Torts Outline Nyu
Torts Outline Nyu
Torts Outline Nyu
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I. Intentional Torts
A. Many intentional torts are correlated to crimes, and seek to compensate the victim;
criminal law seeks to punish the criminal.
B. Battery is unconsented physical contact with another person.
1. Elements of battery:
a. Unconsented
b. Touching of another person
c. Intent (meaning intent to touch, not necessarily to cause harm)
C. Trespass to Property
1. Elements of Trespass to Property:
a. Unconsented
b. Entering someone else’s property
c. Intentionally (no need for intent to do damage or harm)
5. Trespass in Cyberspace
a. May block robotic spiders from searching Ebay: it’s like intruding
on private property and capable of impairing use.
Ebay v. Bidder’s Edge (N.D. Cal. 2000)
b. California tort law does not extend to e-mail that neither damages a
computer system nor impairs its function.
Intel Corp. v. Hamidi (Cal. 2003)
P: D used Intel e-mail system to send 6 messages to 35,000 current
employees railing against employment practices. D sent messages from
his home computer and breached no computer security barriers.
Messages did not harm Intel’s computer system, but caused discussion
and distraction among employees.
R: Use of system did not interfere with the possessor’s use of property.
--Economic harm done by distraction no different than sending angry
letter, yelling from a bullhorn, or making an angry phone call.
--California law requires demonstrable injury to the chattel for P to be
eligible for monetary damages, which didn’t happen in this case.
D. Trespass to Chattels
F. Assault
1. Elements of Assault:
a. Intent to touch or cause fear of harm
b. Fear/apprehension of imminent battery
4. Assault depends on the reasonable fear and perception of the victim, not
“the secret intentions of the person committing the assault.”
Allen v. Hannaford (Wash 1926)
F: P moving out of apt rented from D, and hired movers. D had placed a lien
on her belongings. When D found the movers, he threatened with a gun to shoot
them “full of holes” if they continued. D later asserted the gun was not loaded.
G. Offensive Battery
1. Elements of Offensive Battery:
a. Unconsented
b. Intent to cause harmful or shameful/offensive contact or imminent
apprehension.
c. Actual offensive/shameful contact with P or something closely
attached to P.
d. (Do not need to be aware of incident: liability even if P sleeping)
2. For some types of assault, the insult matters more than physical harm.
Respublica v. De Longchamps (Pa. 1784)
F: D struck cane of French ambassador.
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3. Liability in cases where malice, wantonness, outrage and indignity played a
role, even if no physical harm.
Alcorn v. Mitchell (1872)
F: Parties involved in legal proceeding for trespass. After trial, D spat in face
of P with large number of people present.
R: Courtroom is the “temple of justice”: important for parties to feel safe.
H. False Imprisonment
1. Elements of False Imprisonment:
a. Choice/free will impeded
b. Force or a threat of force
c. Not just cause
d. P must be aware of the confinement, or suffer harm due to it.
5. Implied consent during sporting events must have limits: players may not
violate rules of game and throw unlawful blows.
Hackbart v. Cincinnati Bengals (10th Cir. 1979)
B. Insanity
1. Must have intent to cause violence, even if premised on delusion.
2. Insane person liable for damage in the same way a sane person would be.
McGuire v. Almy (Mass. 1937)
F: D was patient in asylum who had fit and broke furniture. She attacked her
attendant who entered room to restrain her.
Court cites two goals of tort system:
--Deterrence: is that plausible? D has no idea what she’s doing.
--Compensation: that seems to be the real issue at play.
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3. Gould v. American Family Mutual Insurance Co. (Wis. 1996)
H: “Where a loss must be borne by one of two innocent persons, it shall be
borne by him who occasioned it.”
R: Can deter by encouraging relatives to care for the insane.
C. Self Defense
1. Elements of Self Defense:
a. Reasonable apprehension of imminent harm
b. Proportional response
2. Not retaliation: must stop all violence once danger subsides.
D. Defense of property
1. Unacceptable to use wounding force in the defense of property.
M’Ilvoy v. Cockran (Ky. 1820)
F: D shot and severely wounded P while P was attempting to tear down a fence
on D’s land.
Thoughts from Class:
--Court allows D to commit battery, but not inflict harm.
2. Even if a trespasser is guilty of a crime, an owner may not set a device that
could kill or maim, unless the trespasser poses a threat to the owner’s life.
Katko v. Briney (Iowa 1971)
F: D owned a house where he stored valuable bottles and jars. House
repeatedly robbed and D’s possessions stolen. D put up “no trespass”
signs, to no avail. Set up spring gun that shot and wounded the robber.
R: Should not allow windfall damages, even if letting P recover.
E. Recapture of Chattels
1. Elements of legitimate recapture of chattels:
a. “Hot pursuit”
b. Lawful contact
c. Reasonable force
d. Wrongfully taken
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2. The right to use physical force to recover property requires possession by
the owner and a purely wrongful taking or conversion. Rule of hot pursuit
also allows force if someone takes your property and you must act quickly
to get it back.
Kirby v. Foster (R.I. 1891)
F: P bookkeeper for D. When $50 was lost, D blamed P and docked his pay. D
gave P to pay company employees: P kept $50. D attacked him to get $ back.
R: When there was no immediate justification for force, it is critical to use the
justice system to resolve disputes.
Thoughts from Class:
Key fact is that D had willingly handed the money to P to begin with.
F. Necessity
1. Things to look out for with necessity:
a. Temporary need
b. Urgent need
c. Situation out of defendant’s control
d. Response resulting in trespass, not harm to a person
2. Must balancing two sets of interests in necessity cases: property owners and
person who needs temporary refuge.
5. Since P’s dock not the specific threat to D and the damage was within D’s
control, D is liable for damage to the dock.
