Erica Busch

Fall 2009
Torts
Kessler

GENERAL OVERVIEW:

Tort: there is no single definition of “tort”. (1) tort is civil wrong committed by one person
against another (2) torts can and usually do arise outside of any agreement between parties.

Kessler Tort: The kind of injury or harm for which the courts will order a remedy in a civil
proceeding at common law, not contract or criminal law.

Ladder of Abstraction: The law can be very generic and abstract. You apply the law by
climbing the ladder of abstraction (or you may want to reverse the ladder so things are more
abstract as you climb). Either way, you start with something that is more of an idea, and apply it
up the ladder until you can apply it to your particular set of circumstances. At the bottom of the
ladder, be very specific as to the facts of the case.

Ex. Only one Bessie the Cow. Going up the ladder of abstraction, things become more
generalized. Ex. Bessie--cow--livestock--depreciated asset.

General Points:

• To be guilty in a civil trial: P must prove; needs to prove by a “preponderance of the

evidence” (aka “more likely than not”); establish a Prima Facie case.

• If you have the facts, argue the facts. If you don’t have the facts, argue the law. If you
don’t have the facts or the law, argue the policy.

• Sufficient evidence is enough so that one reasonable juror could differ, this makes it
enough to go to court.

• Why use juries?

1. How do you know the judge isn’t biasly deciding?
a. Hates railroad, landlords, etc.
2. Opinion of the judge
a. Judge thinks that this isn’t a good case and there isn’t enough evidence then
dismisses it, in this case has been decided by the judge instead of the jury
3. Don’t have a mechanism for preventing certain cases from going to juries, the
defendants might lose because of the jury’s bias

• Some problems that aren’t justifiable

• Proof Problem
• Financial liability
• Don’t know what the right answer is

I. CAUSATION: CAUSE IN FACT: The claimed negligence must be the cause of the
injury.

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• Cause in Fact: P must prove by a preponderance of the evidence that D’s negligence was
the cause in fact of P’s injuries.

• Injury wouldn’t have happened at all “but for” the NEGLIGENT, wrongful, act of the D.

• Negligence + CIF=Liability

o D is only liable for those damages that were caused by his negligence. Defendant can
be held guilty if it appears that his conduct was the probable cause of the injury. This
is not an absolute burden, just more likely than not, absolute proof is not necessary.

o P must show that negligence was caused by a preponderance of the evidence. The
P must establish a reasonable causal link between defendant’s actions and plaintiff’s
injury. Proof is sufficient if reasonable men can differ, then it will go to the jury, and
this is half the battle for plaintiff’s attorney.

Cause in Fact:

o Defendant only liable if he caused the injury to the plaintiff.

o Defendant can be found liable if it appears that his conduct was the probable cause of
the injury.

o The burden is not absolute proof, only "more likely than not."

o Plaintiff must show evidence of negligence by a preponderance of the evidence.

o Plaintiff must establish a link from defendant's conduct to the harm suffered by the
plaintiff -cause in fact. (But for the D’s negligence the accident would not have occurred)

o Proof is sufficient to go to the jury if "reasonable jurors can differ" on the facts.

o Judge -order motion to dismiss if jury is left to speculate on the facts – guessing cannot
establish causation.

General Rules – Cause in Fact:

 If jury has to speculate then the evidence is insufficient. (Grimstad)

 If reasonable jurors can differ then the evidence is sufficient, and makes it to the jury.
(Kirincich)

 If the causation is sufficiently proven if the claimed negligence [naturally leading to the
occurrence] greatly increases the chances of the injury happening. (“Greatly multiplied” the
chance). (Reynolds)

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 If the injured party can testify it elevates a legal fact proof problem. (Reynolds)

 If there is another equal and probable explanation then the case can’t go to the jury because
it is too much speculation. (McInturff)

RULE OF LAW: If jury speculation is required to show but-for cause, P cannot meet the burden
of proof. Jury speculation as to the cause of an injury or death, absent any evidence, is not
sufficient to maintain a verdict in plaintiff’s favor. The jury is only allowed to determine the
facts. (CONJECTURE AND SPECULATION CANNOT ESTABLISH CAUSATION).

Grimstad:
F:Employee/Captain fell off barge owned by D. No lifesaving equip. was on board. Wife goes to
get rope from cabin, when she gets back he has drowned. Captain was the one who was
supposed to place the equipment. P couldn’t swim and he drowned.
Issue: Did trial court err in denying motion to dismiss?
P argues: D’s failure to provide adequate life saving equipment was CIF of death. Must prove
that D’s conduct was the probable cause of injury. (Preponderance of the evidence: More
likely than not).
D: Insufficient evidence of CIF. P failed to meet their burden, and reasonable men
cannot differ, when they can’t differ, no issue for jury. Don’t know where the equipment would
have been or if he would have even gotten to it since he could not swim. Move for a Directed
Verdict.
FYI: Jury could only speculate as to the location of life saving equipment if it had been on
board and whether even if it had been accessible if the decedent would have gotten to it. Juries
should decide should decide case based on facts. *No proof that if adequate equipment was on
board P would have even gotten to it b/c he couldn’t swim.
H- D wins a directed verdict. Evidence is insufficient when the jury has to speculate.
R- D is only liable for those damages that were caused by his negligence. P must establish a
reasonable causal link b/t D actions and P’s injury. The negligence case fails because of
insufficient evidence of proximate cause of defendant’s negligence. The lack of sufficient
emergency equipment did not cause the P to fall overboard and drown. Judges obligations to
protect D in motion to dismiss when P produces facts that will cause jury to speculate
– therefore motion to dismiss. P losses due to insufficient evidence.

RULE OF LAW: When a reasonable juror can differ (if one reasonable juror can rationally
believe what P has to prove than he differs) - that means it is not SPECULATIVE. If reasonable
jurors can differ then the evidence is sufficient, and makes it to the jury. If no, then directed
verdict for D.

Kirincich:
F: decedent (P) fell off dredge and was carried away by tide. Shipmate tried to save him, but
the ropes were not buoyant enough to save him (inadequate lifesaving equipment). P wins.
Issue: Did the lower court err in granting motion to dismiss?
P argue: Argues that inadequate lifesaving equipment failed to save him, it was thrown, it was
within inches of him and it wasn’t buoyant enough. Here, K was above water when rope was
thrown, and he could swim. An adequate floatation device would’ve dramatically helped save his
life. No speculation here. Distinguishing from Grim.
D argue: similar to Grimstad and we should also win. Cannot let jury speculate as to

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whether equipment would have saved him. No way of knowing if adequate floatation device was
on end of rope, and thrown to him if decedent would have actually reached it and therefore have
been saved.
H: Judge erred in granting motion to dismiss – If sufficient evidence is defined in this case
that one reasonable juror could believe that the inadequate lifesaving equipment caused his
death, it’s enough to go to the jury. If reasonable juror can differ on the facts then evidence
should make it to the jury to decide (but not if jury has to speculate).
P wins, jury thinks that adequate equipment would have saved him.

2 options in Cause in fact: Trial Judge decides if reasonable juror could decide if it is more
likely than not (like in Grim) inadequate life saving equipment was cause in fact of P drowning
(without speculation of facts). 1. If NO, (life saving equipment was not cause in fact) directed
verdict for D. 2. If Yes, case goes to jury for deciding.

Rule of Law: If facts or evidence presented, by expert testimony or otherwise, establish that
the defendant’s negligent act more likely than not caused the plaintiff’s injury, liability will
attach. (LIABILITY EXISTS WHEN THE DEFENDANT’S CONDUCT WAS MORE LIEKLY THAN NOT
THE CAUSE OF INJURY).

Zuchowitz: Dr instructed Ps decedent to take double the maximum dosage. She then got PPH
and died. To get to a jury all P needs to prove is: that a negligent act was wrongful because
that negligent act increased the chances that a particular type of accident would occur. Then P
needs to show that that result/accident did occur. D would then need to bring in evidence to
disprove this “but for” cause.
P: Negligence = prescribing an overdose of Danocrine to P was CIF of death.
⇒ Brings in expert testimony (in pulmonary diseases) to prove that the progression
and timing of P's overdose supported a finding of drug induced PPH to a reasonable
medical certainty (Expert testimony to show that the overdose caused the harm).
(aka negligence = why accident occurred and therefore death resulted).
D: Needs to bring in evidence to disprove this “but for” cause (aka didn’t prescribe it in that
dosage – or that Danocrine caused was CIF of death not just the overdose.
H: The court decided that when a negative side effect of a drug is demonstrated and the drug is
prescribed in an unapproved excessive dosage, a strong causal link to the harm has been
shown.
R: For LIABILITY to exist - it is necessary that the fact finder be able to conclude, more
likely than not, that the overdose was the CIF of P's illness and death.
The mere fact that the exposure to Danocrine caused is responsible for the disease does not
suffice proving that D was negligent in prescribing an over dose of Danocrine to P and was
therefore the CIF of death. When the defendant’s act increases the probability of an accident
and then the accident happens, the defendant must rebut the presumption of a causal
connection between the increased risk and the occurrence of the accident.
Incorrect to assume: Increasing the probability of an accident and the subsequent occurrence
of that accident is not equivalent to evidence of causation - P needs to prove that it was more
likely than not that the overdose was the CAUSE of Ps death.

Slip and Fall Cases:

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Rule of Law: Where the negligence of the defendant greatly multiplies the chance of an
accident to the plaintiff, and is a character naturally leading to its occurrence, the mere
possibility that it might have happened without the negligence is not sufficient to break the chain
of causation between the negligence and the injury, thus a reasonable juror would find but for
(negligence must have caused injury -more likely than not) the D’s negligence the P’s injury
would not have occurred.

Reynolds v. Texas and Pacific RR

F: Fat lady waiting for train. She leaves lighted waiting room to go to train. She trips and falls
down unlighted stairs while heading towards train platform. Witnesses say that they were told to
“hurry” etc. She “doesn’t know” what caused her to fall (by not knowing she evades contributory
negligence).
Plaintiff must prove “prima facie” case- a reasonable juror could find that the claim
more likely than not to be true.
Issue: Did court (JUDGE) err in denying motion to dismiss on the claim? Did inadequacy of light
cause the injury - cause Reynolds to fall?
P: Negligence (inadequate lighting) created the dangerous situation. Reasonable to think an
unlighted area “greatly multiplies” the chances for accident. Forced to stay in waiting room
by RR co. When left lighted area, forced to rush down the stairs to make train.
Q: Why didn’t P say what she fell on?
A: Could lead to contributory negligence. No explanation leaves her safe. By not knowing
she does know if something else did happen (that wasn’t her fault).
D argue: Motion to dismiss due to insufficient evidence of CIF. (With this motion, judge has
to assume what P and witnesses said as true). She doesn’t know what she slipped on. Could
have been her own feet. Being heavy, could have lost balance so CONTRIBUTORY negligence
possibility.
CASE –(D)Purely speculation to know what caused fall (Grim) People fall all the time in
lighted areas, let alone unlighted areas and (P) reasonable men could differ as to if light
would have prevented injury – the fact that there was no light greatly multiplies the chances of
the accident happening. (Kirincich).
H- the court rejected D’s argument that the act could have happened without negligence,
Plaintiff wins. Causation is sufficiently proven if the claimed negligence greatly multiplies the
chance of injury occurring. When one reasonable juror can find that P’s injury was the result
of inadequate lighting then it goes to the jury to decide. Also, Reynolds can testify that
nothing else contributed (she wasn’t pushed, etc.).
R- Where the negligence of the D greatly multiplies the chance of the accident (going
from lighted to unlighted) to the P, and is a character naturally leading to its occurrence (the
lighting led her to fall not that she got some disease), one can connect the accident with the
negligence. The mere possibility it may have happened w/out the negligence isn’t sufficient to
break the chain of causation between the negligence and the injury, thus a reasonable juror
would find “but for” the D’s negligence (not maintaining stairway and light), P’s injury would
not have occurred.

FYI: Here it went from lighted to unlighted area so fat lady could not re-focus. Just because
something could have still happened, doesn’t mean it should be neglected; consider the natural
and ordinary course of events, don’t suppose what if. Insufficient lighting (needed stationary
lights), several witnesses testified that they were told to “hurry up”; contribute to her falling by
not having enough light, significantly increases the chance of her falling; no speculation,
speculation going the other way (defense is asking for speculation, what if it was lit, what if she
had misstep anyways, etc.) *Reynolds expresses the legal factual point: which is that

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plaintiffs testify for you and that eliminates legal factual problems (unlike McInturff).

RULE OF LAW: Unless there is probable cause that an event caused an injury, a jury will not be
allowed to decide (judge must dismiss). To show mere possibility is not sufficient proof.
Evidence must show negligence greatly multiplied the chances of the accident occurring, but also
that other factors weren’t equally possible in causing injury.

McInturff v. Chicago:
F:decedent fell down stairway and was found dead at bottom. Stairs were shown to be worn, no
handrail and in violation of several safety codes. No eyewitnesses to accident.
P: The stairs were the cause in fact, had it not been for the stairs being worn and without a
handrail, decedent would not have fell. The worn down stairs greatly multiplied the chance
of the accident happening (Reynolds).
D: (distinguish Reynolds) In Reynolds, testimony of woman and witnesses erased speculation to
other causes. Here, decedent couldn’t tell us what caused injury (he is dead and no
witnesses), pure speculation. He could have been pushed, tripped etc... we don’t know!
Mere possibility does not provide causal connection b/c there are too many other possible
explanations.
H- Can’t just show that negligence of maintaining stairwells greatly multiplied the chances the
accident would happen, but P must show that no other factor could have caused the accident
and that the negligence more likely than not was the CIF of the accident. Too much speculation
about facts (insufficient evidence) to go to jury.
R- (Jury) Cannot assess damage on conjecture (guess)/speculation as to what probably caused
the death (Grim). *Insufficient proof due to the possibility of a third party. Evidence
must show negligence greatly multiplied the chances of the accident occurring, but
also that other factors weren't equally possible in causing injury. Reynolds and witnesses
were able to say what it was not (b/c she said she did not know what it was that caused her to
fall but she could eliminate possibilities like being pushed) whereas this guy is dead and there
are no witnesses to testify. Insufficient evidence leads to too much speculation to go to the jury.
Judge must issue direct verdict for D – motion to dismiss.

Joint and Several Liability – Burden Shifting

Traditional approach – joint and several liability - If more than one person is a proximate
cause of Ps harm and the harm is indivisible, under the traditional approach each D is liable for
the entire harm. The liability is said to be “joint and several”.

Modern approach – tends to cut back on joint and several liability but there has been a very
sharp trend in recent decades to cut back, or completely eliminate joint and several liability. This
has been mainly due to the rise of comparative negligence as a replacement for contributory
negligence.

• Joint Liability: Each of the several D is responsible for the entire loss which they all caused
in part.

• Several Liability: Each D is responsible only for his proportionate share of the loss.

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• Joint and several liability: if more than one person is a proximate cause of Ps harm, and
the harm is indivisible, each D is liable for the entire harm, although P can only recover from
one D.

Joint Tortfeasors

 Cannot be a joint tortfeasor with God (Dam Hypo & Kingston)

 Plaintiff may be able to recover some damages under the loss chance doctrine if they could
show that it would have happened slower and they could have recovered some of their
property, etc. (Dam Hypo 2)

 Burden of proof in “joint tortfeasor with God” is on the defendant to show that the other
cause was nature. (Kingston)

 Alternative Liability / Burden Switching

Where 1) P is innocent can show 2) that both people were negligent, and 3) only one person
could have caused the injury, the burden of proof will shift to D’s to show that they did not do
it. If they can’t, then they both will be held liable. (Summers v. Tice)

 When the defendant is negligent and it stops the plaintiff from proving causation, then the
burden is switched to the defendant to show that his negligent actions didn’t make a
difference. (Lone Palm Hotel)

 Market Share Liability

To prove market liability 1) Need all potential tortfeasors; 2) fungible product (must all have
same defective qualities; 3) can’t identify who caused the injury through no fault of the
plaintiff; 4) all the manufactures that created the defective product during the relevant time
are named defendants. (DES case, didn’t work on Lead Paint)

Pequa Dam Hypo

F:There’s a dam, doesn’t break but there’s a big flood. (Wickets, drains at the top of the dam,
goes down off the sides instead of the top of the dam). Wickets were negligently maintained and
got stuffed, flood level gets to be 15 feet above the level of the dam. P’s property is destroyed
when water get 15 feet over dam. Downstream homeowners sued claiming the negligence
caused the injuries
P: Negligence caused the flood. D should have cleaned the wickets
D: Motion to dismiss. Would have happened regardless of wickets anyways. Lack of causation
that wickets caused the damage, act of nature caused this to happen. Even if the wickets would
have worked there STILL would have been an overflow of the dam. Blame God.
H: Cannot be a joint tortfeasor with God. D, the negligent party, is NOT liable for damages
which would have occurred even without their actions. (even if 2 causes and 1 is nature, then
the human cannot be held responsible if in combo with nature, D won’t be financially
responsible)

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P losses because can’t be a joint tortfeasor with God.

