative fault issue (this depends on what the jurisdiction defines as fault).
If the misuse foreseeable or unforeseeable? For auto accident, it is foreseeable that a car will crash even
though that’s a misuse of the product, as opposed to someone using a lighter completely incorrectly and
getting injured as a result → that would likely be a good argument of misuse. Second aspect is whether
the misuse was intentional or unintentional (foreseeable and unintentional = product is defective, if
misuse is unforeseeable and intentional = product is not defective). Another aspect of this scenario is not
only design defect but also failure to warn (all brought within the prima facie case of the defendant as a
commercial seller, and under defect you’ll mention defect and failure to warn).
- An unintentional unforeseeable misuse will probably be undefective

Product liability:
- Liability goes to the manufacturer and ANY commercial seller of that product.
- If the product is subsequently modified by a seller, then the seller may be solely liable
- Employee using machine that has safety feature which has been disabled. Seller designed and built a
product, put into stream of commerce, and someone is injured. This is a product liability against
manufacturer, wholesale, and seller. In strict liability, the employer cannot be held liable for the product
liability (likely dealt with worker’s compensation). Here, the seller can foresee, and the product’s misuse
is intentional.
- Doctrine for merchantability
- Fitness for: Difference turns on the seller’s awareness of the merchant’s particular intended use of the
product. Purchaser would have to explain to seller the purpose of why they want the product and the seller
would have had to have made assurances to the purchaser.

For intentional tort:

- Someone having a purpose for a particular outcome or substantially certain of a particular outcome

Assault and Battery:

- Assault you must apprehend it and conscious awareness of it but battery you do not need that
- Dual intent: Plaintiff is stuck with having to prove that the defendant had sufficient awareness to know
what they were doing was wrongful as opposed to the defendant shooting someone and claiming based on
their delusional understanding of the world that they were defending themselves. If they had intent to do
it, that’s battery (flipside to dual intent). → Ask where this is from
You can have situations where someone is acting negligent but it’s an intentional tort claim like pointing
an unloaded gun at someone and pulling the trigger, but the gun is actually loaded, and you shoot
someone. It could be a negligence case, but you’d definitely have an assault and if the gun happens to be
loaded, you’d claim transferred intent battery.
- Apprehension is that you are aware that there’s imminent contact that you would perceive would be
harmful or offensive. If you think you’ve unloaded a gun and the other person thinks they’re perfectly
safe, then they didn’t experience apprehension and no assault (did the plaintiff objectively experience
apprehension)?
- You have to be aware at the time the contact would occur (near-miss)

Public Nuisance:
- Anyone in the public may bring a claim but for someone unusually affected, they could bring an
individual public claim. It’s not a private claim because the interference is with a public right of way and
not their own property.
Nuisance in Negligence:
- A negligent creation of a nuisance does not require showing all the elements of a prima facie negligence
case, just the first two elements (breach of a duty) and then go into the nuisance prima facie case.
Someone enters property and doesn’t cause damage but creates a nuisance.
- If abnormally dangerous, then it’s the strict liability context and only go through nuisance

Indeterminate Product Defect → Ask about this

- If pursued as product liability, then it’s indeterminate product defect, and if it’s a negligence claim then
use res ipsa

In a prima facie case, start with what a plaintiff would say and raise the defendant’s arguments element by
element or do it at the end.

Risk Utility:
There are certain products that consumers should not have expectations because they contain complicated
design choices that they cannot weigh or consider. Jurisdictions disagree about which products fall into
that category.
- Parties will argue each way

For the essay, identify plaintiff and defendant, what are the facts, what are the elements? That moment
when you connect the correct fact with the correct element in making the determination in whether the
element satisfied or can be challenged, that’s the key → you don’t need to reference any case.

Unavoidable unsafe quality (third restatement of torts) If a product has substantial health benefits for a
negative impact on a small number of users

- Provisions of restatement concerning strict liability in common law

Hypothetical

Mike to Denny: Trespass to chattel

- Intentional interference with Mike’s possession which results in damage
- Yes, I did trespass to chattel, but Denny would argue that the further accidents were superseding events

Paula v. manufacturer
- Product is unavoidably unsafe, serious danger for a small number of users BUT the benefit that the
product provides is not sufficient to outweigh that danger