Vincent v. Lake Erie Transportation Co. (Minn. 1910)
F: Steamship tied to dock to unload cargo. Nor’easter developed. Ship could
not get tug boat to pull it from harbor: and had it untied, it could have been
destroyed. Owners stood by ship, replaced ropes as they broke and added
additional cables. The ship banged against dock, causing $500 in damages.
R: D intentionally strengthened the ropes attached to the dock, and repeatedly
repaired or replaced fraying or broken ropes. D clearly intended to tie the ship
to P’s dock, action that caused the damage.
D: Boat was lawfully tied to dock, D could not safely have removed the boat
using due caution and proper diligence, and damage was result of accident and
D is not at fault.
Thoughts from Class:
--Economics perspective: Understand case in terms of the value of the boat and
the value of the dock, it was worth it to the boat owner to stay, and it’s efficient
for him to stay. Court correctly allocated damages.
--Unjust enrichment. Boat owner taking advantage of Vincent for his own
interest, so makes sense for him to pay.
--Corrective Justice perspective: if you act in a way that injures someone you’re
always at fault.
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III. Early History of Tort Law
A. U.S. cited Brittish courts far more through 19th century than we do now.
1. Modern tort law began after Norman conquests, after 12th Century.
2. Early right to recover damages similar to strict or complete responsibility.
D. Basis for tort liability was any harm from volitional acts. If you intentionally did
anything, and it caused harm, you were liable; essentially strict liability, because so few
available excuses.
E. These theories in part based on the writs that were available at the time:
1. Writ of trespass: was based on a volitional act that might have caused some
breach of the peace. A key reason for allowing recovery in court was to prevent
duels and physical disputes.(led to things like “equicidal blacksmith.”)
2. Writ of trespass on the case had different forms:
a. Intentional act indirectly harm
b. Relational torts—relations entered into between P and P, where D made
promise of duty of care, and failed to perform (innkeepers, cabbie, Dr.)
c. Had to show why D should have behaved carefully toward you.
3. Cases originally distinguished based on how you initiated the action: in trespass
you could seize the property; trespass on the case, served notice of summons.
4. Problem in Scott v. Shepard (1773): did throwing lit squib cause direct or
indirect harm, since it was passed from person to person?
5. Vast majority of cases we think of as modern day tort cases left out of picture.
F. Problem with separate writs is that you needed to chose one—if you chose wrong, it
could be extremely expensive and difficult to change your mind. Could lose case just
from choosing wrong writ.
G. In late 19th Century, courts begin to reform and throw writs out the window. At the
same time in America, begin totally rethink and rewrite tort law.
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H. Brown v. Kendall (Mass. 1850) (LANDMARK CASE)
F: Two dogs fighting near masters. One man took a stick and started hitting dogs to
separate them. Second man came closer and got hit in eye with stick.
H: A man cannot be liable for causing an injury if he was exercising ordinary
care, acting lawfully, and intending no harm.
Only two ways to recover: 1. Intentional tort (mean the hit the guy);
2. Negligence (you acted irresponsibly)
--Burden of proof on P, not D, to demonstrate a lack of proper care
Thoughts from Class:
--Appeared under old tort law to be a straight trespass case: for centuries, would
be liable for hitting person right behind you.
--Essentially knocks guts out of special relationships, intentional acts, and writs.
--Now, just liable for your own behavior, and acting responsibly.
I. Fletcher v. Rylands
F: D hired workers to build a reservoir on his property. Turns out built on old
mine…reservoir flooded onto neighbors’ property.
H: You are liable for damage from non-natural uses of your land. Assume risks
when you enter society because we all do things there: but on your land, entitled to
enjoy peaceful enjoyment.
Thoughts from Class:
--A Nuisance is something that prevents neighbors from enjoying their own property in
the manner they chose.
--There has been much debate and discussion about Fletcher—one common theme has
been strict liability for damage to someone’s property.
A. Holmes, The Common Law: Liable for harm resulting from irresponsible choices.
You are at fault if you have made a MEANINGFUL CHOICE that did not meet
societal NORMS of engaging in that activity: IF YOU DID NOT ACT
RESPONSIBLY. People who are injured should otherwise take steps to be
responsible for themselves.
1. Strong proponent of a negligence based system: it’s not fact of having acting
volitionally, it’s fact of having acted carelessly, without due regard for rights of
other people.
2. Didn’t like that old tort system based entirely on causation. No natural limit,
you could be liable for anything
3. If something happens to you, it’s the loss of the sufferer—we are already
responsible for ourselves. Don’t blame someone else.
4. The one choice you do have is to act responsibly. It’s only when making
MEANINGFUL CHOICES that the importance of making a good choice has
moral punch to it.
5. You don’t get into faulty choice until you do something contrary to normal acts
6. In Rylans case, he’d ask if you did something abnormal; if it was normal, did
you build the reservoir in a responsible way?
Assume we are each entitled to what we have, then in an equitable society, nobody
can take away from another person what they have. If you take from your
neighbor, you are ethically responsibility for providing restitution. Looks a lot like
early law trespass: if a volitional act caused harm, there’s strict liability. Simple
approach to tort law—based on individual relationships, not societal.
1. Distributive justice: people will have the share of honors and wealth based on
the contributions that they make to society. Use one set of criteria to determine
if distribution of goods in society is proper.
2. Corrective justice: proper relationship between any two individuals in society.
(For corrective justice, must accept state of distribution as a given when looking
at the ethical norms that govern one person’s behavior vis a vis another person.)
3. Any time you chose to act, consequences take away someone else’s property,
you must compensate them. (looks like a bit like our intentional tort system)
4. Not a question of whether punishment fair or right: just fact that you did
volitional act that caused harm is sufficient for you to be forced to pay damages.
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C. Fletcher: Theory of nonreciprocal risk
If someone is hurt in a situation where there is reciprocal risk, there is no liability.
If there is a nonreciprocal risk, there is strict liability.
1. No social concerns—all he cares about are plaintiff or defendant. No baseline of
tolerable injury.