Pequa Dam Hypo 2

F: Change hypo to valuable collectibles: Timing issue. With more time, could have saved
valuable collectibles.
P: Injury is now the inability to get collectibles to safety. If wickets worked, there would have
been enough time to save the collectibles.
D: Same case as before: Lack of causation that wickets caused the injury. Act of nature caused
this. Even if wickets worked, there would have still been overflow. Blame G-d.
H: P has to do all that he can to get as many valuables to safety as he can- P cannot just let
everything go to waste because D is negligent. D is fully at fault here if P did all that he could
but still lost a lot of valuables as a result of the time lost by D not cleaning out the wickets. P
would be contributorily negligent if he lets everything go to waste because of Ds negligence. (In
this case, if there had been warning of time so that the people could get out. If wickets hadn’t
been stuff, it would have taken longer for the water to go over the dam, giving them more time
to get out or get valuables in the house out.)
P could win if it can be shown that he tried to get his valuables out and that more time
would have saved more of the valuables.

Rule of Law: When one of two joint tortfeasors is unknown, the other is fully liable. Joint
wrongdoers have the burden of proving which caused the injury or both are liable. If D can
prove that the other tortfeasor was equal PC of damage/injury and was an act of nature – he
avoids liability because damages would have occurred without his negligent action.

Kingston v. Chicago
F: Two fires destroy P’s property. One was set by D’s locomotive sparks that set a fire and one
was almost certainly caused by a third person. Each fire individually would have caused the
damage, and both were PC to the P’s property destruction.
P: Don’t know what caused the other fire, but it is expected to have been a human cause. D who
caused one fire shouldn’t be allowed to avoid liability (Pequa -joint tortfeasor with God), D has
burden to prove the other fire was caused by nature.

D: Says that the other fire could have been caused by nature and he shouldn’t be responsible
(joint tortfeasor with God means D is not liable for damages)
H: Distinguished Pequa saying that it doesn’t apply because do not know what caused the other
fire and are not going to speculate, the burden of proof is on the D to show what caused the
other fire, this is an issue of proof (like an affirmative defense). If you cannot tell who started
the other fire, D has to reasonably prove it was natural causes. Burden shifts from P to D to
prove who actually caused the fire. If that cannot be done, the D loses.
R:Whether a defendant is liable for damages when an unknown third party has acted
simultaneous, independent, and is an equal proximate cause burden of proof is on the defendant
to show that the other cause was nature. If D cannot prove the origin of the other fire then D is
responsible for the entirety of the damages. P wins because D cannot prove (aff’m
defense) that the other fire was caused by nature, jury would have to speculate
[Policy: wrong doers shouldn’t escape liability while P suffers]

Glass Panel Hypo: P walked into store. Under door, glass pane breaks and glass falls on head
causing injury. He then gets malignancy tumor on head and sues for pain and suffering on head

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because he developed CANCER.
P: Your negligence in maintaining glass above door is CIF of me developing cancer.
D: Motion to dismiss (summary judgment). Insufficiency of evidence to prove glass
negligence is the CIF of your cancer. P has failed to present prima facie case. Speculation and
conjecture. Willing to pay for injury of cuts to the head, but pure speculation (Grim) to think cuts
caused cancer. Glass falling on your head is not the PC of your injury. No expert testimony
either to prove causal link that accident could have caused cancer – no credibility.
H- Mere possibility is not sufficient proof. Not enough to prove CIF. Unless there is probable
cause that an event caused an injury, a jury will not be allowed to decide. To show mere
possibility is not sufficient proof. Must rule out other possibilities.

Glass Panel HYPO 2: same facts but P brings in an expert to testify.

P: expert testimony proving causal link and that injury was CIF of cancer developing.
D: accident not CIF of cancer. (should bring in expert also)
H: If P brings in expert testimony then the case cannot go to summary judgment and now there
is a case and D has to prove why the trauma injury did not cause the P to develop cancer.
Reasonable jurors can differ because of expert testimony proving P’s case and expert testimony
proving D’s case and therefore witness credibility comes into play and evidence is sufficient to
make it to the jury.

Dr. Ewing Hypo Woman gets hit in the breast. She is hurt, but later also develops breast
cancer. She sues. P has Dr. Ewing that will testify cancer is possible when you hit someone in
specific area of the breast. D has 4 well respected doctors testify that Dr. Ewing’s idea is
ridiculous.
D- *(summary judgment – motion to dismiss if P did not bring in expert but P did) P
has failed to present prima facia case, like above hypo. Speculation and conjecture. Cannot
have jury speculate. Here, it is one Dr. against 4 doctor’s opinions, so P’s evidence is
insufficient.
Ct -W/directed verdict, look at P evidence. If experts could differ on the facts, so could
the jury. Jury can assess the credibility of the witnesses and reasonably make a decision— not
as speculative when there is a EXPERT testimony.
Policy: The policy behind a decision is key. Look at different contexts for the purpose of the rule
and how to best interpret it.
Grimstad Policy: Jury to make inference on stipulated facts.
Kircinich: If one juror can reasonably differ on facts than it should go to jury.
Ewing: Does the same, but also must determine which witness is more credible.

Haft v. Lone Palm Hotel:

F: Boy and dad found dead at the bottom of a motel swimming pool, no sign warning that there
was no lifeguard.
P: Sues says they were negligent for not having a lifeguard.
D: Says that they didn’t have to have a lifeguard, statute only required hotel to have a sign – so
they were negligent not having a sign.
P: You’re liable because you should have had a sign - they violated statute and that greatly
multiplies the chance of drowning.
D: Motion to dismiss. No reasonable juror could do anything but speculate about whether sign
would have made any difference. There’s no causal link between not having a sign and them
drowning. Sign did not provide any information that adult would not have already known, adult
could have seen that there was no lifeguard on duty, and therefore the sign would have told him
something he ALREADY knew. Lack of sign was not CIF of death. (Its now like Grimstad).

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H: This defense is 100% true but it leads to a bad result: the hotel owner would get off even
though they violated both elements of the statute. A stupid statute like this gets passed because
there are poor hotel owners who cannot afford lifeguards. The court held that the legislature had
the statute for a reason (can’t analyze legislative intent) and this puts the assumption that the
sign would have made a difference. There must be an incentive to provide a sign (or no one
would follow rule). This is a policy argument that shifts the burden to the D – b/c hotel is
negligent by not having lifeguard AND not having a sign (Summers) to prove that the lack of a
sign didn’t change anything, and was therefore not the CIF of death. P was deprived of a witness
because of the lack of a lifeguard.
R: Lack of lifeguard caused drowning. Not sure whether sign caused drowning. How do we deal
with fact that we know sign was not cause? We cannot hold that signs don’t make a difference
because CA legislature says that they do. Signs must have reasonable chance of making a
difference. Not impossible that D would win. D must prove that sign didn’t make a difference,
not automatically assume that sign provided useless info b/c it could have made the adult
reinforce what adult already knew by being reminded by the sign.
Policy: we do not want D, the negligent party, getting away with this because P has no info.
P wins because D cannot prove that the lack of a sign was not the cause (switching the
burden is how courts deal with a situation that is unfair to P).

Alternative Liability – Multiple Tortfeasors (Burden of Proof exception)

The general rule for CIF is that by a preponderance of the evidence, don’t use purely statistics
alone and there must be individuating evidence (people are treated as individuals). Burden on P
to prove.

EXCEPTIONS to CIF: Summers: alternative liability; & Sindell: MSL (allows for some
recovery); chance interest medical survival cases.

Joint liability imposed on multiple tortfeasors when there are simultaneous tortious acts and
uncertainty as to which act was the proximate cause of an injury.

Alternative Liability - Rule of Law: P is innocent if he can show

1) that both people were negligent (both identical tortfeasors acting negligent), and

2) only one person (out of 2) could have caused the injury, the burden of proof will shift to
D’s to show that they did not do it.

If Ds’ can’t prove their innocence, then they both will be held liable. Once the above conditions
are met, the burden of proof shifts to the D and they will be held jointly and severally liable.
*Nature of injury prevents P from knowing who caused the injury. Ds’ are in a far better position
to offer evidence to say who caused the injury and who did not.

Summers v. Tice
F: P gets shot in the eye when two of his hunting buddies fire negligently in his direction. Both
shots came from the same gun, but don’t know which person the shot came from.
P: Not fair for the plaintiff to lose because he did nothing wrong, he was not negligent and he
should not bear the burden of figuring out who shot the gun. There was no sufficient evidence to

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prove which D was guilty and CIF of injury. (Cite Kingston Policy reason – P shouldn’t suffer and
not get damages b/c of Ds’ negligence but different b/c Ds’ were independent tortfeasors – it
was either one or the other that shot the P). Both fired negligently, were simultaneous actors,
and prevent the plaintiff from identifying who did in fact shoot her. D is in the better position to
know who did it.
D: both will say “it wasn’t me” and why should I have to bear any liability. Insufficient evidence,
each D will say that he didn’t do it and both will get off.
H: Burden of proof shifts to each D to prove innocence. Their negligence was the CIF and
the burden should rest with each to prove their own innocence, they are joint tortfeasors. D is
responsible for the plight of the defendant (not being able to prove it). Both liable unless they
can prove the other person did it.
R: When the appropriate situation arises as a matter of fact (identical aspects) the judge can
charge the jury that the defendants should prove that they didn’t do it, because the plaintiff’s
proof is going to be sufficient to get to the jury (it could have only been one D or the other –
each D 50% chance of causing injury).

Market Share Liability (burden of proof exception also):

Market share liability (based on a national market) – P has to show:

Market Share Liability Rule of Law:

1. All Ds are potential tortfeasors.

2. Allegedly harmful products are identical (fungible) and share same defective
qualities.
3. P unable to identify specific D that caused injury through no fault of her (P) own.
2. Ds represent a "substantial share" of the manufacturers who produced the fungible
product during the relevant time period are named as defendants in the action

If these requirements are met, a rebuttable presumption arises in favor of the plaintiff, and a
court may order each defendant to pay damages equal to its share of the market for the
product at the time the product was used.

A manufacturer may rebut the presumption and reduce its market share damages to zero by
showing that its product could not have possibly injured the plaintiff (for example, by
demonstrating that it did not manufacture the product during the time period relevant for
that particular plaintiff).

General Rule for Market Share Liablity: If P cannot prove which of three or more person
caused his injury, but can show that all produced a defective, fungible product, the court
will require each of the Ds to pay that percentage of Ps injuries that Ds sales bore to the
total market sales of that type of product at the time of injury unless D can exculpate
themselves.

OTHER RULES ON MARKET SHARE:

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 ⇒ In market share theory: courts are split on whether each D should be allowed to exculpate
itself by showing that it did not make the particular items in question – some more modern
cases hold that once a given D is shown to have produced drugs for the national market, no
exculpation will be allowed.

⇒ Courts adopting the “market share” approach often reject joint and several liability – they
allow P to collect from any D only Ds proportionate share of the harm caused. For example,
had P sued a single D and showed that D accounted for 10% of the market. If court goes by
market share approach and D is found to be negligent, P only gets 10% and D cannot take
the full 100% hit for the industry.

⇒ If the product is found to be socially valuable, such as a vaccine, courts will likely not
apply the market share approach.

DES Cases -Sindell v. Abbott Laboratories

F: DES crossed the placenta barrier making kids in the womb exposed get cancer years later
(sometimes 20+ years). Traced to DES – mothers took during pregnancy to prevent miscarriage.
200+ DES manufacturers.
P: D’s are jointly liable for injuries the drugs caused to unborn fetuses who eventually developed
cancer - because they acted in concert – sold a fungible product and collaborated in marketing
and testing DES. Simultaneously conduct and fungible drug + the many years that had passed
made it impossible for Ps to identify which D had caused the actual harm. P shouldn’t have to
suffer because of D’s negligence (and regardless of which D it was they were all jointly and
severally negligent).
D: Says that it could be any manufacturer – 200+ DES manufacturers at that time. H: any
manufacturer who cannot show that it could not have produced the particular doses taken by Ps
mother will be liable for the proportion of any judgment represented by that manufacturer’s
share of the overall DES market. Burden is on D.
R: Court cited Summers as precedent, this was negligent conduct, done simultaneously, and
cannot tell who did it because of the simultaneous conduct. Can get all of the major parties in
the suit and all of the drugs had the same strength, etc. They were not distinguishable from one
another. Court developed market share liability – shifts burden of proof onto D - Must be: 1. The
allegedly harmful products were identical and share the same defective qualities (or were
“fungible” [interchangeable]) 2. The plaintiff is unable to identify which defendant caused her
injury through no fault of her own 3.Substantially all of the manufacturers which created the
defective products during the relevant time are named defendants (substantial share of market
at that time).
P Wins because it is like Summers and had simultaneous conduct and D has the
burden of proof.

Lead Paint Cases -Skipworth v. Lead Industries Association

F: Kid gets lead poisoning several times in the same apartment, has to be hospitalized. House
built in 1870, several layers of paint, many manufacturers in the market, don’t know which
manufacturer, some have gone out of business.
P: First says its market share liability, just like the DES (Sindell), don’t know who did it. Second
says, alternative liability (Summers). Third says, conspiracy and concert of actions.
D: First, says its not market share liability because the products are not identical (some are
more easily ingested and some have different quantities of lead), and all the manufacturers are
not listed because it’s a 100+ year span and some have gone out of business, some have

12
moved, etc (DES was a 9 month span), and therefore would hold some manufacturers liable that
couldn’t be liable.
Second, not alternative liability because not simultaneous in producing and all entities have not
been joined over the time period, all potential tortfeasors not named. Third, not concert and
conspiracy of actions because there is no evidence of acting in concert and failure of the P to
demonstrate malice on the part of D.
H: No market share liability (products not identical, all manufacturers not listed), no alternative
liability (not simultaneous in production and all potential tortfeasors not named) and not
conspiracy (no evidence of malice or acting in concert).
P losses because too long a time span, not all defendants named and different
concentrations in the product (not identical).

Contribution and Tortfeasors

Gangrene Hypo
F:D1 negligently breaks Ps arm. D2 negligently sets the arm, leading to gangrene and then
amputation. D1 is liable for all harm, including amputation (as he is but for and proximate case).
D2 is only liable for the amount in which his negligence worsened the condition – the difference
between a broken and amputated arm.
Contribution: D sues a tortfeasor to get the other liable D to pay his share of the total damage
(see Dole later on also).
H: a court holds that two D1 and D2 are jointly and severally liable to P for $1 million. P collects
the full $1 million from D1. D1 may recover $500,000 from D2. If two Ds are jointly and
severally liable, and one D pays more than his pro rata share, he may usually obtain partial
reimbursement from other D (Contribution). Each D in the end would have paid an equal
share. This also works in comparative negligence case: if D1 was liable to P for 2/3 and D2 was
liable for a third in the same case for $1 million. If D1 pays it all, he can collect $333,000 from
D2.

Dole v. Dow Chemical Dole dies in chemical accident on the job. P sues manufacturer of
chemicals b/c can't sue employer due to Workman's comp. rules. Manufacturer impleads
employer for not following their instructions.
H: Jury finds Employer 90% and manufacturer 10%. P collects the whole thing from
manufacturer, who then collects from employer. Look at it as a huge pot- manufacturer puts in
100% of the total money and then collects 90% of it from employer - P takes all 100% because
he found an end around loophole.
Significance: P provided with an end around the Workman's comp. rule. D's are
Severally liable so D's fight among each other to see who is more liable- in this case employer
was 90%. Sure beats getting shitty money from the workman’s compensation act.

Limits to contribution:
1) an intentional tortfeasor may not get contribution from his co-tortfeasors (even if they too
behaved intentionally).
2) The contribution D (that is, the co-tortfeasor who is being sued for contribution) must in fact
be liable (example would be husband driving negligently with his wife as a passenger who then
crashes with a negligent D – If wife gets full verdict from D then D may not recover from
husband (the joint tortfeasor) since intra-family immunity would prevent wife to recover from
husband directly, therefore D cannot get around that).

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What if one D settles?
⇒ If D settles, he may generally obtain contribution from other potential D’s (he has
to prove their liability)
⇒ Where D1 settles, and D2 (later gets a judgment) sue D1 for contribution the courts
are split:
1) Traditional approach: D1, the settling D, is liable for contribution (probably the
majority view).
2) “Reduction of P’s claim rule – rejects contribution, but reduces P’s claim against D2
pro rata (so D2 comes out the same as with contribution)
3) “No contribution rule:” you guessed it; D1 is not liable for contribution. This is
popular as it gives Ds strong incentive to settle.

Indemnity case: one of several (in the tort context) wrongdoers cannot recover against
another wrongdoer. When two parties act together, the party held responsible for the act cannot
have indemnity (or a 100% shift of liability to the second D) from the other because both are
equally culpable and damage results from their joint offense. The act is what is wrong for the
first wrongdoer and the other is liable for failing to discover or correct the defect. Basically,
concurrent tortfeasors are liable for the whole of an injury whenever negligence is a proximate
cause of the injury.

Loss Chance Doctrine

Doctrine of Loss Chance – Rule of Law:

In loss chance whoever has the burden of proof will lose the case. Plaintiff has relaxed
causation, only has to prove the percentage loss.

Most jurisdictions have not adopted the loss of chance rule. NY HAS.
• Doesn’t solve the issue of how much the injury is worth
• Chance of life is not worth anything unless you survive
• If you survive the chance is worth the full cost of life
• Can’t tell who would have survived
• Loss of chance isn’t compensable whether you live or die
• Some people who would have survived should get 100% and some other people get 40% and
they would have died anyways
• Some jurisdictions have adopted loss of chance (like NY) leave it up to the jury and
let them decide how much its worth
• Some jurisdictions have adopted the loss of chance and then just break it out by percentage
• Over compensate the people who choose to sue
• Not a rational solution
o It’s a way of satisfying the “perceived sense of unfairness”
• HAS NOT BEEN ADOPTED BY MAJORITY OF STATES
• Not been applied to other kinds of liability only medical malpractice situations
• Too dangerous - find Ds conduct created it MUCH MORE LIKELY and then therefore it would
entirely change our nature of compensating risks

Hobson’s choice -choice between two bad things

• This happens a lot in law
• Lots of cases that are largely intractable
o No matter what rule you make, some people will be treated unfairly by the rule
o Hope to protect the most number of people

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 o Badly treat someone who is undeserving, and protect someone who deserves
protection

Cause in Fact – Medical Cases:

Importance of Loss of a Chance:

NJ/NY -failure to diagnose cancer cases, decided that if the failure to diagnose increased the risk
of a bad result and the jury finds that risk was a substantial factor in bringing about the result,
the plaintiff has met his proximate cause burden.

Herskovits v. Group Health Cooperative

F: P went to hospital and they didn’t diagnosis the cancer. Thus the delay in diagnosis may have
reduced his 5-year chance of survival by 14% (from 39% (at stage 1) to 25% (at stage 2)). He
had less than a 50% chance of survival even on his first visit (39%-25%)
P: D’s negligence (in not diagnosing in time) greatly multiplies the chance of an injury occurring
because failure to detect cancer at the earliest stage clearly increases the chance of dying from
cancer (Reynolds). Deprived of a significant chance to recover. Need a legal incentive for due
care. Must be liable for loss of chance.
D: Must show that he “probably” would have survived had it not been for the misdiagnosis (need
51%). Economic rationale -Don’t compensate for people who would have died anyways. More
likely than not he would have died anyways.
H: Allow the testimony of the expert on the loss of chance to go to the jury. To decide otherwise
would allow a blanket release from harm anytime the survival chance was less than 51%
(POLICY). Courts main reasoning is not economic – the reason is standard of care for people
with less than 50% chance of survival – if doctors thought they could get out of negligence cases
if the patient didn’t have 51%+ chance of survival, there would be no incentive to “do their
best”. P can only recover for the damages attributed to the premature death (loss of earnings,
medical expenses, etc.)
P wins, is allowed to go to the jury on expert testimony of loss of life, but can only
recover on the loss of life. Doesn’t need to show a 51% chance of surviving.
R-P didn’t need to show 51% chance of survival for hospital to be negligent. P lost 14% of his
life b/c of the negligent act of D, so award 14% for premature death. [loss of chance
doctrine]: otherwise doctor’s would have no reason to be careful when P has less than 50%
chance of survival]. Relaxed Causation: Only have to prove part, not the whole thing. So P
will get percentage.
FYI: Causing reduction of the opportunity to recover (Loss of Chance) by one's negligence -
however does not necessitate a total recovery against the negligent party for all damages
caused by the victim's death, but rather a percentage caused by premature death.

Typhoid Hypo (more increase of chance, than lost chance)

F: Sewer break in a sewer line, private sewer line. Gets into the public water. In Buffalo. 150
people got typhoid on average a year. 275 people get it the next year (after the leak). 55% of
the injuries were naturally occurring (150/275), 45% of the injuries were due to the sewer line
breaking (125/275), 80% increase attributed to the sewer break Issue is causation.
⇒ For LIABILITY to exist - it is necessary that the fact finder be able to conclude, more
probably than not, that the contamination was the cause of P's illness and death. The
mere fact that the exposure to contamination caused is responsible for the disease/death
does not suffice proving that D was negligent
⇒ When the defendant’s act increases the probability of an accident and then the
accident happens, the defendant must rebut the presumption of a causal connection

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 between the increased risk and the occurrence of the accident.
P: Ignores the data (b/c it is not more probably than not). Policy argument comes from
Herskovits, don’t allow them to get away with contaminating the water (In the stairs and
drowning cases, there was no percentage). Ds negligence greatly multiplied the chance of people
getting typhoid and more people did get it (stats prove it). Natural consequence of this
negligence (natural and probable consequence) Apply Reynolds – if reasonable juror could differ
on facts then enough to bring it to the jury). 80% increase is enormous, increase of probability.
Have violation of standard of care – CIF of increase in injuries.
D: Could say that when there are two equally probable causes then the jury would have to
speculate. It is more likely than not that the outbreak was not the CIF of the Ps injuries bc less
than half (45%) of injuries were a result of outbreak. Not equally likely because it didn’t double.
Less likely that the P is part of the typhus causing group. Less likely than not that they are in the
typhus causing group.
H: If the burden of proof is switched, the defendant would win. If the plaintiff has to prove, then
he loses. Depends on who has the burden of proof, if P has it he loses, if D has it he
loses.

Makeup Artist Hypo

F: 19th century, a woman paid a “makeover artist” and he guaranteed that she would be a
finalist in the beauty contest; she sues him for breach of contract. 5 finalists, winner gets 1000
pounds
P: Not fair, he took the money and didn’t do anything. She didn’t get her 20% chance worth
200 lbs.
D: Insufficient evidence to prove causation of injury. Injury is not getting the money. Can’t
prove that the breach of the contest because she didn’t win the money. Being a finalist isn’t
worth anything, only had a 20% chance of winning, less likely than not that his breach caused
him not to get the money. More likely than not needs to be 51%
H: Court gave her the 20% chance, and awarded her 20% of the winnings.

II. NEGLIGENCE

Negligence Question: Would a reasonable person have foreseen a risk of injury?

Generally: the tort of “negligence” occurs when Ds conduct imposes an unreasonable risk
upon another, which results in an injury to that other, thus causing a breach of that duty. The
negligent tortfeasor’s mental state is irrelevant (all that matter is the reasonable person)!

Prima facie case of negligence: Ps case. 4 elements of Negligence -

1. Duty: Did D owe the P a duty to conform his conduct to a standard necessary to avoid an
unreasonable risk of harm to others? D has an obligation to conduct himself according to a
standard, so as to avoid against an unreasonable risk of injury to others.
2. Breach of Duty: did the D's conduct, whether by way of act or omission, fall below the
applicable standard of reasonable care?
3. Causation - CIF/PC: Was D’s failure to meet the applicable standard of care causally
connected to P’s harm?
4. Damages/Injury: Actual damage was suffered by P.

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3 Defenses to Negligence:
1. Contributory Negligence- any amount of fault on part of P that causes the P’s own
injury will cut off his right to recover against the D.
2. Comparative Negligence- recovery for the P is equal to the amount of damages he
suffers minus those damages attributable to him or in essence the amount of his fault
causing the relationship. Here the P will recover the percentage to which he did not
contribute.
3. Assumption of Risk- P recovery is cut off entirely if he voluntarily encountered a known
risk.

Burden of Proof: In a negligence case (as in almost all tort cases) P bears the burden of the
proof.

Negligence

Four Elements of Negligence: 1. Duty, 2. Breach, 3. Cause, 4. Injury. Breach of your duty or
violation of standard care that causes injury

Must be reasonably foreseeable that the injury would occur (Blyth Water Works case)

Hand Formula: B <= PxL (then there’s liability, Burden (B) < Probability (P) x Severity of
Injury (L)

If the burden of doing something differently is small but it creates unreasonable risk to more
people (general population) then there obligation to do it differently. [Can create reasonable
risks if it prevents greater harm.] (Cooley)

Specifically unforeseeable harm, but generally foreseeable. (Chicken Hawks)

If the probability of harm (foreseeability) is extremely low but the severity is extremely high, it
is likely to outweigh the burden. (Chicken Hawks)

A person in an emergency situation is treated as a reasonable person in the face of an

emergency, the emergency must be considered. (Lyons and Eckert)

Ignorance isn’t a factor that is taken into consideration when deciding if someone acting like a
reasonable person. (Menlove).

Ignorance of a local standard is excused for non-locals, reasonable non-local wouldn’t be

expected to know the standard. (Fog horn hypo)

Reasonable beginners are held to the standard of what a reasonable beginner knows or should
know. (Brake/Clutch Hypo)

Newly licensed drivers are held to the standard of licensed drivers, not newly licensed drivers.

Experience doesn’t increase the duty of the standard of care. (Race car driver)

Child Standard:
Reasonable child is held to the standard of a reasonably careful child of the same age,
intelligence and experience. (Child Standard)

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Minor engaged in an adult activity is held to the adult standard. (Daniels – 19 year old on
motorcycle/ lawn mower). Some jurisdictions apply this to only licensed activities. Some apply it
to unreasonably dangerous activities.

Crazy person is required to act like a reasonable person who is not crazy. Policy argument on
insane people is that the innocent sane person should not bear the cost of the injury from the
insane person (encourages people to take care of the insane person). (Breuning)

A drunk people must act like a reasonable sober person.

Theory of Limited Duty:

Many different ways to look at it: What way determines what is fair?

Injury lies where it falls: whoever got injured should pay for their own injuries.

Reciprocal Risks: Can't live in a society that derives benefits without imposing some risks.
People are able to do deeds that can cause injury b/c some benefits cause risks for the common
good. Recreational acts such as Golf is a benefit we are willing to give people if that means a car
might get hit every now and then. After all, it is not foreseeable that his golf ball will hook and
then hit the car.

Torts involve Negligence and Intent:

Negligence imposes liability b/c D did something wrong and was CIF.

BUT, if injury occurs from Natural and Foreseeable Consequence of conduct, that cannot
be avoided by conduct (hitting tennis ball), you are permitted to do the act.

Balance: Want to protect society by people being careful. Impose obligation to think ahead
when carelessness will cause injury. Deterrent effect for D's in the future.

How much foresight is Calc. of Risk.

1st – is there a risk of injury

2nd – was the chance of injury excessive or not?

People can be negligent in a variety of ways at the same time

• Can be going 65 in a 55 and that’s speeding
• Can be driving with you knees (not properly handling the car)
• Looking at the map (failing to keep a proper lookout)
• It’s the claimed negligence that we need to look at aka what the P is claiming...

Rinaldo v. McGovern: Ps car was damaged when D's golf ball left the course and fell on the
windshield of P's car, which was driving on a nearby road.
H: D is not liable. D was not exposing public to an unreasonable amount of risk. Nor was Ds
behavior unreasonable. His actions were reasonable and injury was unavoidable.

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NEGLIGENCE – CALCULUS OF RISK:

Defined: Test requires a "balancing of interests" to determine whether risks taken by D are
justified.
P argues that D is negligent because: Some inexpensive precaution (railing, warning) could
have prevented a serious injury that was likely to occur.
Ds rationale for not taking precautions: The precaution was excessively costly, redundant,
ineffective or counterproductive.

Third Restatement §9: it’s a specific factor that the jury can consider in how a
reasonable person would act (in an emergency)
• Person would act reasonably based on the circumstances
• Need to take the emergency into account

Driving on Meadow Brook Hypo

F: Driving on the Meadow Brook going 55 mph, tire blows out and get in an accident
P: Will have to prove that the driver breached his duty (Duty is to take reasonable care to
prohibit or prevent creating unreasonable risks of injury)
D: Could argue reciprocal risk (Create risk to each other). Creating a whole possibility by driving
P: Trying to dump on someone else the expenses that are foreseeably created by driving

Blyth v. Birmingham Water Works

F: Blyth was exposed to a risk of the pipes breaking and water leaking into his house. Predicted
life of the system is 25 years. It was the most severe frost on record.
P: It was reasonably foreseeable that the pipes were burst and D had a duty to ensure that the
pipes were maintained, company did not use proper care to prevent the accident because they
did not remove ice from plug.
D: The frost was not reasonably foreseeable – most severe frost on record.
H: The court held that the D was not responsible because no reasonable person could have
foreseen the frost would occur.
P losses, not reasonable foreseeable.

Blyth v. Birmingham Water Works 2

F: Forget about the valve, dug system and put it 2 ½ feet in the ground. Ground froze to three
feet down.
H: Doesn’t change the case because the frost was still not foreseeable.

Blyth v. Birmingham Water Works 3

F: Now add another fact, and does this make a difference. Pipes were put in 1875, now weather
forecasting comes in and there frost is usually 2 ½ feet there’s a 100 year frost and it would be
3 feet. 100 year frost means once in 100 years there would supposedly be an unexpected very
cold winter, doesn’t mean that it will happen every year. Could come 2 years in a row and then
not come for 200 years.
H: This makes it more foreseeable because you do not know when the frost will come, it doesn’t
come every 100 years on the dot. It is foreseeable that the frost will come during the life
expectancy of the pipes. D must weigh the risks. Could use hand formula: Burden (Construction
Costs) </> PL (probability of event occurring and loss – predicted severity of injury -chance of
pipes bursting) – see hand formula below 

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In Blyth the Burden is the cost of the labor to put the pipes half a foot deeper. The Probability is
1/100 (of the 100 year frost occurring). Potential Liabilities (If there’s a fire you won’t be able to
put it out, Damage to houses, Potential illness and death) and there are many more liabilities.
The foreseeable risk here is vast greater bc there is no water supply if they have to re-dig pipes
or TAKE longer it may cause fire…illness etc something.

HAND FORMULA

According to Holmes, negligence has a underlying moral standard, the standard has a deterrent
effect by identifying specific conduct that is wrong

What people should think about before they do stuff (duty – not to be negligent)

1. Analyze how likely it is that people will be injured – probability that your conduct will cause
injury...

2. How serious is the injury that you think is probable...

3. How burdensome would it be to avoid creating that probability of injury?

Why should an individual pay for cost of an injury that resulted from a financial based
individual or corporation activity that is done in an effort to make/save money instead
of prevent (possibly foreseeable) injury?

⇒ They take risk of being injured b/c company is doing something to benefit community

Public water supply case: good to look at: By externalizing some for the injuries that
are created as result of this business activity we are stimulating the activity Basis of
inviting liability:

o We need this company bc it benefits society. We don't want companies to spend so much
more money to reduce risk of injury (inflationary prices) than society is saving. If they
spend too much = social cost - raising cost of goods and services.
o If money in the company = money in their pocket to continue to "benefit society"
o "Injury causation cost tax" - the money they spend raises prices

HAND goes to the next level : rationalizes -

o Identifies point that company's liability ceases at point of diminishing return:

Can apply the Hand formula Burden (B) < Probability (P) x Injury (L)

• B = burden of adequate precautions against the accident=cost of prevention.

• P = probability of event occurring
• L = loss, the gravity of the resulting injury,(severity) evaluate the situation as reasonably
foreseen and knowable.
⇒ predicted severity of the injury (not the actual injury)
• Not retroactively, at the time you did it
• Burden of avoiding the foreseeable injury
• When you look at the injury: Probability of it occurring and the severity

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 • B < PL = Liability exists.

• Translates issue into $$$. Because Burden is low for D to take simple easy precautions-
lower than the probability x the loss: D should have taken reasonable uncostly
precautions because it burdens them very little anyway to take that better or reasonable
care.

• B > PL= No liability. Burden of safety was too large to impose.

• B= PL = No Liability. Burden was too much to take precautions.

BPL ANALYSIS: Jury decides after what companies should have done before the act.

Before: Company is calc./estimating the future (Foreseeability) and how much of a B it is.

After: Jury must decide if company acted carefully. Look @ time before act, Benefits P
greatly

BPL is a two tiered approach:

Does D have a duty to P?

If No, then BPL doesn’t apply.

If yes, then use BPL to determine if safety measure should have been taken

Key question to use to see if formula applies:

Would society be better off if all the D’s in this D’s position were permitted to act as this D did or
instead required to change their conduct as to avoid the kind of risk which caused P’s injury?

If you tried everything you possibly could, but bad things still happen...should you be financially
responsible for the injuries that happen?