2. Can have some loony situations: ie. you can drive a car and hit another car and a
pedestrian, and your liability to each party can be different, because one is a
reciprocal risk, and one isn’t?
3. Opposed to distributive justice because it’s not focused enough on the nature of
the individual action.
4. Negligent acts are by their nature excessive.
5. Notes at the end of his article, that his theory requires a simplistic, metaphorical
way of looking at risk. Not as scientific or precise as economic theories.
1. We spend too much time trying to figure out who’s right and wrong: key is to
figure out how to get problems resolved in the future in appropriate way.
2. Assumes defect free bargaining situation and no shortage of information.
E. Calabrese: Reduce accident costs and tort system to deal with inequities in society
and redistribute wealth to those least able to afford accidents.
1. Starts with notion that we don’t want to keep people from dying, we just don’t
want there to be excess deaths. In looking for cheapest cost avoided, should not
limit yourself to the parties most directly involved in the accident.
2. This is a theoretical objective, but you won’t achieve a perfect result. Calebrisi
realizes that: says you should design tort system to create desirable result, but
must realize you won’t achieve perfection.
3. CALEBRISI’S KEY GOALS:
a. Primary goal of tort system: create pareto efficiency in liability by
reducing accident costs.
b. Secondary goal is to reduce social cost of caring for accident victims,
cause least pain in spreading the cost of accidents.
c. Third goal is that tort system must pay attention to tertiary, ie. reducing
transaction costs of achieving first two goals. Several ways to do this:
(1) Look to cheapest cost avoider.
(2) Look out for hidden costs, things primary parties involved aren’t
looking at. Account for all externalities.
(3) If you can’t figure these things out, who is the best briber? Who
is the best guesser for figuring out the costs to the parties, and
communicating cost cheaply to party that can change behavior?
Role of the court system is to achieve the cumulative preferences
of society, by being the best guesser. THIS INSIGHT
HAS MOST SHAPED TORT LAW IN THE LAST 35 YEARS.
4. Also supports the Distributive Justice Theory: Use tort system to deal with
inequities in society and redistribute wealth to those least able to afford
accidents.
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V. Negligence
A. Negligence is the dominant paradigm of tort law.
B. Elements of a negligence claim:
1. Did defendant have a duty to the plaintiff? (DUTY)
2. Did defendant breach that duty? (BREACH)
3. Was the plaintiff injured? (DAMAGE)
4. Causal connection between breach and injury? (CAUSATION)
C. Even if you do something egregiously negligent, you are not liable if nobody gets hurt.
You are not liable if your action has no consequences.
D. Can’t have individual liability standard for each D: apply prudent man standard.
Vaughan v. Menlove (C.P. 1837)
F: D had hay stacks in yard, near cottages of P. Warned stacks posed fire hazard.
Took risk. Burned down D and Ps’ homes. D said too dumb to realize the risk.
H: It is impractical to hold liability for negligence to the individual standards of
each person: the prudent man test should apply.
Thoughts from Class:
Two problems with individual test of negligence:
1) Lets people off hook to easily. 2) Don’t want court to be burdened with endless
number subjective tests.
F. Minor can be held to adult standard when engaged in dangerous adult activities.
Daniels v. Evans (N.H. 1966)
F: A 19-year-old killed in motorcycle crash with car driven by an adult. His family
sued the other driver involved.
H: When operating a motor vehicle or other dangerous machine, a 19-year-old
must act as an adult, and be held to the standard of one in court.
R: Inconsistent with policy for safety on roadways to let minors be reckless.
--Hold beginner to level of expert to discourage people from trying dangerous things
they aren’t really ready to perform. Stevens v. Veenstra
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K. Can’t apply different standards to rich and poor based on their wealth.
Denver & Rio Grande R.R. v. Peterson
C. No negligence in effort to save human life unless a prudent person would find the
effort rash under the circumstances. Negligence implies an act wrongful in itself.
Eckert v. Long Island R.R. (1871)
F: D was operating a train. P’s decedent observed a young child in the tracks, who he
believed was in the path of the train. He ran out to save child, killed in process.
Q: Is P running in front of the train to save child’s contributory negligence?
D: P’s injury result of his own action, not compelled by any need to defend himself.
Thoughts from Class:
If act itself is not wrong, your action can’t be negligent. What does “wrong” mean in
this context?
--Certain things just aren’t worth it: saving them is wrong social choice (not worth
trading a human life for a kitten.)
2. To really apply Hand’s formula, need likely level of success of any method of
prevention and cost of prevention technique. NEED GOOD INFORMATION.
3. Generating information can cost more than it’s worth. Then take best guess.
4. Need system for valuing human life.
5. Do you apply for all costs, or just marginal costs?
6. Brotherhood Shipping
F: Harbor had inner and outer harbor. Inner part secure. City tried to have it
both ways: said they were a safe harbor, but known that they have bad slots.
H: Posner finds city negligent.
Thoughts from Class:
--Even if it could be proved that probability of such an accident was low, still
not likely to provide much protection for city, given the extremely high of the
accident once it did occur.
--Question now at trial will not be level of risk or probability, BUT, question of
whether city could have done anything that would have been effective.
H. Rejects sudden emergency doctrine: with our without emergency, person must
exercise appropriate level of care.
Lyons v. Midnight Sun Transportation Services Inc. (Alaska 1996)
F: P pulled out of a parking lot as D driving truck down the street. D saw P, hit brakes,
and tried swerving into left lane to avoid her, but P moved further into the traffic lane.
I. Common carriers have duty utmost care and vigilance: must prove that no
additional protective measures would have been possible or prudent.
Andrews v. United Airlines (9th Cir. 1994)
F: P getting up from seat after flight when luggage from overhead bin fell.
Thoughts from Class:
--As a common carrier, presumption thrown on United they needed to do something.
--Effort to afford cost and difficulties of trial, and presumption that airlines are in better
position to get insurance.
--Idea behind no fault: in long run, more efficient for system not to try figuring these
things out.