Duty of obligation = to think ahead. By thinking ahead, we can try not to unnecessarily
endanger other people. We do not have a duty not to injure other people

Baseball Park Hypo

F: Park, little league field, tennis courts, bushes, some water fountains. Town decided instead of
having tennis nets, decided to have a fence (don’t have to maintain, etc.) If you hit the top just
right the ball really flies. Person playing tennis and a person with a baby is watching. The person
playing serves the ball and it hits the baby in the eye. Serious physical injury suffered by the
injury. Baby sues the tennis player for the injury.
P: Says that is foreseeable that the ball would bounce off and injure someone that was watching
D: Says that it’s not foreseeable because he had no way to know that a baby would be watching.
H: If only risks that you are not responsible for are the unreasonable risks then you dump the
rest of the costs on others (Policy: Baby shouldn’t be responsible for the injury, society is okay
with making people pay for this type of injury)

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• When you take and put it into a commercial setting, we are dividing the risks and injuries
created by the commercial and industrial activities into three categories
• (1) Industry is liable for people that are injured
• (2) Industry (even if foreseeable) is not liable
• (3) External cost

Cooley v. Public Service Co

F: D had un-insulated power lines above and at 90 angles to telephone lines operated by D
phone co. Severe storm, power lines snap and fall on lines causing a loud noise causing a rare
neurosis in P. Loud noise in the telephone, she fell on the floor in fright and had serious physical
injuries as a result of this loud noise.
P: D was negligent in putting the power line over the telephone line, if something breaks the
power line, it will fall on the telephone line and could create a loud noise. This risk is foreseeable
and unreasonable. ∆ did not fulfill the duty of maintaining certain devices, such as cross-overs,
that could have prevented one of its falling wires from coming into contact with a telephone
wire.
⇒ Defendant could have anticipated 1. That its wire could fall for a variety of reasons, 2.
That a telephone subscriber, if the wire fell, could hear a load noise, and 3. That, as a
result of the loud noise frightening the user, the user would suffer physical injuries (rare
contingency, but could have been anticipated)
⇒ P claims: D should have set up mesh basket to protect wires from falling on telephone
wire.

D: Agreed that they created the risk. The cost (burden) of doing it differently would be greater
than the probability of injury doing it this way (more people would be injured if the power line
hit the ground).
⇒ Defense said the installation of baskets would have caused risk of possible
electrocution and fire to other people
⇒ Claimed negligence: Application of BPL:
o B = Cost of putting up safety baskets 1) costs of basket 2) Installation costs
3) Risk of possible electrocution & fire
o P = the probability that these two wires would come in contact making a loud noise
& the probability that if that happens, that it would cause the neurosis (Rare
chance)
o L = severe neuroses
CT: P must show a viable alternative. Here, alternative would have caused a higher risk of
electrocution while taking rare chance of neurosis away. Burden too high for D and bad for
society. There is no practical device that could be used that would limit the risk of injury to
others, the Burden of doing it another way is too great.

***General duty of the defendant = to take ordinary care so as not to expose people to
unreasonable risk of injury

**Chicken Hawks Rule of Law: If the probability of harm (foreseeability) is extremely low but
the severity is extremely high, it is likely to outweigh the burden. (Chicken Hawks)

Chicken Hawks Hypo {Chase v. Washington Power}

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F: Power lines going through the country, at part of the right of way, there is metal fence. The
fence is part of the right of way and is supposed to be maintained by the power company. Fence
has not been properly maintained, the fence is lying against the guide wires (the triangular wires
that hold the pole up). Two chicken hawks are fighting. Gap between the guide line and the
power lines. Birds have a 9/10 inch wing span. Two birds have wing span of 20”, they try to fly
through, causes the electricity to go through the guide wires down to the fence, through the
fence and caused a fire half a mile down the road. The farmer whose crops burn sues for
damages. Everyone knows of chickenhawks in aerial battle, too close to power lines, barn burns
down.
⇒ DUTY = take reasonable care
⇒ Plaintiff says = By allowing the fence to flop, the ∆ did not take reasonable care
⇒ ∆ says = it is not foreseeable that chickenhawks would be fighting, so the probability of
injury is zero

P: Farmer sues for damages for crops alleging that the negligence is that not enough space was
left. Specific incident that happened wasn’t necessarily foreseeable but the injury was
foreseeable because something conductive could have fallen between the space (i.e. a wet
branch)
D: not foreseeable that two birds fighting chicken hawks getting through the fence. No
negligence on not maintaining the fence because couldn’t foresee the birds flying though the
gap. Unavoidable injury – would have cost more $ than the probability of this
occurring. Not foreseeable that chickenhawks could do such damage. So B >PL
H: Specific facts were unforeseeable, but something else generally could have done
this (wet branches are clearly foreseeable…maybe improbable but not unforeseeable).
Once there is something that is more foreseeable that can cause this harm, even though this
event wasn’t specifically foreseeable the D is liable.
Its PxL (the severity (L) is very large)
The burden is maintaining the whole fence (not just this 10 feet of fence), could be 100s of miles
of fence
Probability x L (severity) has to be relatively high
⇒ P=Unforeseeable Specific injury based on Facts but Foreseeable general injury.
o You cannot get off by saying that the specific injury is not foreseeable if an injury of
the same type is foreseeable. (P = foreseeability in this case and it is low)
⇒ L=High b/c electricity is dangerous/deadly.
⇒ B=of maintaining fence is high.
***When B & L are high, just need a little P for D to be liable. Here, D was liable for a
“foreseeable injury” as this situation was generally too dangerous.

Chem Lab HYPO:

F: Saconey Oil company decided to send high school samples of all of the (petroleum products)
oils in little bottles (crude oil, kerosene, etc.) for display. They are actually dyed waters, used
bottles for advertisement purposes. Teacher puts potassium into bottle (not volatile in
kerosene) and bottle blows up. H20 & potassium are explosive together, but bottle didn’t say
water on label, teacher had no way of knowing it was H20. It explodes because Saconey doesn’t

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actually send oil products (too dangerous to send them in the mail), but instead makes dirty
water that looks like the oils and sends those. The bottles were labeled as if they were oils
Original claim: they shouldn’t have had water in bottles; D’s response could be that sending oil
would be just like Cooley case – sending the oil would have been worse than water
P: Better argument: wrongful act is that the bottles were labeled incorrectly. Mislabeled bottles
are dangerous. In real world, H20 is safer than oil, but not in chem lab when mislabeled. Says
that it was foreseeable that sending the mislabeled bottles to a chem. Lab would create some
type of risk, maybe not this exact one, but foreseeable in an unexpected way. Don’t have to see
this injury per se, just some type of injury. In chem lab, D should have foreseen it
improperly being used and causing risk— like Chickenhawks, where can’t foresee the potassium
accident, but generally can foresee accident under circumstances. The burden is very low, so
any probability of injury kills the D’s claim.
D: Says the probability of this particular event happening is 0, no matter how great the injury is
PxL is zero, so any cost would exceed it.
H: There is a probability of some serious risk of injury, maybe not this exact one, but that an
injury could occur in an unexpected manner.
P wins because D should have known that there was a foreseeable risk of some injury,
even if not this exact injury.

Plane flying near Air Force Base, pre-radar HYPO

F: Flying in a plain in the 1930s (there isn’t radar) and the plain is designed such that the pilots
have 130 degree angle of view. Little air traffic in most areas. Flying near an air force base. See
a plane coming at them from the side, dive 500 feet down to avoid being hit. They were near
military base and if the pilot leaned forward, they would have been able to see the fighter plane.
Leroy isn’t wearing his seatbelt flies up and hits his head on ceiling(passenger).
P: Claims that they were negligent in diving
D: Claims the Burden of not diving (risk of accident is great) – had to die to avoid plane and
save your life. Not liable.
P: Antecedent negligence - claims that flying near the air force base was negligent and it caused
the risk of diving because there is a greater probability of more plans. Once u knew you were
near the military base, you should have been leaning forward to make sure there were no other
planes. The B (looking out the window for other planes) is < PL.
H: Flew near the air force base and they knew there was a probability of other planes, the pilots
should have leaned forward to have more view (it would increase from 130 degrees to more like
180 degrees). D was negligent in flying near the air force base.
R: Foreseeablility: Conduct is negligent when injury is foreseeable. If Burden of doing
something differently is less than Foreseeablility, then there is Negligence.
Antecedent Negligence: D did good, but they weren’t Careful. Look at the events BEFORE
the act to see how they were put in that position in the 1st place. 1. Did he know? 2. Should
he have known?

Rule of Law: Providing a warning of a potential danger may serve to mitigate a finding of
negligence only if measures to guard against injury were unavailable or cost-prohibitive.
(WARNINGS DO NOT CIRCUMVENT THE NEED FOR PRECAUTIONS)

Andrews v. United Airlines

F: As passengers were beginning to exit the aircraft on landing, a briefcase fell from an overhead
compartment and injured P. There was no evidence as to who opened the compartment or what
caused the briefcase to fall.

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P: argued that, even in the absence of direct involvement in the incident, United Airlines was still
aware of the potential for this type of injury and was obligated to take steps to prevent it. 2
expert witness testimony to show United did not satisfy its duty of care toward its passengers
D: United argues that P - Andrews presented too little proof to satisfy her burden (to withstand
summary judgment)D sees a low incident of injuries as incontrovertible proof that the safety
measures suggested by P's expert would not merit additional cost and inconvenience to airline
passengers - B>PxL
H: United has demonstrated neither that retrofitting the overhead bins with netting would be
prohibitively expensive, nor that such steps would grossly interfere with the convenience of its
passengers. And given their awareness of the hazard (135 reported cases) they have not done
everything that technology permits to eliminate it.
The probability of injury greatly outweighed the burden of avoiding it (HAND)

Rule of Law: A person in an emergency situation is treated as a reasonable person in the face
of an emergency, the emergency must be considered. (Lyons and Eckert)

Lyons v. Midnight Sun Transportation Services, Inc

F: D was in an accident and negligently hit P bc D pulled out of parking lot and wasn’t paying
attention and collided with Ps car who was trying to avoid him. P dies.
P: If D had turned properly he would have avoided the accident. Thinks that the sudden
emergency jury instruction shouldn’t have been given because he should be judged as a
reasonable person.
P's expert:
⇒ D might have been driving as fast as 53 mph.
⇒ If D had stayed in his own lane and not steered to the left there would have been no collision
he would have avoided the accident.
D's expert: Midnight Sun's expert contended that steering to the left when a vehicle pulls out
onto the roadway from the right is a normal response and is generally the safest course of action
to follow
H: The court found that the use of the sudden emergency instruction was harmless because it
did not change the definition of liability. With or without an emergency the standard of care a
person must exercise is still that of a reasonable person under the circumstances.
Sudden Emergency Doctrine: Rule of law: which states that person confronted with a
sudden and unexpected peril, not resulting from that person's own negligence is not expected to
exercise the same judgment and prudence the law requires of a person in calmer and more
deliberate moments
⇒ The person confronted with the imminent peril must, however, act as a reasonable person
would under the same conditions
Side Note: Matter of law, as to whether there is a different standard of care to the propriety of
actions in an emergency situation versus a regular situation.

Third Restatement §9 (page 184): it’s a specific factor that the jury can consider in
how a reasonable person would act (in an emergency)
• Person would act reasonably based on the circumstances
• Need to take the emergency into account

Rule of Law: When a person voluntarily exposes himself to a serious injury when saving a
child’s life, unless the act is reckless, it will not be considered negligent. (A PLAINTIFF’S OWN
NEGLIGENCE MAY BE EXCUSED IN AN EMERGENCY).

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Eckert v. Long Island R.R.
F: Train could run either way – no witnesses heard whistle or bell indicating warning signal. Kid
on the railroad, Eckert throws him off the tracks saves his life and gets killed in the process.
The legal issue is: Contributory negligence on the plaintiff.
P: the railroad was negligent in the speed that it was operating in and failure to stop.
D: The P was contributory negligent because he went in front of the train, exposing himself to
danger.
H: When the exposure to harm is for the purpose of saving a life, it is not negligent unless it can
be regarded as rash or reckless. POLICY: Needs to be weighed against the value of his own life,
if it had been property (or a cat) that he was trying to save, it would have been negligent. But
trying to save a child doesn’t give you time to think. Also connects to Lyon because it’s a sudden
emergency.
P wins because his risk of harm wasn’t contrib. in attempting to save the life of a child,
wasn’t rash or reckless, there was no time to calculate the risk.

REASONABLE PERSON STANDARD – COMMONSENSE INTERPRETATION OF

NEGLIGENCE:

Reasonableness - decided by the jury -Subjective/Objective Standard.

The question is NOT whether the defendant thought his conduct was that of a reasonable
person, but whether you (the jury) thinks so.

What would a reasonable _______ person in the position of the defendant do?

You don’t take into consideration:

• mental traits (unless they are mentally retarded)
• Children are judged compared to children of similar age and experience.
• Stupidity is not taken into account because everyone could claim it. It would create the
idea that stupid people could injure someone and get away with it.

You breach when you act in an unreasonable way -ALL OF THIS HAS TO DO WITH BREACH OF
DUTY (negligence)

Knew or should have known:

• Should have known would mean that based upon what has happened in the surrounding
territories he should have known
• (1) Should have known essentially means that you know enough to know that you
shouldn’t take your next (might be risk) step without investigating
• (2) Second aspect of should have known is should calculate rationally

The reasonable person is a legal fiction of the common law representing an objective
standard against which any individual's conduct can be measured. It is used to determine if a
breach of the standard of care has occurred, provided a duty of care can be proven.

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* Negligence is the omission to do something which a reasonable man, guided upon those
considerations which ordinarily regulate the conduct of human affairs, would do, or doing
something which a prudent and reasonable man would not do.

To be free of negligence, a person must exercise the same degree of care as a reasonably
prudent person of the same age and maturity. (THE IMMATURITY OF MINORS IS TAKEN
INTO CONSIDERATION).

The question is whether D behaved reasonably “under the circumstances” – the circumstances
generally include the physical characteristics of D himself.

Exceptions:

A child should be held to the standard of “a reasonably careful person of the same age,
intelligence, and experience” (not that of an adult).

 A child under 5 years of age is not capable of negligence.

When a minor undertakes an adult activity, he is held to the duty of a reasonable adult.
 Lawnmower/motorcycle – any extremely dangerous activity - is an adult activity
and therefore child will be held to RP standard of an adult when a child partakes in these kinds
of activities.

The conduct of a person with a disability “is negligent if it does not conform to that of a
reasonably careful person with the same disability.” (i.e. blindness)

****While a party may not take advantage of one’s age or infirmities in a showing of
negligence, a party charged with contributory negligence is held to a standard that takes
into consideration age and maturity.

Emergency is a circumstance to be taken into account in determining whether the actor’s

resulting conduct is that of the reasonably careful person – D must merely behave as a
reasonable person would if confronted with the same emergency – not as a reasonable person
with plenty of time to think.

No Exception:

The ordinary reasonable person is NOT deemed to have the particular mental characteristics of D
(stupid, careless)

There is no reasonable stupid person.

There is no reasonable poor person.

To avoid risk: beginners are held to the standard of care expected of those who are reasonably
skilled or practiced in the art.
 EXCEPTION – when P has assumed the risk that the D will exercise a
lower standard of care (ex – experienced driver agrees to teach a novice how
to drive) - The inexperienced driver continues to get the benefit of the lower

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standard against his driving instructor, but not against an injured
pedestrian or other driver who did not assume the risk

But it does not issue any rule, noting that "skills or knowledge are circumstances to be taken
into account in determining whether the actor has behaved as a reasonably careful person"
Expresses doubts that higher skilled driver or skier should be held
to a higher standard in an accident (this expert standard only applies to doctors
or people in a certain profession)

An insane person will be held liable for his negligence under the reasonable person standard.
An unforeseen state of insanity is an exception

Intoxication - Being drunk is no excuse - An intoxicated defendant will be held to the standard
of the reasonable sober person.

Where Problem arises:

Where D has greater skills than most people: Second Restatement: provides that the D is
required to exercise the skill and knowledge normally possessed by members of that
profession or trade in good standing in similar communities

EXCEPTION : UNLESS He represents that he has greater or less skill than the average (in that
field – he doesn’t have to do “more” just has to act like a RP!)

LIABILITY IS STRONGEST WHEN: Similarly holds that the case for the higher rule is
strongest when the two parties have agreed to it, or when the D is engaged in dangerous
activities

Rule of Law: Ignorance isn’t a factor that is taken into consideration when deciding if someone
acting like a reasonable person. Objective standard –RP in Ds situation should have known or
would have known.

Vaughan v. Menlove
F: D put hay rick near the boundary of his property near the P’s property. He was repeatedly
warned that it could catch fire. It does and spreads to P’s property, P sues
P: D was negligent because he knew or should have known of the dangers. D was negligent in
leaving the hay because a reasonable person, knowing what D knew would have foreseen that
leaving the hay would create and unreasonable risk of fire that could foreseeably spread to
neighbor’s property
D: Not negligent because he’s dumb and doesn’t know about this type of stuff and had no
reason to know. Did the best that he could do. I should be judged by my own subjective
standard.
H: The court uses an objective std. of behavior (what would a RP have done)? A reasonable
person knowing what Menlove knew would have acted differently, and thus he is liable for the
damage. Defendant acted with gross negligence and the jury can decide.

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FYI: The RP std. always involves risk avoidance. Must ask “did the D do what a RP would have
done? What would a RP have known of available and costs of alternate forms of conducts (cost
of avoidance/should have known to do).

Why do we hold someone like Menlove to this objective standard?

⇒ Policy problem – people will use a defense of dumbness no matter what level of intelligence
they actually are. The reasonable person would have the same knowledge considering the
circumstances but not the same mental processing skills.
⇒ Should people who are so dumb that they cannot act reasonably so as to avoid unreasonable
risk to others keep their money, or should their money go to compensate people who are
injured? A standard that allows people of a lesser intelligence to cause injury lets those
people keep their assets. How we adjust and define standards tells us who can more easily
win and who will keep their asset
• There is no “reasonable low intelligence person” - Will not consider claims of mental
abnormality (below normal ability)
• One reason is because it will cause false claims, would be more claims of not
knowing
• RP should be a person of normal faculties. Need objectivity as there could be incentive to
fake it. Here, D was given a warning. Should have known warning came from someone
smarter than him.

Cityslicker Hypo--(Ignorant and RP)

F-Guy made a fortune in the stock market. Buys a farm upstate. Workers cut down the hay
and he stacks it. Hay catches on fire and burns neighbor’s house down.
D-Not dumb, but ignorant. I had no idea hay would catch fire, I’m not a farmer for that long.
H- Ignorance: RP based on a person in his position i.e Should stocks person have know
about the hay? We look to a reasonable person in the same situation and knowledge and
background. We hold him to what a RP in his situation should have known.

Rule of Law: To be free of negligence, a person must exercise the same degree of care as a
reasonably prudent person of the same age and maturity. (THE IMMATURITY OF MINORS IS
TAKEN INTO CONSIDERATION).

Roberts v. Ring (Physical infirmities and RP)

F-Robert’s, P’s son, age 7 was struck while crossing a busy street by a car driven by Ring, D,
age 77. D was driving only four m.p.h., but his sight and hearing were defective.
P: D should have been able to stop he was only going 5 miles an hour and therefore it he should
have seen the boy and stopped.
D: tends that the charge was without error and further contends that as a matter of law, D was
without negligence and that the boy was negligent
• Contributory negligence for running into street
R-When driving, the court refuses to lower the standard of care, the old man’s
infirmities hurt him. He is held to a standard of care of a driver, a well seeing,
hearing person. If he couldn’t see or hear, he should not be driving.
• The reasonable man standard is used to determine if there was negligence even if the
person charged with negligence is an old man.
• His infirmities (sight and hearing defective) do not change the standard of care used (he
is held to the standard of the Reasonable prudent person of his age and maturity
Regarding D’s contributory negligence claim, a different standard of care was applied
because the boy was a minor.

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****While a party may not take advantage of one’s age or infirmities in a showing of
negligence, a party charged with contributory negligence is held to a standard that takes
into consideration age and maturity.

Rule of Law: Ignorance of a local standard is excused for non-locals, reasonable non-local
wouldn’t be expected to know the standard. (Fog horn hypo)

Great lakes, horn means clear path Hypo

F: Driving in a dark and stormy night - you see a rowboat heading towards what you know to be
rocks (b/c hotel your staying at is near it) - you stop your car and start blaring your horn bc you
are a do gooder. Horn = clear signal of where to go - the boat turns around and slams into the
rocks. Apparently the custom is that a horn signals a clear path not danger in this area. They
sue you.
D: I didn’t know
P: you should have known
D: a reasonable person not from this area wouldn’t know, a reasonable person from another
area would have behaved in the same way.
H: P wins because judged on what a reasonable person not from the area would have known or
should have known

Rule of Law: “beginner RP standard for those who assume the risk”

WHEN P has assumed the risk that the D will exercise a lower standard of care (ex –
experienced driver agrees to teach a novice how to drive) - The inexperienced driver continues
to get the benefit of the lower standard against his driving instructor ( RP standard = what
reasonable beginners are held to the standard of what a reasonable beginner knows or should
know as opposed to just being held to the same standard of an experienced driver), but this
beginner RP standard does not hold up against an injured pedestrian or other driver who did
not assume the risk.

Driving Instructor Hypo

F: Take driving lessons (not a dual operated car). Experienced driving teacher. Student learning
to drive on a manual car. Car comes in the opposite direction and student gets nervous (b/c the
road isn’t that wide) hit the clutch and get into an accident, teacher is hurt and sues. Assume no
indication of contrib. on the teacher’s behalf...
D: First says “I’m not negligent” [first level of defense]
• Then says that he acted within the standard of care of someone who is learning to drive
• Did everything a reasonable person would do, took driving lessons
P: Says that that he should have known the difference between the clutch and the brake. He
was negligent for this beginner. He should have thought about it and applied it.
H: Even a reasonable beginner knows or should have known the difference b/t the
clutch and brake. Mistake was unreasonable for a beginner.
P wins because a reasonable beginning driver knows the difference between clutch
and brake (despite assuming the risk as a driving instructor – beginner driver “should
have known” the difference between a clutch and a brake b/c a RP in the drivers
situation being a beginner would have known.

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Rule of Law: Newly licensed drivers are held to the standard of licensed drivers, not newly
licensed drivers.

To avoid risk: beginners are held to the standard of care expected of those who are reasonably
skilled or practiced in the art.

Learning to drive a car and get in an accident Hypo

F: Learn to drive a car, get in the car, go really slowly. Get in an accident and hit someone
D: Don’t know how to drive
P: You shouldn’t be driving, “A reasonable person wouldn’t have gotten on the road if he didn’t
know how to drive”
H: P wins, reasonable person wouldn’t have gotten in the car – RP of beginner is the same
standard of care expected by those who are reasonably skilled – held to the same standard as
everyone else on the road.

New Driver, just got license Hypo

F: Just got license, go around the corner faster than the experienced driver would go around the
corner, hit someone
P: D was negligent in hitting me, did not act like a reasonable driver
D: I should be held to the standard of a reasonable new driver
H: Once you have a license you are held to the standard of the reasonable (normal experienced)
licensed driver
P wins, all drivers held to the standards of a reasonable licensed driver.

Rule of Law: Experience doesn’t increase the duty of the standard of care, you are still held to
RP standard. (Race car driver)

Race Car driver accident on highway Hypo

F: Assume the driver is an experienced race car driver, has a blow out (going 50mph in a 25
mph zone)
H: Reasonable person doesn’t act in violation of safety standards, even if they are a better
driver. So “more experienced” people are held to the same standard as a normal
reasonable person

***Unreasonably dangerous is cost benefit (violates the Hand formula)

Child Standard – Rule of Law:

Minor engaged in an adult activity that can result in grave danger and is usually performed by an
adult, is usually held that adult standard of care. (Daniels – 19 year old on motorcycle/
lawnmower hypo).

Some jurisdictions apply this to only licensed activities. Some apply it to unreasonably
dangerous activities

Daniels v. Evans
F: 19 year old P was killed when his motorcycle collided with the car of D.
P: Should be held to a reasonable standard of a kid his age

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D: Should be held to an adult standard because it was an adult licensed activity.
H: The court held that a minor engaged in activities that are usually undertaken by adults should
be held to the same standard that is required of adults.

Different judges in different jurisdictions apply Daniels differently. Some say it’s a
licensing case, and some say it’s a dangerous activity case. Furthermore they apply it
to different activities (some many not necessarily be dangerous)

*Efficiency argument: A driver can’t see who is driving the other car and is expecting an adult
level of care, less accidents. Legislature made all traffic rules apply to all drivers. When
minors engaged in activities appropriate to their age and experience, then they are
entitled to be judged by the standards of their age and experience.

Reasonable Kids Hypo

F: Two 13 year-olds out on the lawn. 13 year old (whose father’s lawn it is) is mowing the lawn
with a typical push motor. Decide to play lawn mower tag, runs after the other kid trying to
bump him with the housing. Mower goes over a bump, pushes it up and takes off part of the
other kid’s foot
Defendant: kid pushing the lawn mower (his father’s lawn)
Plaintiff: other kid
P: he exposed me to an unreasonable risk of danger.
D: says that he should be held to the standard of care of a 13 year old child – (not unreasonable
because there are safety devices)
P: (Daniels) when the kid is doing an adult activity should be held to an adult standard. In
Daniels it was a motorcycle – in this case lawn mower – dangerous activities. should be held to
the standard of the activity that he is doing.
D: distinguishes Daniels. Saying that driving is a dangerous activity requires a license and
requires a uniform standard (License requires that they judge by the same standard of skill) –
any 13 year old would not
• Defendant Holding: License activity case, defendant was held to an adult standard
because it was a license activity case. Is riding a lawnmower an adult activity?
P: That he was acting unreasonably dangerous for a person his age, This is the only thing left if
the child standard is to be applied. What a reasonable 13 year old should have known, no
reasonable 13 year old would play lawn mower tag
H: Judged by a reasonable 13 year old standard, no reasonable 13 year old would think that
playing lawn mower tag would be okay - reasonable 13 year old should have known better and
would have understood that this game was dangerous
Side Note:
(Contrib. may have been a problem for the plaintiff in this case)
Parents home owner’s insurance policy will pay
Would be hard to make the parents liable, because you would have to show that it was
foreseeable that something like this would act

Rule of Law:
We ignore insanity - (standard rule in US just like we ignore stupidity)

Exception to the Rule:

Sudden insanity attack = just like a person suddenly having seizure or heart attack.

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BUT it has to have been unknown to D before attack (just like an epileptic driving) if you know
you are prone to insanity attacks

RARE: rarity is no reason for overlooking their existence and the justification which is the basis
of the whole doctrine of liability for negligence i.e. to hold a man responsible for his conduct
which he is incapable of avoiding and which incapability was unknown to him prior to the
accident

**Breunig approach to insanity still governs insanity in automobile cases

**Breunig does not apply to institutionalized insane persons

Breuning v. American Family Insurance Co

F: P was struck by a car driven by D, who believed that God was controlling her and told her
that she could fly like Batman, etc.
P: Should be judged by a reasonable person standard. Should have known due to her condition
that something like this could have happened.
D: Crazy and don’t know better, should be judged as a crazy person
H: Crazy people are required to act like a reasonable person that are not crazy (held to same
reasonable person standard as everyone else driving a car).
Policy basis of holding a permanently insane person liable for his tort is:
• (1) Where one of two innocent persons must suffer a loss it should be borne by the person
who occasioned it;
• (2) to induce those interested in the estate of the insane person (if he has one) to restrain
and control him and
• (3) the fear an insanity defense would lead to false claims of insanity to avoid liability

Getting to Hand Formula :

The D did not know but should have known = not held liable

Once you identify that the D knows the risk and D may not still be liable

A reasonable person depending on risk and in a different scenario might handle it differently

Rule of Law: When creating a danger on a public thoroughfare, the one creating it must give
notice of its existence such that all who encounter it will be reasonably protected from injury.
Must take necessary precautions to avoid any foreseeable risk (even if the chances of it
happening are low – but the severity of injury is high this outweighs any burden you have to
prevent that risk/injury from occurring (WARNINGS MUST PROVIDE NOTICE TO THE ABLE-
BODIED AND DISABLED ALIKE – EVEN DRUNKS!)

HYPO: Bar and Grill

F:You are going to open up the basement and give it a separate entrance by taking off covers so
opening is bigger - have to do lots of digging - not a one day job - there's a big hole in the side
walk right in front of the restaurant. You say to yourself that during the day its light so everyone
can see it and at night there's streetlights so everyone can see it = not dangerous – you

33
balanced the risk and it is small. Someone comes along reading a newspaper and doesn’t see
the hole and he falls in.
D: I assumed people were acting reasonably
P: it’s foreseeable that careless people (acting unreasonably) are walking down the street
H: Reasonable person has to assume that other people are not going to be reasonable in
(foreseeable) ways. She should know that people are walking down street texting and reading.

Metal grate and barricades HYPO

F: Metal grate on the street, its broken, need to repair, going to several days on a city sidewalk.
Now there’s a hole in the ground. Barricade around the hole. Blind person falls into the hole.
P: Even if they didn’t anticipate a blind person, someone drunk or otherwise impaired could have
fallen in. A reasonable person assumes that other people act unreasonably because there is no
such thing as a reasonable person.
D: I put up the proper barricades, not foreseeable that a blind person would be walking there
and fall in.
H: Don’t have to see the actual injury that occurred, just need to see the possibility of an injury
of that type occurring. Don’t need to foresee the specific risk, but just need to see that there is a
foreseeable RISK that inevitably exists. Don’t need to predict wholly unreasonable conduct of a
person, need to predict some erratic behavior (even smart people do stupid things).

Metal grate and barricades Hypo Variation 1

F: The barricades are at a point, so there’s a little sidewalk. One kid comes by and jumps over
the barricade and lands on the sidewalk so all the kids have to try it, kid falls in and gets hurt
and sues
P: Kid will act as a kid his age
D: Yes you have to foresee that people won’t act reasonably but you don’t have to foresee that
people will take intentionally clearly unreasonable risks
H: Not responsible for the people jumping over

Barricades HYPO #2
F: Owner (D) - puts down barricades - painted yellow - so everyone can see them - very
noticeable - puts across front and down side around hole. P comes along with kids and they
bump into barriers and they get moved a little (moved from where D put them)
Person with vision problem is walking down street and goes right in between space that the kids
made and falls (the woman with kids walks away so she cant be sued she's gone). Is D
negligent?
D: To be negligent risk must have been a risk that she knew. She blocked the hole to prevent
someone from falling in with barriers - she could not foresee that kids were going to move them.
P: Claimed negligence is now either that the barriers weren’t maintained, barriers weren’t
sufficient or that the barriers should have been attached in some way so they couldn’t be moved
(use something that couldn’t be moved) and should have foreseen they could be moved. D
should have known and forseen that SOMEHTING could have moved the barriers. D should have
secured them (chain them together) so they could not move apart.
H: Reasonable person should foresee that someone would bump into it and they could
be moved inadvertently (accidentally) (same holding as original hypo with blind person)
Don’t have to see the actual injury that occurred, just need to see the possibility of an injury of
that type occurring. Don’t need to foresee the specific risk, but just need to see that there is a
foreseeable RISK that inevitably exists. Don’t need to predict wholly unreasonable conduct of a
person, need to predict some erratic behavior (even smart people do stupid things).

Barricades HYPO #3

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F: P has a drinking problem and she is with friends who drink a lot - are all walking down this
street loaded. They see the barrier up ahead and say "track meet" and use the barriers as
hurdles…injury occurs for obvious reasons.
P: you are negligent because I fell and of course going to SUE…
D: had barriers and they were chained together – what more do you want?
What should D have done according to P?
P: claims barriers should have been higher
D: I should not know or anticipate that people are going to "hurdle" them
H: Underlying issue dealing with negligence:
• What anticipation are you supposed to make about others?
• Should you assume they will act safely?
IT DEPENDS!
• DEPENDS on specific nature of conduct...
• You should have known?
• Was it a possibility?
• What should you have done differently?
• Whatever D didn't do is what they should have done (according to P)….and P claims that
they should have known
• How much UNSAFE conduct do we have to FORESEE? IT DEPENDS.
• Use chicken hawks  If the probability of harm (foreseeability) is extremely low
but the severity is extremely high, it is likely to outweigh the burden.
• Not foreseeable - that someone would hurdle barrier.
• Is it an unforeseeable that someone would use as hurdle but is there
something else that would cause D to need a higher barrier?
• So think of something that could have happened depending on the height of
the hurdle - someone not paying attention and walked over it…drunks could have
been throwing up over barrier and leaned too far
• As long as you can find something that would have happened b/c of
low barrier other then the drunks hurdling it...
• THEN you can foresee that something else could have happened
• You can’t foresee hurdlers but you can see that someone could bump into
them and put them right over the hurdle - something you should have foreseen.
(even if it is low – the severity of someone falling in the hold is high and outweighs
the burden the D may suffer in money paying to secure the hurdles or make them
higher to prevent this risk.