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VII. Custom
A. Saves time on proof/fact finding: just ask if they were following custom.
C. Does court really know what it’s saying about industry standards? Custom provides
framework for judging behavior.
C. If potential illness severe, must administer test if cheap, easy, and harmless, even if
low risk of illness.
Helling v. Carey (Wash. 1974)
F: P consulted D about eye problems for nine years: doc never checked for glaucoma.
Q: Can D be held liable for damages even if he followed established medical custom?
H: No imperative that testing be required as matter of law. Even young patients—who
are lower risk—deserve to be tested, considering how cheap, harmless.
Thoughts from Class:
--Court ignores that 96% are false positives. May doctors have good reason for custom.
Should court interfere?
D. Doctor must provide all information reasonable under the circumstances for
patient to make informed decision.
Must have causation: link between failure to disclose and harm. Only when
explanation of risks would have resulted in avoidance of treatment.
Canterbury v. Spence (D.C. Cir. 1972)
F: P with severe back pain needed major surgery. Doc did not explain the operation or
associated risks. When D performed the operation, spinal cord worse than expected.
Recovery went well but, left unattended, patient fell out of bed. suffered paralysis.
--True consent to what happens to your body requires an informed choice, which means
knowing options available and risks of each. This is long established in law.
--Rejects argument that patient must ask for information before receiving it: patient may
be ignorant, confused, or scared about asking.
--Scope of disclosure: all that patient needs to make a truly informed decision, ie. all
risks potentially affecting the decision. Should include risks, alternatives, and
consequences if the patient doesn’t receive the care.
19 Professor Zimmerman, Torts, Fall 2004
--Two exceptions to duty to disclose: 1) when patient is unconscious or otherwise
incapable of consenting and need is imminent. 2) when reaction to information will be
so violent and severe that it could be dangerous—only in extreme cases.
Thoughts from Class:
--Court willing to ignore custom because it was not about complex assessment of
medical procedure—it’s about a patient’s basic right to know. Court feels competent to
make basic judgment about people’s rights.
--D said custom was that doctor in control about how much information to give patients.
--Courts generally find that when doctors don’t provide enough information, it’s
deemed as negligence and not battery; if a doctor lies about what they are going to do,
then can have finding of battery. Also, very short statute of limitations for intentional
torts, so often bring action as negligence.
--Trial took 17 years to finish. On remand, court found for D. Two reasons: 1) P had
far more serious disease than doctor realized; 2) hospital did not need to disclose risk of
falling out of bed—patient should have known. Together, these factors eliminated
causality between doctor’s negligence and patient’s condition.
D. Where a statute imposes a duty designed to protect others, and that duty is
breached in a way that causes the harm the statute is intended is to prevent, the
perpetrator is liable.
Osborne v. McMasters (Minn. 1889)
F: D at drug store sold P deadly poison without labeling it poison as required by law.
E. Statute must have been designed to protect against the damage in question.
Gorris v. Scott (Ex. 1874)
F: P sent his sheep with D who penned them in way that violated the Contagious
Animal Disease Act of 1869. Animals washed overboard.
F. Violation of the statute must have direct causal relationship to the injury.
Brown v. Shyne (N.Y. 1926)
F: P employed doctor to care for her back. After series of treatments, P became
paralyzed. “Doctor” unlicensed and performing medicine illegally.
H: Fact that D violated public health law not negligence per se.
R: If injury was caused by lack of skill or care, could have happened even if D had
license. Absence of license has nothing to do with way the doctor applies medicine.
--By holding himself out as able to provide treatment, D must be held to standard of one
who can legally perform medicine.
Thoughts from Class:
--Why is patient using the statute as basis for bringing suit?
Because if you can do this and prove negligence per se you create a much easier case.
Restatement Third differentiates between a driver without a license because he
forgot to get a renewal and a driver with no license because he failed his test.
H. Liable for action of third party if that’s what statute is intended to prevent against.
Ross v. Hartman (D.C. 1943)
F: D left keys and door unlocked outside of garage. Someone stole car and
killed pedestrian. Family sued D. Law prohibits leaving an unlocked car “to stand or
remain unattended in any public street or place.”
H: Law designed to protect people from dangerous or unlicensed drivers stealing cars
and hurting others. D violated law and specific thing it sought to avoid.
J. Laws are intended to codify customary rules: court should read into statute
customary exceptions that existed before the law.
Tedla v. Ellman (N.Y. 1939)
F: P and her bro walking along side of road with their backs to traffic when hit by D.
Statute said when along the side of highway, must walk facing traffic.
R: If pedestrians were always bound to walk on one side the road, even if it posed a
grave danger under the circumstances, the law must be read to allow pedestrians the
right to exercise due prudence and care for their safety.
B. If you establish prima facie case, D could win by refuting that this was caused by
negligence, or raising enough doubt.
C. D not a bad position: they had the most information about what actually happened,
especially before discovery. Intended to level playing field.
D. If instrument that can cause harm is in a place where it does cause harm, prima
facie case is negligence, and D must refute it.
Byrne v. Boadle (Ex. 1863)
F: P walking in front of D’s (a dealer in flour) premises when a barrel fell and hit him.
R: Case of res ipsa loquitur where the mere fact of the accident implies negligence.
--Duty of warehouse owner to keep barrels from falling: prima facie case if one falls.
E. Hotel liable for accidents from its property when it has notice of unruly guests.
Connelly v. Nicollet Hotel (Minn. 1959)
F. Hotel not liable when it exercises due care under usual circumstances and
incident still occurs as a result of guest’s action.
Larson v. St. Francis Hotel (Cal. App. 1948)
B. Last clear chance doctrine: if D had opportunity to avoid the accident at the last
minute and didn’t take the opportunity, he can be found negligent regardless of
plaintiff’s contributory negligence. Key is for D to have had last clear chance to
avoid the accident.