Alternate barricades Hypo # 4

F: Now hypo where person isn’t looking at the barrier looking at someone else and falls over the
barrier
P: Claimed negligence is that the barriers were too low
D: Can’t protect everyone from everything, if so you’d need a 6 foot high fence with electricity
so no one would climb over (cost benefit analysis says that isn’t the best solution)
H: This would probably get to the jury

Metal grate and barricades Hypo Variation #5

F: Used the police barriers because had the police barrier, just don’t have the money to rent a
fence or anything else [all assets are being devoted to other activities, remodeling etc.]
P: This was foreseeable, wealth or lack thereof doesn’t matter.
D: Can the fact that there’s no money (wealth) be a consideration?
H: Wealth isn’t a factor in decision. . When we talk about poverty, we don’t really mean poor;
you have to have assets to be negligence. Can’t really say that you don’t have the money to

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build a better fence or repair the fence. Notion of “I don’t have enough money” isn’t a defense
because it’s not a true reflection of reality (Asking to be free to allocate the money as you
choose)
***There is no “reasonable poor person” just a reasonable person standard of care

Brake Failure in February Hypo

F: D is driving her car going north on the meadow brook coming from the southern state
highway. She goes to brake to get onto the meadow book, when she pushes the brake, she
notices that something is wrong but there’s no exits between here and Hofstra. She slows down
to go 50 mph or so. Someone cuts her off and she slows, but the car still doesn’t stop now she’s
going about 40 mph. She goes to get off the exit, brakes again and fails completely and she
goes right off the road. Going uphill on the off ramp, hits another car that is on the side of the
off ramp (that has a flat). Happens at about 4pm in February, there is ice and its about 28
degrees
P: Claimed negligence is that once she knew the brakes were faulty she should have stopped
D: Acted appropriate, she slowed down twice, she didn’t know the brakes were faulty. Also,
she’d expose herself to a greater risk of injury than the injury to others, its going to get colder
when it gets dark and she’ll have to walk somewhere to get help. Vulnerable to attack by others.
Burden of pulling off was greater in terms of risk of injury to me than to others, she didn’t have
any reason to believe that the brakes would fail completely
P: Maybe she acted properly the first time, but after the second time she had more notice
because that the brakes would have failed eventually. New claimed negligence is that she
didn’t slow down enough, this is a better argument. Next one is that she should have
known that her brakes would have failed completely because after the second time she should
have know that there was rapid deterioration.

People walking on side of the road Hypo

F: Driving east on Hempstead Turnpike. 2 people walking on the shoulder (no sidewalk). Driver
(a police officer) recognizes one of the people as being a drug smuggler, but doesn’t know the
other person. Driving in the center lane. Sees the criminal and switches to the right lane (near
the people walking) and slows down to 30mph (speed limit is 40mph). The non-criminal
stumbles and trips into the street. The driver swerves and hits him.
P: Will sue the police officer saying that a reasonable person wouldn’t have acted as the
defendant acted or should have known that what he did would cause an unreasonable risk of
injury. Violation of a standard of care, is to not create unreasonable risk of injury. The defendant
was negligent by switching lanes bringing the car close to the people that were walking and he
created the risk that someone could be tripped, fall or be pushed into the lane, if he was in the
center lane, no one would have gotten hurt.
D: The risk wasn’t unreasonable: (use the hand formula). Reasonable purpose and he slowed
down to reduce the risk.
H: The fact that there is a right lane helps the defendant’s case. He couldn’t be creating an
unreasonable risk because he was driving in an authorized lane for travel (And he even slowed
down to reduce any risk).
Amounts to whether the probability of an injury occurring is greater than the burden. The
probability of serious injury is low.
Side Note: If the person was walking on a sidewalk, the same thing would have / could have
happened so having sidewalk doesn’t change anything

People walking on side of the road Hypo2

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F: Changes lanes, doesn’t slow down, knows the shoulder is very rocky. Sees that the plaintiff is
walking close to the shoulder (shoulder is full of holes). This time what happens, the plaintiff is
pushed in front of the car
P: Foreseeable that this type of incident could occur.
D: Changes help the defendant. It is less foreseeable that the plaintiff would be pushed as
opposed to tripping. Not within the foreseeable risk.
H: If the person tripped it would get to the jury. The significance of pushing him doesn’t change
too much, it doesn’t change the risk that the driver created as the driver changed lanes and
didn’t slow down. The question is whether the push is within the range of foreseeable injuries.
Intentional torts may help the defendant.
Side Note: Knowledge of risk, burden and probability of serious injury. Foreseeability:
Probability of injury and Burden. These facts make the injury more probable, Faster speed and
rough ground, makes them more likely to trip, puddles, so they are closer to the street, makes it
more foreseeable that that they can fall into the street. Facts relate to specific legal issues. If he
was in the right lane and did see someone that was virtually on the line and could see the
ground is uneven, you should reduce your speed.

Drunk Driving Cases D held to Reasonable sober person standard. Apply by saying not picking
a designated driver prior to going to the party is negligent act. Should have known u would get
drunk (Antecedent Negligence). Being drunk is no excuse - An intoxicated defendant will be
held to the standard of the reasonable sober person standard!

Medical Hypo Young person gets routine eye surgery. General anesthesiologist
present. Patient has heart attack. Anesthesiologist pounds on his chest to revive. Also, calls a
cardiologist. Takes cardio guy 6 minutes to get there. Child partially brain dead when he does
arrive. Cardio guy tells P to sue eye doctor
P: Eye Dr. is negligent b/c he knew there is a foreseeable risk with medical
procedure and should have 1. Had a chest surgeon present 2. Known the procedure
himself. B < PL b/c burden was low in having Dr. around since they are in a hospital
and PL is high with chance of death.
D: B is huge. Having a Dr. on immediate call is enormous expense. Also, small PL when there
is an EYE exam that a heart problem would arise.

Lucy Webb Hayes

F: Crazy woman was in a mental hospital b/c she was suicidal. Walking with nurse in a locked
ward when she gets away and jumps out unlocked window and dies. Hospital generally had the
doors locked and plaintiff alleges that the hospital fell short of its own standard of care when it
allowed the decedent to wander into a normally locked and restricted area.
P: Sue mental hospital. This was foreseeable. Only sent one nurse, who you knew
wasn’t strong enough to restrain the decedent. Should have had better training. Also, knew of
danger. Hospital fell short of its own standard of care. B <PL. Small Burden of locking the
windows or putting bars up. Should have known and foreseen that this was necessary in a
mental ward and standard of care is to lock things up usually.
H: The court held that the jury could reasonably conclude that the hospital’s failure to observe
the standards it had itself established represented negligence.Since we want to encourage
employers to set up rules with a high standard of care, we can’t allow those rules to be held
against the employer.
Lucy Webb, is a more recent case and have shown a willingness to allow the plaintiff
to introduce the defendant’s own internal rules on the standard of care in question.

Dirt Road Hypo:

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F: Many drive on one part of the road. Dirt road in country with few houses. 2 cars hit. D is
being sued by passenger in front seat of his car.
Guest Statutes in Automobiles: Only in a FEW states: If a non-paying passenger in a
car is injured and sues the driver, the driver is not liable UNLESS he is Grossly
negligent, reckless.
Most States: Guest is owed a duty of ordinary care.
CT: Not liable here b/c action wasn’t gross etc.D has less of a duty to a passenger. Policy:
This prevents friends from faking accident to collect money from insurance
companies.

NEGLIGENCE - CUSTOM

Defined: admissible as evidence to demonstrate reasonableness and the standard of care

owed, but it is never conclusive. A custom may be found to be negligent.

It can be of great significance to P he shows consistent conduct of an entire industry that D did
not implement.

Three views on Conduct:

1. If the D shows he conformed to custom, directed V. (Titus)
2. Custom is only evidence
3. Evidence of custom should not be admitted (Mayhew)

Custom: Rules of Law -

*OLD RULE: A business practice will not constitute negligence it if complies with the ordinary
standard in the industry; an employer is not required to keep a workplace safe from all harm.
(COMPLIANCE WITH INDUSTRY STANDARDS INDICATES AN ABSENCE OF NEGLGIENCE). (Titus)

Modern view – courts generally allow evidence as to custom for the purpose of showing
presence or absence of reasonable care. However, this evidence is generally not conclusive.

Evidence by D:

Evidence that conduct conforms to average conduct or custom within an industry does NOT, in
and of itself, mean that the conduct is not negligent. (AN ENTIRE INDUSTRY’S FAILURE TO
APPRECIATE AND GUARD AGAINST RISK DOES NOT NEGATE NEGLIGENCE).
(Mayhew – overturned Titus)

Evidence by P:

Proof offered by P that others in D’s industry followed a certain precaution that D did nto, will be
suggestive but not conclusive evidence that D is negligent.

Rule to follow: Custom is admissible as evidence to demonstrate reasonableness and the

standard of care owed, but it is never conclusive. A custom may be found to be negligent. (TJ
Hooper)

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Industry custom does not always establish reasonable prudence, when new technology or
methodologies are available and accessible. (A PRACTICE THAT IS NOT YET A CUSTOM MAY
DEFINE REASONABLENESS). (TJ Hooper)

If the company has a safety standard that is higher than the standard of care then the company
is held to that standard, not custom standard.

Custom is admissible for the jury to consider, when it is so obviously dangerous it will
not be a defense, but it’s up to the jury to decide, better to get to the jury than not at
all.

Train Whistle Hypo

F: Railroad company, all the engines have whistles or horns. Buys the industry standard which is
a 92 decibel whistle. Has on all of her trains, this is the whistle that is sold for all of the trains
(all set the same across the country). It’s a dark and stormy night in the middle of winter and a
person is in his car. Volume on the car radio was high, if you were in the car next to him, you
might have found it loud, windows are closed and heat is on. Railroad track has a sign but does
not see it reasonable to have gates. The driver doesn’t see or hear anything and drives across
and gets hit, serious injuries. Was D negligent?
P: Sue’s the railroad company and says, insufficient safety measure (could say gates / lights /
etc. but not enough trains and cars to justify greater warning system, so this isn’t the issue).
The insufficient safety measure is that it’s not a loud enough whistle - should have been louder
D: It is loud enough and you can prove that because it’s the industry standard - custom is
industry standard and therefore custom shows reasonable conduct - MOTION TO DISMISS :
insufficient evidence that D was negligent in breaching duty
H: Custom – it’s the industry standard. The issue is that this is what everyone does. The burden
is too high to impose a different standard. And a reasonable person is judged by what he knew
or should have known and the defendant in this case had no reason to know that the whistle
wasn’t loud enough.

Side Note: Why is custom a defense?

• Evidence that everyone does this strongly suggests that the individual person has no
reason to know nor should they know that there is something unreasonable about what
they did.
• Evidence that it is not unreasonably dan
• gerous, for everyone who had a responsibility picks 92, is some evidence that 92 is the
right amount.
• Furthermore the loudest whistle might be detrimental to some people, especially in a
residential neighborhood.
• Custom tells us something about the burden, maybe everyone’s whistle isn’t loud enough,
or maybe you need a 3 level whistle

Titus v. Bradford RR
F: Employee of RR killed because Broad gauge RR car was switched onto a narrow gauged track.
H: Overturns the old rule that no person should be held to a higher standard than the industry
standard (this would give a directed verdict). The new rule is that no one can be held liable if it

39
is in conformity with custom so long as it is a reasonable custom. Allows the introduction of a
reasonable custom.

Mayhew v. Sullivan (overturns Titus)

F: Plaintiff fell through an unguarded and unlighted hole that had been cut in a platform
P: Claimed that it was negligent
D: Claimed that they conformed to the custom in exercising average ordinary care.
H: Evidence of Custom should not be permitted. Custom isn’t admissible where the conduct is
obviously dangerous. Even if the entire industry does it, you can still be negligent. The hole
wasn’t guarded nor lighted, which is unreasonably dangerous. The words custom or average
do not belong in the definition of ordinary care.

TJ Hooper
F: Not all tugs are equipped with radios. This tug did not have a working radio when the accident
occurred. Most of the radios on tugs were provided by private people.
P: Should have had a radio – negligent.
D: Radios weren’t required, not everyone had one. Since not all tugs had radios, it was not a
custom. There was no industry standard.
H: Regardless of custom, D will be held liable if his actions fall beneath the standard of an
ordinary prudent man. B (radios) < PxL (danger of an accident without communication).
Custom is admissible for the jury to consider, when it is so obviously dangerous it will
not be a defense, but its up to the jury to decide, better to get to the jury than not at
all.

Custom Used Against a Defendant [reverse standards]

• Plaintiff can use the internal safety standards of a defendant as evidence that they
violated their own standards. i.e that it violated the defendants standards of safety
• If you have standards as a company and people don’t follow them it increases the cost
 If it’s a small company then no standards for anything, but you can get sued for not
having standards
 If too many people are getting hurt by the industry standard, you might toughen
them to save money
 If the employee personally didn’t conform to the standard, the suit won’t be
successful for the defendant

Modern View: Custom can be introduced as evidence in a case when issues of burden and
foreseeability are reasonably presented to the jury.
Assume Custom has been set: Can introduce custom as an element to show reasonable
behavior. If D performs higher than the customary level, that adds evidence of D acting
reasonable – there is a chance of Directed verdict. Hand’s opinion in Hooper is persuasive.
Custom is only evidence and not conclusive.
• Where D performs at industry level, & Ct. Believes act is negligent they will find it
unreasonable. Where D performs below custom, shows unreasonableness even if the
industry is performing at very high levels.

Custom in the Medical Field

Medicine is specialized field and need specialized info to determine negligence. Std. becomes one
of a reasonable doctor. Std. of care for professionals becomes std. of care for the profession.

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 ⇒ D’s have a higher degree of knowledge, skill or experience than the “reasonable person” –
so D must use that higher level

Std. Of Care for a Doctor: Would a reasonable doctor do what this doctor did? (Did the Dr. act
w/in the conformity of a reasonable Dr.?)
 Custom in industry is standard of care
 The custom is the duty (standard of care) - to provide reasonable medical care

**Distinction of Std.: Reasonable doctor is what an actual doctor would do, not what a jury
thinks a reasonable person w/ knowledge and experience of a doctor would do.
 Only rational way to think of it is to compare to what other doctors would do

To prove professional malpractice, the plaintiff must produce expert testimony to the
standard of care except when the conduct didn’t required the specialized knowledge and training
of the professional
 Standard of profession needs to be determined by a doctor (expert)
 An expert in the field is a necessary ingredient in determining negligence.
 D's professional negligence can ONLY be shown through an expert. Need medical
knowledge to figure out B < PL

Experts must prove 2 things to get past a DV:

1. There is a standard course of conduct in this situation, tell what it is. . .

2. D departed from this standard and was negligent in doing so.

Exception to standard of care :

 Only when activity has dangers that need specialized training to evaluate

*Exception to needing expert: If D's negligence is so blatant that a laymen can determine
negligence, no expert is needed.
 Ex. Leaving sponges in patient.

*Even if a certain practice is a standard of certain communities, this does not mean it isn't
negligent. Specialists are judged by national standards and not the community standard.

Reasonable Doctor Standard – Rules of Law:

Doctor is held to the standard of a reasonable doctor, not a reasonable person.

There is no locality standard anymore. (Brune)

Medical expert is needed to prove the standard of a doctor, standard is not set by the courts /
legislation.

Doctor performing a “non-specialized” activity (like removing sponges) are not held to a
reasonable doctor standard, they are held to a reasonable person standard.

Informed Consent

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Reasonable person in the patient’s position wouldn’t have taken the treatment (NY & Canterbury
[D.C])

Need to see if a reasonable patient in the patient’s position wouldn’t have taken the treatment if
he knew the risks

Need to show that the patient wouldn’t have taken the treatment. (other jurisdictions)

Reasonable doctor standards to show what a reasonable doctor should have known

Three standards for when a doctor doesn’t have to inform:

1. Common knowledge,
2. Emergency situation where patient is unconscious or incapable of consenting.
3. Patient can’t handle the information (heart condition or mental instability). Patient is
emotionally unstable & can hurt his well being not to perform operation.

The physician’s duty to disclose requires that he or she explain all of the potential risks of a
producer that a reasonably prudent patient would deem relevant in deciding whether or not to
consent to the procedure. (LACK OF INFORMED CONSENT CONSTITUTES MEDICAL
MALPRACTICE).

Colitheris Hypo
F: Patient felt very sick, in Springfield, Ohio. Went to the doctor who did a clinical check up. (No
blood, no urine tests, no x-rays). Along with the history, immediately realized that he had the
dread colitheris which is virtually 100% fatal if not treated in the first 48 hours. Patient has had
it for 38 hours, symptoms are similar to that of the flu. There is a test, but it takes 24 hours. Dr.
decides that has to give him the medication. The medication nearly kills him, leaves him brain
damaged, serious physical injury.
P: Sues because it turns out that he didn’t have colitheris. Doctor didn’t have to give me the
medication therefore she’s liable. Not informed consent, sue the doctor on the ground that she
was negligent because he didn’t have the disease. Sues for Medical Malpractice. Dr. violated
the std. of care of a reasonable Dr. b/c he gave her unnecessary medication--Harder to prove.
D: First, make a motion to dismiss for insufficient evidence, this time on a particular element,
the violation on a standard of care. Lack of evidence that the doctor breached his duty (didn’t
perform to the standard of care).
H:Motion to dismiss – insufficiency of evidence. P Must prove what the relevant standards
of care are. Need an expert to tell what the standard of treatment is, he doctor on trial must
have the characteristics of a reasonable doctor.