E. Negligent for parents to let child wander into roadway: can’t recover for his death
Hartfield v. Roper (1839)
F: Infant wandered into a roadway and was struck by a sleigh operated by D.
R: Infant is not an independent actor: he belongs to his parents who are responsible for
caring for him. In respect to third parties, parents neglect is infant’s neglect, and counts
as contributory negligence.
CASE NOW OVERTURNED BY COMMOM LAW OR STATUTE ALMOST
EVERWHERE.
(In Dashiell v. Keanou-Kona Co. (9th Cir. 1973) held that joint enterprise
rule should only apply to business relationships.)
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XII. Comparative Negligence
A. P loses right of recovery only up to extent of his fault.
B. Theorists have different views on it:
1. Makes sense from perspective of corrective justice.
2. Law and economics people don’t like it—think it’s wildly inefficient,
a. Increases transaction costs and time and money to try a case. Won’t
know the costs and the likely reward or punishment.
b. Doesn’t give people good signals. We are asking juries to make
highly individualized decisions. Like hard rules.
C. Third Restatement §7 adopts comparative negligence
D. P understood and appreciated the danger he faced better than anyone else:
by choosing to stay, he assumed liability.
Lamson v. American Axe & Tool Co. (Mass. 1900)
F: P’s painted hatchets and hung them on rack to dry. D bought a new rack
from which hatchets fell when shaken by nearby machinery. P warned his
manager of the danger. Manager did nothing, said P could use racks or leave.
F. P assumes responsibility for risk when he enters a ride knowing its dangers.
Murphy v. Steeplechase Amusement Co. (N.Y. 1929)
F: P injured his knee when he fell on ride called “The Flopper.” Prior to ride, P
saw people falling and screaming in merriment on the ride.
R: No evidence D operated ride negligently or it didn’t perform as intended.
H. Where P has no sincere choice, and is not informed of all terms of contract,
she has not waived her right to recover by signing a release.
Obstetrics & Gynecologists Ltd. v. Pepper (Nev. 1985)
F: Patient went to clinic for birth control pills. Told to sign a form or she would not
receive treatment. Prescribed pills that left her partly paralyzed, and her medical history
had contraindicated the treatment.
H: Form constituted an adhesion contract and was not enforceable.
27 Professor Zimmerman, Torts, Fall 2004
I. Where rule still exists:
1. Where someone made a completely optional choice to do something with
an understandable risk, and there is no compelling need for the court to
apply strict protection, ie. a baseball fan getting hit by a home run ball.
2. Professional sports (for normal risks involved in the game)
(Maddox v. City of New York holding based on professional sports rule.)
3. Firefighter’s rule (because they have safety net and other protections)
(Krauth v. Geller holding based on firefighter’s rule.)
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XIV. Joint and Several Liability
B. Several liability: liable for your share, but P gets to choose how much to take
from you. This was a possibility, but not a legal right.
C. Old rule: two D’s involved in same accident, P can collect everything from either D or
some from each.
1. Courts would not look behind P’s decision of how to collect, whether based on
convenience or malice.
2. Joint liability still a live concept in tort law.
E. Equitable indemnity: in courts of equity could say that D who was in something for
legal reason, but not because he did something wrong; or, where one D was far more at
fault; court would read into relationship an equitable indemnification, and allow party
less at fault to recover from guilty party.
1. Very tough standard to achieve—not common—a rarely used safety valve.
2. Second D would pay whole thing. Wouldn’t kick in until P paid by first D.
F. Old Cases:
If two wrongdoers jointly liable for tort, and one party has compensated the
victim, may not force compensation from party that hasn’t paid.
Union Stock Yards Co. of Omaha v. Chicago, Burlington & Quincy R.R. (U.S. 1905)
F: P (terminal company) was responsible for moving switching cars for D (railroad) in
its yard. Both parties failed to inspect a train that came loose and injured employee. P
paid employee damages and sought to recover from D.
R: Only exception to rule if two parties are jointly responsible for wrong, but one
clearly bears primary responsibility.
A party in the wrong cannot recover from another party equally in the wrong.
Merryweather v. Nixan (K.B. 1799)
G. Admissibility of Evidence
5. Professor Abraham’s test for toxic torts: substance, source, and exposure:
a. Must prove substance in question can cause P’s injury or disease;
b. Must prove that D and not someone else was the source of substance.
c. Must prove that P was in fact exposed to the substance.
H. Two grounds for defense in case of fire with two causes: 1) second fire started by
natural causes; 2) second fire much more menacing, and first fire “consumed by
it.” In that case, first fire not the proximate cause of the damage.
Kingston v. Chicago & N.W. Ry. (Wis. 1927)
F: P’s property was destroyed by a fire that formed when two smaller fires merged.
One fire’s source was unidentified; other fire was started by a spark from D’s train.
R: Where two tortfeasors jointly liable, each liable for entire cost of damages: can’t
be jointly liable with nature.
Alberts v. Schultz
(1) P visited his family physician with severe pain in his foot due to
constricted blood supply, a known sign of impending gangrene. Instead
of performing test, doctor sent him to specialist, who saw him two weeks
later. A bypass procedure failed, and he needed amputation.
(2) Court refused to find liability. It was not demonstrated that patient’s leg
could have been saved had doctor performed thorough diagnosis or had
the surgery been performed earlier.
J. Medical Monitoring
1. Court will sometimes award payment for ongoing medical monitoring before
damage has occurred.
2. Four part test in Paoli R.R. Yard PCB Litigation (3rd Cir. 1990):
a. P exposed to proved hazardous substance through negligence of D.
b. Because of exposure, P is at higher risk of acquiring serious disease.
c. The increased risk makes periodic diagnostic medical exams reasonably
needed.
d. Monitoring and testing will make early detection possible and helpful.