R: Professional malpractice can only be proved by medical experts – to provce the standard of a
doctor, standard is not set by the courts / legislation. If doctor gave treatment that conforms to
the medical standard of a reasonable doctor then he wasn’t negligent (didn’t violate the standard
of care), and could move for directed verdict because the patient did not present evidence to the
standard.

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Lama v. Borras
F: Doctor didn’t order the standard bed rest prior to surgery. Patient had the surgery and had
several complications after. Also didn’t give antibiotics right away.
P: The defendant didn’t follow the standard of care and was a violation of duty and this omission
caused the injury.
D: Followed the standard of care, no violation of duty.
R: Plaintiff must demonstrate the following to show med mal:
1. the basic norms of knowledge and medical care applicable to general practitioners or
specialists
2. proof that the medical personnel failed to follow these basic norms in the treatment of the
patient
3. A causal relation between the act or omission of the physician and the injury suffered by the
patient. Plaintiff need to prove what the standard was, and that it was violated
H:P wins showed the standard of care and that it was violated.
Side Note: Interesting in the Lama case is that the most likely failure would be not giving the
defendant an antibiotic before the operation (now everyone knows you give the antibiotic).
Problem that 20 years ago that not giving the antibiotic an hour before an operation was
sufficient causation. Standard has changed now and the antibiotic is part of the standard of care.

Brune v. Belinkoff
H: overruled the locality rule. General standard is one of the average qualified doctor taking
into account advances in the profession. The doctor must exercise the degree of care and skill of
a reasonably competent practitioner in his field under similar circumstances.
Side Note: used to not be fair to hold to the same standard because small town doctors didn’t
know what was going on in the big cities because of slow communication. So the standard was
compared to a reasonable doctor in that area, and couldn’t bring in a bigwig doctor from
Chicago/Boston to testify, because they didn’t know the standard of the area.

Sheeley v. Memorial Hospital

H: Change in what testimony is admissible.
 Makes it easy for plaintiffs to get in front of the jury.
 It expanded the range of the doctors that could testify and ended the conspiracy of
silence.
 Allows doctors from different areas, and the doctors don’t necessarily have to be experts
in the area of the case.

Appendectomy Hypo (sponge left in patient):

F: Patient needs appendectomy and when he’s closed up they leave a sponge in him
P: Doctor was negligent in leaving the sponge in, doesn’t take special skills to count sponges.
D: wants to bring in an expert to say that this is the standard and that doctors do this from time
to time.
H: A doctor shouldn’t be judged by a medical standard when he’s doing something that doesn’t
require specialized care/knowledge. Counting sponges doesn’t take an advanced degree. This
type of activity is judged by the reasonable person standard even though it’s part of medical
hospital treatment because it’s a decision that isn’t part of specialized training.
P wins, no expert testimony because counting sponges isn’t part of specialized medical
practice.

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Side Note: Same thing holds if a doctor is driving 95mph to get to the hospital, the court won’t
let the jury - judge if they are a doctor or not, they are judged to the standards of a reasonable
person driving in the highway.

Helling v. Carey
F: Doctor doesn’t give routine eye pressure test.
P: Doctor was negligent in not giving the test
D: the standard of the profession doesn’t require this test, followed custom
H: The burden of doing the test was less then the probability of injury times the severity. The
test is easy and the cost of not doing it is high. CT: B (simple test) < PL (saving injury). Tests
are easy and risk is high. D is negligent.
P wins, the burden of doing the test was too small to not do it.
Helling has been rejected by pretty much every state. Legislature / Courts cannot set
the standard of care for the medical profession, it must be set by the doctors.
Legislature overruled Helling: test price may be small, but adds up if done everywhere.

Colitheris Hypo2 – lack of consent

F: Same facts, except there was no consent. The doctor didn’t violate the standard of care
because the standard is that if the clinical diagnosis is colitheris, even if you may not have it,
you treat the disease if there’s no time to do a blood test. 95% chance of death untreated, 1/10
who take the medication have serious side effects, 1/100 have permanent serious side effects
(99% who have side effects, they disappear), the ones that go away aren’t that good (they can
take from a few weeks to a couple years to go away).
P: Says that he was not informed of the risks/side effects of taking the drugs. Sues for
informed consent. The Dr. must inform patient of risks of proposed
treatment. P must show that he or the reasonable patient would have declined treatment if full
disclosure was made.
H: Depending on the jurisdiction. Some jurisdictions say that you can only get to the jury if
you can show that a reasonable person in the same situation wouldn’t have taken the
medication.

Other jurisdictions allow the plaintiff to get to the jury if he says he wouldn’t have taken it
(this isn’t the best policy because you depend on the credibility of the plaintiff). Also need to
know what the doctor would have told the patient if he had given him information about the
risks.
In NY and Canterbury (D.C.) the reasonable person in the patient’s position holds.
Duty is to act reasonably to protect the patient’s right to decide

**If we have a malpractice suit, why do we need a suit on informed consent? Because
you might lose the malpractice suit because the doctor was not necessarily negligent BUT there
was still a bad outcome.

Canterbury v. Spence
F-Dr. performed operation that hurt P’s spine. He didn’t disclose risk before operation.
P-Dr. did not reveal the risk of paralysis, makes out a Prima Facia case of violation of the
physician’s duty to disclose.
H: Dr.’s informed consent doesn’t have to be full disclosure, but enough to match
patients need to make a informed decision about the risks/benefits of having the operation.
Rule of Law: The physician’s duty to disclose requires that he or she explain all of the potential
risks of a producer that a reasonably prudent patient would deem relevant in deciding whether

44
or not to consent to the procedure. (LACK OF INFORMED CONSENT CONSTITUTES MEDICAL
MALPRACTICE).

Colitheris Hypo3
F: Clotheris is an old disease, a doctor has been doing research . The findings have just been
published that say there are 7 clinical factors. But there are two factors that are most critical;
Degree of discoloration in the iris. No one knew it was the degree of discoloration, just that it
was discoloration. Treating doctor hasn’t read the study yet.
H: Does the doctor have the duty to tell the patient about risks that she didn’t know. Now the
doctor is judged by what a reasonable doctor should have known in his position. If the doctor
should have read the study, then the situation would be different.

Reasonable Patient/Doctor Standard

 There is a reasonable patient standard to see if the information if provided would have
caused a different decision
 Second is a reasonable doctor standard, to see if the information that the doctor didn’t
know, if he should have known

Reasonable Doctor standard for Disclosing Information:

1. Reasonable doctor determines whether the actual doctor’s decision not to tell the patient
(because its common knowledge) was okay
2. Reasonable doctor only has to provide information that they think a reasonable patient
would not know
a. Competing interests, between the doctor who doesn’t think that they need to tell
anyone anything and the patient that thinks that they should know everything
b. Balance between these two people by creating reasonable entities
c. Don’t have to tell patients their choices (which vein to use) if they all have the
same risk
3. One more reasonable doctor knowing the condition of the patient, “can’t handle” the
information, if the reasonable doctor would have told the patient
a. Heart condition so sensitive that any anxiety will lead them to a heart attack
b. There’s the people that don’t want to know anything, Studies prove that these
people who go to the hospital and don’t want to know their risks, fair much better
4. Emergency situation where patient is unconscious or incapable of consenting.

Negligence – Statutes and Regulations

Reasonable Person does NOT violate the law.

Would a reasonable person violate the law? In certain (special) circumstances you might
violate law and be reasonable but violating a safety statute is never reasonable.

Completely different circumstance than violating law :

A reasonable person can violate a statute if it is not a safety statute - when it has nothing to do
with injury - it can’t be used in cases dealing with risks in injury

A criminal statute is good evidence of what the people/legislature in society think ought to be
rules governing their behavior. A violation of a statute may be negligence per se. It’s a Strict

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Liability standard. Once you violate it, it’s Neg. PS. D cannot claim to the jury that their action
was reasonable.

Reasonable person would never violate safety statute so if facts show that D violated safety
statute then reasonable juror could never find that D did not act reasonably

Negligence per se: most courts apply the “negligence per se” doctrine: when a safety statute
has a sufficiently close application to the facts of the case at hand, an unexcused violation of
that statute by D is “negligence per se” and thus conclusively establishes that D was negligent.

Rule of law called negligence per se  permits P to get a partial directed verdict.

2 major exceptions to using Negligence per se to get a partial directed verdict -

• Violation of statute is not a safety statute
• No emergency/special circumstances

Steps to use a statute in negligence per se:

• Violation of a valid statute

• The statute is a safety statute
• Statue must apply to the facts
o P is in the protected class of people that legislature had intended to protect
o Whether P is injured in a manner that legislature had intended & foreseen (to
protect against a particular kind of harm)
• No excuse for violating (would need heavy burden for D to prove being that this is a strict
liability offense).
• Then one needs to show a causal link between the statute and the harm inflicted.

Negligence – Statutes and Regulations – Rules of Law:

Negligence per se you need 1. Violation of a valid statute; 2. Statute is a safety statute; 3.
person is in the class legislature intended to protect; 4. injured in a manner the legislature
foresaw and 5. No excuse for the violation.

A person found to have violated a statute that establishes a duty of care will be found to have
acted negligently, without other proof. (NEGLIGENCE PER SE)

Violation of a safety statute (speed limits).

Needs to be the injury that the statute intended to protect against (Gorris v. Scott).

 Without specific evidence of legislative intent to provide a private cause of action for
violation of a statute, courts cannot infer one. (THE LEGISLATURE, NOT THE COURTS,
MUST PROVIDE FOR A PRIVATE CAUSE OF ACTION FOR STATUTORY VIOLATIONS).

Violation of the statute needs to be the cause of the injury (Martin – headlights in front)

 Proof of negligence, even in the form of a violation of a statute, without a relationship

between the negligence and the injury, does not support liability. (CAUSATION MUST BE
ESTABLISHED IN NEGLIGENCE PER SE CASES)

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Don’t need to hold to a safety statute if it puts you in harms way. (Telda – wrong side of road)

Most cases a criminal actor is an independent intervening cause, but if the action that you take
makes it easier to be stolen, then the thief could be a dependent intervening cause.

Two arguments for a statute:

1. Defendant says not a safety statue, if not a safety statute its not negligence per se.
2. Plaintiff argues that it’s a safety statute and that it has a right of action.

Driving without a license is prima facie in NY, sufficient to get to jury, not negligence per se.

Under the automobile guest statute – a minority of states still have this statute – generally
provide that an owner/driver is not liable for any injuries received by his non-paying passenger,
unless the driver was grossly negligent and reckless.

Dram Shop and Social Host Laws

Dram shop liability varies by state; some states impose it on everyone who served a drink, even
the first bar. Some states only impose on bars who serve drunk people.

NY does not have a social host duty.

NJ imposes a duty to a social host.

Race Car Driver Hypo

F: Have a Defendant who’s a racecar driver, has a blow out and gets into an accident, he’s
driving 95 in the 55mph.
P: Says that it was a violation of a safety statute – negligence per se
D: says that he was operating at a reasonable speed (can stop quicker at 95 than most people
at 55).
H: A jury could find that he was driving reasonably, so we don’t let it get to the jury, its
negligence per se. Take the issue of violation of standard of care (breach of duty) away from
the jury so that the jurors won’t decide things that are illogical.
P wins, violation of the statute is negligence per se for this speeding case because a
jury could (erroneously) find that he was driving reasonably.
Charge jury that they aren’t supposed to decide the issue of standard of care, if they find he was
speeding then they HAVE to find that he violated the standard of care. It is the equivalent of
getting a directed verdict on the breach of duty. Jury just decides if the speeding was the cause
of the injury.
 Can charge the jury with two things, either saying if they find that they violated the
statute then you have to find causation/injury or you can tell them that the statute
was violated and that’s negligent and now they have to find causation/injury
Side Note: had this been in the early 1940s, this could have been a different case because the
speed limit wasn’t a safety statute, it was there to reduce the consumption of gas.

Gorris v. Scott (1874)

Safety statute to stop disease spreading in sheep population in England - bc it is a contagious
disease so sheep arriving don't infect healthy sheep Did D violate safety statute?

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F: Plaintiff had shipped a number of sheep with the defendant ship-owner who failed to pen
them in accordance with the requirement of the Contagious Disease (Animals) Act of 1869.
Animals were washed overboard in a storm.
P: Negligence per se, he violated the safety statute and breaking the statue was the CIF of
sheep falling overboard. If D would have followed statute sheep would be fine.
D: The statute wasn’t to protect the sheep from washing overboard it was to protect from
disease. Legislature intended statute to reduce disease and it has nothing to do with sheep and
storms.
H: If the injury that occurs is not the injury that the statute intends to protect against,
the plaintiff cannot recover on a negligence per se basis on a violation of the statute.

D wins because the injury that occurred wasn’t the injury the statute intended to
protect against did not happen. Even though there was damage and bc of violation of
statute it was the cause of injury to sheep BUT

Side Note: Issue of PC -*Kessler: P wants to use this statute as an excuse. By P proving D
violated statute they can get to the jury. Can’t get to the jury without the statute because there
is no proof of a violation of a standard. There’s nothing inherently dangerous about having sheep
on ships without being in pens. Not negligent in regard to obligation to keep the ship safe. By
arguing that they violated statute then P does not have to prove negligence i.e. that D acted
unreasonably. BUT P can’t prove D acted unreasonably b/c ships have been doing this for
centuries (custom). So P can’t prove conduct was Neg. w/out Statute. = Free rider
problem – P trying to get undeserved benefit bc the D happened to violate statute (b/c when
legislature created stattue they were ONLY concerned about spread of disease and no sheep ship
safety)

Ship owner creating two kinds of risk simultaneously

• Risk of disease
• Risk of sheep going over board
• ONLY ONE RISK VIOLATES statute -If that risk occurs then negligence
per se
• If that risk does not occur then not violating statute
o If that risk does not occur then P is trying to be a free rider and jump on that that
statute

Hobson Choice:
• This situation = Hobson choice
• CHOOSE between a broke down horse or walking
• Meant that you did not have any CHOICE
• Now it morphed a little and tends to be a choice between 2 BAD things.
• That’s what you have here.

R: D does not deserve our affection bc he still violated a statute. P does not deserve our
affection bc he is trying to jump on bandwagon of statute for damages unrelated…
No body deserves to win but system has to choose. SYSTEM has to go for system cost - less cost
-D wins

Issues with Gorris v. Scott:

• Defendant still did something wrong.
• But if every statute is the basis for negligence per se, people will be held obligated to do
things to protect interests that don’t need protecting.

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 • If those interests get injured because they didn’t do anything different, they will be
held negligent
• This will result in a Windfall profit

Dual policy problem

1. Shouldn’t collect because didn’t do anything wrong (captain did everything he could to prevent
them from getting swept overboard)
2. But he violated a statute and shouldn’t get away with it
Courts decided that stretching liability is more unfair than letting the statute violator
get away with it. Without specific evidence of legislative intent to provide a private
cause of action for violation of a statute, courts cannot infer one. (THE LEGISLATURE,
NOT THE COURTS, MUST PROVIDE FOR A PRIVATE CAUSE OF ACTION FOR STATUTORY
VIOLATIONS).

Drunk watchmen Hypo dealing with statute says that a barge has to have someone on board
to watch over it - D hired a drunk he fell asleep and nobody was watching - nothing happened to
other boats but it did cause a flood - which did not damage most people's houses bc they had
flood protectors but one did not who was 1/4 mile away…Is D negligent? Person that is injured
has to be within the people that the statute was meant to protect

Wawanesa Mutual Insurance Co. v. Matlock

F: D sold cigarettes to minors in violation of the statute. The minors lit the cigarettes in the P’s
storage facility and it set fire to telephone poles causing $100k in damage
P: Violation of the statute, negligence per se.
D: The harm of fire wasn’t the type of harm intended to protect against.
H: Applied statutory purpose. The statute was to protect minors from the harms of smoking, as
the statute stands today it is a health safety statute not a fire safety statute.
D wins because the statute protects against early smoking, not fire.

Martin v. Herzog
F: Plaintiff killed in a collision with a buggy, the buggy doesn’t have lights on the front of the
buggy per the statute.
P: Negligence per se, violation of the statute. (Contrib. per se)
D: Even if the statute was violated, the violation was not the cause of the injury because the
buggy was hit from behind and the lights are required in the front, so it wouldn’t have made a
difference.
H: The violation was not the cause of the injury, this is a jury question. (Grimstad with a
statutory violation). P’s violation of the statute – omission to perform a statutory duty could be
negligence per se BUT Neg PS does not make the D liable unless: P shows a causal link
between the negligence per se violation and resulting accident and the injury.
Ex. If D is speeding, Neg PS, but speeding wasn’t the cause of the injury. He will be liable, but
not Neg. PS. Statute must apply to the facts of the case.