K. Court allowed P with asbestosis to recover for future risk of getting cancer.
Jackson v. Johns-Manville Sales Corp. (5th Cir. 1986)
36 Professor Zimmerman, Torts, Fall 2004
17
XVII. Basic Theories for Proving Causation
2. Restatement(Second) §433(B)(3)
Where two or more actors commit indistinguishable tortious acts, and it
can be proved that the harm to P was caused by one of them, but not which,
the burden is on each D to prove that his act did not cause the harm.
8. If you don’t have all parties, should 50% be required to pay for 100% of market?
a. Some courts say can’t charge any one company more than it’s liability;
b. Some say if you have a reasonable share of companies, each is 100%
jointly and severally liable.
c. CA says don’t need all companies to collect 100%, but each company in
court should pay a proportional share of the award according to its
liability relative to the other companies.
11. Civil conspiracy: Some people tried suing different companies for all being
similarly negligent. Problem is there is no concerted action, and the whole idea
of a conspiracy to be negligent seems dubious.
38 Professor Zimmerman, Torts, Fall 2004
18
XVIII. Proximate Cause
--Lots of things lumped under foreseeable: if you say foreseeable on a test, explain what you mean by
foreseeable, ie. if you mean factually foreseeable, say that.
--Be discreet in discussion of proximate cause—don’t just say there’s a proximate cause problem,
unless you can explain why there is one.
A. About theory and policy, and court looking for fairness--not facts. About the
consequences of factual causation.
B. Not every case presents a proximate cause problem.
2. In straight forward accidents, clear why something happened and who’s at fault.
1. Usually arises because of several broad types of problems:
a. We don’t have simple cause and effect, but chain of events that unfolds
in such a way that somebody eventually gets hurt.
b. What happens is totally unexpected.
FORWARD LOOKING—DID THINGS NATURALLY RESULT; BACKWARD
LOOKING, DID SOMETHING INTERVENE
C. Surrounding buildings destroyed by fire not proximately caused by original act.
Ryan v. New York Central R.R. (N.Y. 1866)
F: D’s carelessness led to one of its engines setting fire to a nearby woodshed. That
fire spread and burned down several other houses.
H: Burning is results from the state of the wind, materials of nearby buildings,
weather, and other things out of D’s control.
R: Holding owner liable for securing property of all his neighbors, would create
untenable liability. Would lead to “downfall of civilization.”
--Homeowners themselves are best able to insure against damage to their homes.
--Substantiality issue: link between P’s injury and D’s action not substantial enough.
3. Courts have been increasingly reluctant to allow criminal activity to break the
causal chain: in old law, intervening wrongdoing always severed causal link.
4. If D found at all liable, can be held jointly and severally (and therefore 100%
liable) if can’t find intervening actor.
7. In Landeros v. Flood (Cal. 1976) court held that physician could be held liable
for failing to identify abused child, even if he wasn’t the abuser.
8. In Bigbee v. Pacific Telephone and Telegraph Co. (Cal. 1983) P was stuck in a
telephone booth just 15 feet from a major road when he was struck by a drunk
driver. Court found company could be liable regardless of intervention of
driver. (cited Restatement §449)
9. In Britton v. Wooten (Ky. 1991) possible third party arson destroyed a building
where D had stored to much flammable stuff. D was found liable.
E. Wagner rule: Can recover damages for injuries incurred during rescue.
Wagner v. International Ry. (N.Y. 1921)
F: P’s cousin fell out of train due to D’s negligence. When P left the train to try
saving him, he was injured in the dark.
H: In a continuous chain of events, where an injury occurred and P quickly came
to the rescue, in a way not inherently negligent in light of the emergency
confronting him, D is liable for P’s injuries during the rescue.
--Even if D didn’t anticipate P coming to rescue, must be treated like he could have.
--“Danger invites rescue.” The natural reaction of the mind is to go rush to the rescue
of one you love—the court should not ignore this instinct.
G. Can recover damages for injury sustained in an effort to escape, when under a
reasonable apprehension of personal injury.
Tuttle v. Atlantic City R.R. (N.J. 1901)
F: One of D’s trains jumped the tracks while doing a drill. P ran out of the way when
she saw it coming towards her, and hurt her leg. Had she stayed, would have been fine.
40 Professor Zimmerman, Torts, Fall 2004
19
XIX. Proximate Cause: Basic Rules
B. Polemis rule: liable for all consequences of your negligent act, whether or not the
consequences are forseeable.
In re Polemis & Furness, Withy & Co. [K.B. 1921]
F: A vessel, with flammable liquids among its cargo, was being unloaded, when a
worker dropped a heavy plank which crash into liquids and blew up the ship.
H: Likelihood of damage is only relevant for determining negligence: D is liable for
all harm resulting from his negligence.
Thoughts from Class:
Mirrors torts “egg shell skull” rule—though courts seem less comfortable with this in
negligence context.
--Holmes wouldn’t like this: disincentive to do business, doesn’t distinguish between
accidents and bad choices.
2. “Harm within risk”: if you expect to cause property damage, but you cause
injury instead, no liability for injury. Harm not within risk.
F: P standing on train platform. Two passengers came running down as the train
pulling away. A conductor on the train tried to pull them up, while a guard on platform
pushed. While pushing, a package containing fireworks fell under the train and
exploded. Knocked a scale which injured P.
Thoughts from Class:
--Concept of duty flows from old writ system, and concept of trespass on the case.
--Cardozo is trying to distinguish from Polemis here, so he gives two explanations.
But see…..
Union Pipe Co. v. Allbritton (Tex. 1995)
F: A pump caught fire in P’s plant, and she went with her supervisor to put out the fire.
She then walked back, following her boss over the pipe. She slipped on the pipe and
injured herself. He blamed “his bad habits” on leading her that way.
Q: Was P injured because of the pipe fire?
H: Even if the fire was a “but-for” cause of the injury, the immediate danger had
come to rest when the accident occurred.
R: The pump fire merely created the general circumstances for the injury—it was too
remote to be blamed as a legal cause.
E. Wagon Mound I rule: not responsible for consequences of your negligence that
could not be reasonably foreseen.
Wagon Mound (No. 1) (P.C. Aust. 1961)
F: Tanker berthed at harbor spilled oil. The oil spread to P’s dock. One of his welders
was working in the area, and dropped a flaming rag that set the water on fire and burned
down his dock.
R: Must put a limit on liability somewhere: Polemis rule too broad.
F. Kinsman rule: if it’s the sort of harm that could generally be expected, caused to
the type of plaintiff you might expect, D is liable.
Petition of Kinsman Transit Co. (2d Cir. 1964)
F: A thaw let loose a ship improperly docked near Buffalo. The ship started drifting
down stream, knocking another ship loose. Both ships wound up stuck at a drawbridge,
where they blocked the flow of water, causing massive flooding. The accident occurred
at night, when no ships were expected to need passage under the drawbridge.
R: Friendly doesn’t like Wagon Mound: forseeability of the kind of harm irrelevant.
Thoughts from Class:
In subsequent case shippers sued Kinsman, when they were unable to deliver cargo
because the bridge and route upriver were blocked. Court found for D. Where damage
and loss purely economic, and no contract, courts reluctant to let P recover.
42 Professor Zimmerman, Torts, Fall 2004
20
XX. Emotional Distress
A. Concerned with situations where there is a negligent infliction of emotional
distress, but either:
1. That’s the only thing inflicted (no visible, physical harm)
2. Or, physical distress comes from the emotional harm. (ie. heart attack)
B. The law has developed different rules over time….
C. Mitchell rule: there is no right to recover in case where no physical injury results
directly from the negligence.
Mitchell v. Rochester Railway (N.Y. 1896)
F: P waiting for train. A horse drawn carriage came up to the intersection, and the
horses came very close to P, so that her face was between them. P claimed to be so
frightened by the incident that she miscarried and fell ill.
Thoughts from Class:
--Court raises familiar issue: what happened to victim not foreseeable—too remote.
--But court is really saying the problem is if we let her recover, lots of people in similar
circumstances will say “you almost hit me, I’ve had terrible consequences.” Court
making policy decision, not ruling for this case, but for the future.
D. Dulieu v. White & Sons [K.B. 1901]: early English case challenging Mitchell
F: P was working behind counter at her husband’s pub, when she nearly run over by
D’s team of horses. She wound up giving birth prematurely.
H: No basis for insisting on visible physical injury—shock is enough. Can’t bar
all valid claims on grounds that it might lead to more suits. BUT: P must
experience shock from fear of harm to herself, not her husband or his property.
E. Impact rule: can recover for emotional distress if there is any impact: don’t need
physical injury.
1. If P in Rochester R.R. hit by dust that’s enough.
2. Impact rule held steady very long time, but led to arbitrary results on bizarre
technicalities.
F. Zone of Danger rule: if you are in zone of danger (it’s sheer luck that you haven’t
been injured. there was no impact, but it was a near miss) you may recover.
(Courts still concerned about getting too many fraudulent claims.)
G. Modified Zone of Danger rule: 1) Must come within hair’s breath of injury; 2) if
you have more evidence, such as physical, objective manifestations of upset, you
have a more credible case.
(We are asking juries to judge something you can’t see, judge, or realistically value
when we allow emotional distress claims—this makes it easier.)
J. Trend now makes it harder to recover for emotion distress. Too expensive to administer
fact intensive trials: creates whole new world of negligence cases.
44 Professor Zimmerman, Torts, Fall 2004
21
XXI. Affirmative Duties: Duty to Rescue
A. A duty to care is normally a duty not to do a careless act. Rarely something you need to
do or of that you’ll be liable for not doing.
B. Vermont has duty to rescue statute: Zimmerman has never heard of it being enforced.
C. Some states have Good Samaritan laws: no liability if you intend to rescue.
1. D can’t be liable for failing to intervene if he does not owe P a legal duty.
Strictly moral duties are not legally enforceable.
Buch v. Amory Manufacturing Co. (N.H. 1897)
F: P, an eight year old, trespassed in D’s factory and was seriously injured
messing around with mill equipment. D had asked P to leave, but P did not
understand English.
R: Property owners owe very little to trespassers—can’t inflict undue injury,
but not bound to warn against secret dangers or stop him from hurting himself.
1. D can be liable for acts of omission if he is clearly the cause of the danger.
Montgomery v. National Convoy & Trucking Co. (S.C. 1937)
F: Ds’ trucks stalled at bottom of hill blocking icy highway, through no fault.
They put up flares near their vehicles. A car approaching could not see beyond
hill—by time it rounded the hill it was too late to stop—he collided with trucks.
Thoughts from Class:
--If danger results from your actions, you have a duty to those you put in danger.
These parties were not negligent. But they were in accident, and owed a duty.
--In part a misfeasance case. Had the truck drivers done nothing, they wouldn’t
have been liable. However, they did something, but not enough.
§327. Liable from preventing a third party who seeks to assist someone at risk
of harm from rendering aid.
D’s duty to the city itself, not each individual resident: it has not directly
targeted its service to each member of the public.
Moch Co. v. Rennselaer Water Co. (N.Y. 1928)
F: D had contract with city to provide water, including enough water for hydrants in
event of a fire. A building caught fire and spread to P’s warehouse. D was notified
about the fire, but failed to provide adequate water.
Thoughts from Class:
--If there is a contract, you are limited to the person with whom you made the
contract—not all other parties who might be effected by the contracted.
--The costs might be too high for city if water co. needed insurance for each person.
1. In Doyle v. South Pittsburgh Water Co. (Pa. 1964) court held that water
companies clearly assume a duty to third parties, and owe a duty to all those
falling within “orbit of risk of harm.”
2. In Harris v. Board of Water and Sewer Commissioners (Ala. 1975) the fact that
hydrant was installed leaves party liable for breach of duty by failing to provide
water under theory of simple negligence.
48 Professor Zimmerman, Torts, Fall 2004
23
XXIII. Products Liability: Background
A. Early Developments
1. Winterbottom v. Wright (Exchequer 1842): created significant protection for
manufacturers, by limiting suits by owner to the person who sold the
product, not the company that made it.
2. Established privity barrier that insulated manufacturers for nearly a century.
Adams-Arapahoe School District No. 28-J v. GAF Corp. (10th Cir. 1992)
H: Presence of asbestos in school represents a renovation cost that should
be addressed through contract law, not tort.
A. RST created law based on Traynor’s Escola dissent and subsequent cases.
B. RST §402A very important: unclear if Restatement 3rd will have same impact.
D. §402A. Special Liability of Seller or Product for Physical Harm to User or Consmr
1. One who sells a defective product which is unreasonably dangerous is liable for
physical harm caused to ultimate user or consumer, or his property, if:
(a) Seller engaged in selling such product (not occasional seller or service provider)
(b) Product reaches user/consumer in substantially unchanged condition.
(1) It may be inferred that the harm sustained by P was caused by a product defect existing
at the time of sale or distribution, without proof of a specific defect, when the incident
that harmed the plaintiff:
(a) was of a kind that normally occurs as the result of a product defect; and
(b) was not solely the result of causes other than product defect existing at time of
distribution.
51 Professor Zimmerman, Torts, Fall 2004
D. Key questions presented by Restatement
E. Tricky when product in use for a while, but no explanation other than defect.
1. Some states have repose rules. In PA, any claim against a contractor must be
brought within twelve years of work being completed.
53 Professor Zimmerman, Torts, Fall 2004
26
XXVI. Products Liability: Design Defects
A. Products designed in such a way that over time, a significant percentage of them
likely to cause harm. ( Like coffee pot in McCabe)
B. Restatement Third: A design is defective if a reasonable alternative design was
available and omission of the design renders the product unreasonably dangerous.
2. Decline of rule:
Micallef v. Miehle (1976)
F: Printer got his hand caught beneath roller on the press, hand was maimed.
H: Manufacturer has duty to design products to be as safe possible not only
for intended use, but also reasonably foreseeable unintended use.
R: Court said there was no justification for the risk: it would have cost almost
nothing to have fixed it, even if it was obvious.
2. Court won’t apply risk-utility test in gun cases: still consumer expectation.
Halliday v. Sturn, Ruger & Co. (Md. 2002)
F: P shot himself while playing with dad’s handgun. The gun came with box
for storage, detailed instructions on gun safety, and free offer of gun safety
course. But no safety lock for kids.
R: Gun manufacturers only liable for defects and certain guns that are
particularly unsafe, like “Saturday Night Specials.”
--Up to legislature to change gun laws.
Thoughts from Class:
--Consumer cases against cigarette makers generally fail on assumption of risk
grounds. Very few cases successful. State A.G.’s won by blaming companies
for state health care costs.
55 Professor Zimmerman, Torts, Fall 2004
3. Can find liability even if there is no alternative design
B. Restatement Third: Must warn when foreseeable risk of harm posed by product could
be reduced or avoid by provision of instructions, and omission of warning renders
product not reasonably safe.
2. DES—no duty to warn to grandchild of woman who had first taken DES.
Preconception tort not viable. Enright v. Enright v. Eli Lilly & Co. (N.Y.
1991)
3. Can’t hold blood plasma company liable for failure to find AIDS in its
product, before reliable HIV test was available. Doe v. Miles Laboratories
(4th Cir.).
G. P’s negligence doesn’t bar recovery, where car advertised for its speed, and
maker provided no warnings about tires, despite risk of situation.
LeBouef v. Goodyear (5th Cir. 1980)
F: P purchased souped up car with fancy tires and lots of horsepower. Manual said
don’t drive at high speeds for long period without high speed tires. Didn’t say whether
P’s tires high speed. P drove off road: tires failed while he was driving 100 MPH.
4. “Field” preemption: when the federal government has occupied the field,
leaving states no room to operate or regulate in the area.
5. “Conflict” preemption: states not expressly prohibited from regulating, but this
class of regulation will undercut what Congress is trying to do.
G. …but now they are inclined to demand more disclosure, especially in real estate.
1. Restatement Second has lost list of instances where you must disclose,
including when one party knows the other is acting under a mistake, and he
would expect the other party to reveal the information, because of relationship
between them, customs of the trade, or other objective circumstances.
J. At first courts felt very strongly that you could accept information at face value, now
seem to be leaning toward idea that people must develop some skepticism.
K. Need to show only that information was of a sort that’s actionable. Case may be
taken from jury if claim is so unimportant that jury couldn’t possibly find
reasonable man would be influenced by it.
Negligence:
3
Early History of Tort Law 9-10
4
Theories on Tort Law 11-12
5
Negligence 13-14
6
Calculus of Risk 15-16
7
Custom 17
8
Medical Malpractice 18-19
9
Statutes and Liability 20-21
10
Res Ipsa Loquitur 22-23
11
Contributory Negligence 24
12
Comparative Negligence 25
13
Assumption of risk 26-27
14
Joint and Several Liability 28-29
15
Vicarious Liability 30-31
Causation:
16
Cause in Fact Background 32-35
17
Theories for Proving Causation 36-37
18
Proximate Cause: Background and Intervening Acts 38-39
19
Proximate Cause: Basic Theories 40-41
20
Emotional Distress 42-43
21
Affirmative Duties: Duty to Rescue 44-45
22
Affirmative Duties: Gratuitous Undertakings 46-47
Products Liability:
23
Products Liability: Background 48-49
24
Products Liability: The Restatements 50-51
25
Products Liability: Manufacturing Defect 52
26
Products Liability: Design Defects 53-55
27
Products Liability: Duty to Warn 56-58
28
Products Liability and Comparative Negligence 59
29
Federal Preemption 60
30
Fraud/Misrepresentation 61-62