Rule of Law You can violate a statute if it puts you in harms way

Telda v. Ellman
F: P walking on the wrong side of the road with her deaf brother. Statute says that you have to
walk on the other side of the road.
P: That they weren’t negligent, they had to walk on that side of the road.
D: Negligence per se, they were walking on the wrong side of the wrong in violation.

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H: Court found that it was a safety statute and it would be absurd to hold them to the safety
statute even if it would mean that they would put themselves at a greater risk of harm.

Some excuses for violating the safety statute; Not liable because you have a reason that the law
recognizes as valid; Excuse and Justification (self-defense) are defenses; Having a good reason
for violating isn’t enough

Brown v. Shyne--Licensing Statutes

F-P employed D to give chiropractic treatment although D had no license to practice, in violation
of public health law. P became paralyzed after receiving the treatment from the "doctor".
R-P must prove D failed to exercise the care and skill that would have been exercised by a
licensed practitioner. This may not be inferred from the fact that D was not licensed. Assume
that D acted as a reasonable Dr. D had to meet that std. even though he didn't have a license,
so he met the duty.
H: Violation of a licensing statute is not negligence per se. Cannot infer negligence from the
violation of the statute.
Today: Brown was modified. No license is now admissible for Prima Facie, not Neg PS
*Prima Facia: Creates a rebuttable presumption. Legally sufficient to get to jury. Enough to
prevent a DV.
*Admissible: Judge still looks at all the evidence, so DV is still possible.

Law in NY now:
• Violating licensing statutes in New York is prima facie negligence
• Prima facie negligence gets to the jury
• Sufficient evidence to get to the jury
• Enough to overcome a directed verdict motion
• Summers v. Tice
• This is similar to Summers v. Tice
• Switches the pragmatic evidence of proof to Brian (the defendant)
• Originally thought to be negligence per se (which means that there’s no evidence for the
jury, takes away from the jury, partial directed verdict on whether the issue of negligence
reaches the jury. The jury will still have to decide cause and injury) and now it’s a prima
facie (means that it gets to the jury)

Driving without a License Hypo

F: D is driving and doesn’t have a license. Driving at a reasonable and prudent speed, has a
blow out in a brand new tire. Car swerves and hits P, P has serious physical injuries and sues.
P: You don’t have a license and licenses are regular safety standards there you are negligent per
se. driving without a license is CIF of the injury b/c if following the law, you wouldn’t have been
driving at all.
D: Even if I had the license the accident would have happened anyways. Lack of a license isn’t
basis for Neg PS. (Not even admissible under Brown)
H: Depends on the jurisdiction, some say that violation of a licensing statute is not negligence
per se (NY), some say that it is negligence per se, but the jury will still have to decide cause and
injury. Licensing regulations are useful but not dispositive**Licensing statutes don’t mean you
are driving negligently - can't infer negligence from the violation of the statute. – prima facia (it
creates a likelihood of negligence so the jury should be aware of it ) – lack of license is enough
for it to get to a jury

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 Need to show causal connection between the negligence per se and the accident and
the injury
1. For negligence per se to apply : Yes I was speeding - or yes I did not have
license but this did not cause accident - or cause injury…

Social Guest / Party Hypo:

F: D has a party, only alcohol, no drugs. Buys a bunch of alcohol and leaves it on the table.
People drove to and from the party. Guest drives after she is obviously intoxicated, she hits
innocent bystander (P) who is severely injured. The drunk driver doesn’t have a lot of money
and the insurance won’t cover much, so P sues the host of the party, D.
P: Says social host
H: Depends on whether the jurisdiction has a social host law.

Coulter v. Superior Court H: There is liability on the social host

Klein v. Raysinger
H: There was no common liability on the part of a social host who served alcoholic beverages to
adults who later injured persons on the highway

Law in NY
• No Social Host
• Don’t know whether NY state applies the duty of protecting those on the road from drunks
to social hosts or limits it to professional sellers
• As of about 3 years ago didn’t apply to social hosts or open bars

Law in NJ
• There is liability on the Social Host

Law in Some States with Social Host

• Some states the duty extends not only to the person who buys, but also to the
person who consumes it
• In some jurisdictions this extends to Social Hosts

No Social Host Justification

• Independent intervening cause
• “Not my brother’s keeper”
• Not responsible for the actions of someone else
• Difficult when its not a bar because aren’t making money and can’t watch everyone

Social Host Justification

• Social problem, aware that people are drunk and the bar is making money off of it
and people are getting intoxicated and in accidents

Dram Shop Laws: Look at it in retrospect. Bar owner may not be able to tell if he is visibly
drunk, if he will be driving, if they will get alcohol from another bar— but still liable. So Bar’s
get insurance.
Employer: If u have open bar, not liable in NY, yes in NJ. Less control over someone w/ open
bar.
Homeowner: Person comes to house and gets drunk. Not liable in NY, yes in NJ.

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Notes on Social Host
• Bartender can cut you off, but can’t stop you from driving
• Lots of people with .08, .10 don’t look drunk at all
• Issue of equity toward bar / bartenders is solved by the fact they all have insurance

Vesely v. Sager: D owned tavern. Sold alcohol to co-D. He left bar, was in a car accident w/ P.
Dram Shop Laws Statute: Anyone who sells alcohol to an obviously intoxicated person is
guilty.
P- D has a duty of care to P or class of persons if which he is a member. Also, Neg PS
D-Bar owner didn't do anything to P. No duty. Didn't drive car, wasn't drinking. The driver was
an independent (not under control of bar when in the car), intervening (act came after bar) Act.
R-P is within class that statute is trying to protect, injuries were ones the statute tried to
prevent. D violated statute which is the proximate cause to P's injuries, so D was neg. in serving
alcohol to P. Not to mention the driver is liable also since intoxication is not an excuse and he is
held to the reasonable sober person standard. The driver should have arranged for someone
else to drive when he was sober (antecedent crap again).

Social Host Hypo 1

F: Bartender is behind the bar working. Patron has a drink, leaves and gets into an accident. She
blows a .18, obvious that she was drinking before she got to the bar.
P: Argues that the bartender shouldn’t have given her more, social host drink
D: Argues that he acted reasonably, that he didn’t know how drunk she was. Not everyone looks
drunk when they drink.
H: Jury finds that Ed wasn’t careful enough (if he didn’t see she was drunk, he didn’t do his
duty)

Superfreak drunk hypo Went to a bar and had 2 drinks in 1 hour. Then went to a house party
and had more. Then a final nightcap at Rocco’s bar. Then in an accident.
Ct: In NY, can’t sue the homeowner and bar owner will blame the house party. Rocco’s bar will
claim he was not obviously drunk when serving him, a defense under the statute.

Key in the Car Hypo:

F: Defendant leaves the keys in the car. Plaintiff gets hit by a car thief that has no money. So
the plaintiff sues the car owner.
P: Plaintiff says negligence per se, left the keys in the car. Says that the leaving of the keys is a
causal link.
D: Says that there’s insufficient evidence of a violation of the standard of care. Says that its not
foreseeable that the car would be stolen. And who says that the thief drives any worse than a 17
year old male driver.
H: There is insufficient evidence of a violation of a standard of care and it wasn’t foreseeable
that a thief would steal the car and that the thief would drive any worse.
A reasonable person may not foresee the car being stolen. Usually the criminal actor is
an independent intervening cause.

Key in the Car Hypo 2

F: Keys left in the car, parked in front of a candy store, at 3pm across the street from a high
school. Thief is 16 and doesn’t have a license.
P: Says that it was foreseeable and that the burden of doing something differently (taking the
keys out) would be less than the risk of injury.

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D: Says that its not foreseeable.
H: A reasonable person in the position of the defendant would know that the burden of doing
something differently (taking the keys out of the car) would be less than the risk of injury. A
reasonable person would have known that it was foreseeable that the car would be stolen by
someone too young to drive.
If it is foreseeable that the car could be stolen and you make it easier, then the thief is
a dependant intervening cause. Most cases a criminal actor is an independent
intervening cause

Key in the Car statute

• Not a safety statue
• Its purpose could be to remind people not to leave their keys in the car and this
would deter theft and bring insurance rates down.
• If its not a safety statute, no negligence per se
• Is a safety statute
• Need to look to see if its supposed to be enforced by a private right of action
• Is the manner in which the person was injured, the kind of injury in which the
statute was designed to protect against

NY is the only state in the country where the car owner is responsible for the negligent driver of
the car where it is leased

Rule of Law:
Without specific evidence of legislative intent to provide a private cause of action for violation of
a statute, courts cannot infer one. (THE LEGISLATURE, NOT THE COURTS, MUST PROVIDE FOR
A PRIVATE CAUSE OF ACTION FOR STATUTORY VIOLATIONS).

Uhr v. East Greenbush Central School District

F: The plaintiffs are suing the school district missing a diagnosis of scoliosis during a school test.
The issue is whether or not a statute creates a private right of action. And it depends on whether
it is a safety statute or not.
P: Says that the test is a safety statute.
D: Says that its not a safety statute.
H: the private right of action is inconsistent with the statute’s legislative scheme and therefore
cannot be fairly applied.
If a statute is a safety statute, it creates a private right of action. (Relation between how
much you are required to do and what the penalty is if you fail).

Negligence – Judge and Jury

Our legal system divides the responsibility for deciding questions of fact between
judge and jury

1. A divided system necessarily precludes the possibility that either judge or jury
takes complete control over the individual case unless both parties to the dispute waive a
jury trial
i. The division of the responsibility is not arbitrary
2. Total delegation of responsibility has been rejected for two reasons.

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 i. First: Judges fear that the jury might abuse its unlimited power by deciding
cases contrary to established principles of law
ii. Second: Judges believe that unlimited jury discretion repudiates or at least
undermines the central principle of distributive justice - that like cases should be
treated alike, no matter what substantive principles apply

Judicial Control:

• Defined: What is the proper balance between judge and jury in deciding cases.

• Judge: Judges decides law – and whether a reasonable people can differ as to
what the facts of the case are – if they could not then he dismisses the case or grants
a DV when facts are so 1 sided that "no reasonable men could differ". Judge must decide
if any facts have been established from which Negligence may be inferred.--> If yes,
goes to jury.
• Jury: Determine facts about which reasonable men can differ. They decide if 1.What
really happened (credibility of witness) and 2. Did D breach his duty of care in a way that
caused P's injury?

Whether someone acted carefully or not -Should be determined by community (jury)Judges

should take cases away from jury as little as possible. Community standard. What do we expect
the person to do or how we expect them to act in that situation.

Judge and Jury – Rules of Law:

Judges should only make rules when they have a lot of experience. Restatement §8 says that it’s
dicey for judges to make rules.

Creating standards protects against potentially unreasonable jury verdicts.

Role of jury is to look at the facts and decide if the defendant violated the standard.

Baltimore and Ohio R.R. v. Goodman:

F: Plaintiff gets hit by a train while crossing the railroad tracks.
H: Court created a special duty that people who cross RR have to protect themselves i.e. duty to
stop, look and listen (SLL). Courts created a fact specific rule (FSR) for this case. Courts were
concerned with allowing a P that was negligent recover for negligence. The plaintiff didn’t stop
look and listen so he’s contributory negligence. Courts played role of legislature.
Note: In B. & O. Railroad the standard is a judge specific standard of conduct
When crossing a train tracks you have to “stop look and listen”

Benefit of Fact specific rule: Provides consistency in making sure certain types of cases are
decided in certain ways. Easier for directed verdict for the D. Right rule for the act.
Ex. Usually for DV— Can RP differ, on preponderance of the evidence, that D was negligent?
With ct’s FSR —Did the P SLL before crossing the RR tracks and Can RP differ if person
SLL?

Rear Ending Hypo

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F: P is driving his car, he stops suddenly. After he stops D smashes into him. P sues D.
P: Doesn’t want the case to get to the jury, wants the judge to say that if you hit someone in
the rear that it’s your fault you are negligent (specific standard of care)
D: Says that its not negligence per se and it’s a question for the jury if you are on a highway
and keeping up with traffic, it is the reasonable thing to do (65 in a 55)
P: (Doesn’t want a jury b/c it will most likely sympathize with ∆ because everyone drives over
the speed limit) use B&O (stop, look & listen)- should have a specialized standard of care You
should not hit another car in the rear – there is no issue of fact here except if it caused injury…
should we keep the jury involved?
H: Judges can take the case from the jury if they find that the defendant violated a specific
standard of conduct. This is done because juries can be inconsistent and irrational. Irrational
jury decisions can be avoided by creating a standard.
A standard that conforms with our general experience
• i.e. if you hit someone in the rear, you are liable and the defendant should be
found negligent
• standard is keep far enough back (NOT to keep a reasonable distance)
Judge will decide whether the Defendant is negligent.

P will win if no reasonable jury could disagree that the defendant was negligent. [This is like
Grimstad, but Grimstad dismissed the case for insufficient evidence. Grimstad could be looked at
the other way around, that there was so much evidence that it had to be dismissed]
If the standard is to keep a reasonable distance then this would be a question for the
jury. If the duty is to keep far enough behind so that you can stop then this would
make it easy for the judge to find negligence and a violation of duty and take it from
the jury.

Pokora v. Wabash Ry.

F: Similar to B&O and the plaintiff did SLL.
R-P can’t see everything. Jury should decide if conduct was suitable for the situation where
the ordinary safeguards (SL&L) failed him. Ct has no problem doing this b/c SLL is a judge
made law.
H: Overruled B&O. Said that the rule was stupid and it caused more harm than good. In 1927,
you didn’t have all that vast amount of experience of cars crossing railroad tracks and when you
don’t have a lot of experience don’t always make the best rule. By the time you would look and
listen the train would be coming.
When courts don’t have a lot of experience they shouldn’t make rules. Overrules the
Stop, Look and Listen Rule. B&O and Pokora – change in the standard of care

Toschi v. Christian "stop look and listen" rule (Baltimore & RR v. Goodman) - urged by Ds will
not be applied to factual bases where its application would be unreasonable

Pakora is followed in the Third Restatement: which rejects the idea that uniform rules can
decide concrete cases:
o What looks at first to be a constant or recurring issue of conduct is which many parties
engage may reveal on closer inspection many variables that can best be considered on a
case by case basis (RTT:LPH 8, comment c)

Jewell v. CSX Transportation, Inc.

F: Jewell killed and his wife and daughter injured when struck by a train. Crossing was
maintained with no lights, bells or mechanical gates.
P: says that CSX was negligent in failing to sound a warning

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D: says that it wasn’t ultra-hazardous
H: Court said that since the crossing had no physical obstruction that prevented sight or sound,
it was not extra-hazardous. Whether the whistle should have been blown was a question for the
jury. Trial court gave a directed verdict about the lack of evidence for an extra-hazardous
crossing and the jury verdict for CSX were affirmed.
Only ultra-hazardous activities railroad crossings need to have lights, whistles, etc.

o Can create stupid rules, but you can also create good rules, if they are applied
correctly
• Courts are hesitant to apply them

The Restatement §8: Says that it is dicey for the courts to make rules and should only be
done on a case by case basis and the court should be cautious when they use them.

o Can think of situations in the rear ending case that the defendant shouldn’t be
responsible
• For instance if the breaks fail

Dirt Road Wrong Side of the Road Hypo

F: Dirt road, two lane road. Tire tracks with grass in the middle. Head on collision.
P: “wrong side of the road, negligent driving”
H: Plaintiff wins, defendant was negligent.

Dirt Road Wrong Side of the Road Hypo 2

F: Same dirt road, same accident. Now the passenger is suing the defendant driver. The
road was really worn on the wrong side, so worn that grass didn’t grow where the tracks were.
Many people drove down the same path and few could have driven elsewhere because of the
grass.
P: Says negligent driving, wrong side of the road.
D: says guest statute.
Note: Guest statute prevents fraud between a driver and a buddy where the buddy would sue
and get the money from the insurance company. Might have been negligent, but couldn’t be held
to be so aware of the risk that he was recklessly disregarding the substantial chance of injuring
people
In jurisdictions that have the guest statute the driver is only responsible for recklessly
caused injury to a passenger that is not a copartner in the trip. In this case it wasn’t
reckless because though he knew he was on the wrong side the road was so worn that
he had no reason to know it’s dangerous (might have been negligent).

Guest Statutes in Automobiles: Only in a FEW states: If a non-paying passenger in a car is

injured and sues the driver, the driver is not liable UNLESS he is Grossly negligent, reckless,
willful, or wanton. Most: Guest is owed a duty of ordinary care.
o Standard of care when plaintiff is in another car (not a guest or in a jurisdiction
without a guest statute) is negligence
o Standard of care when the passenger sues the driver is recklessness

5 typical standards of care

• Negligence, gross negligence, recklessness, willful and wanton, intentional conduct
• Reckless suggests a different culpable mental state
• Greater awareness of the risk

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Jury Determination in FELA cases:
i. Juries are given broad discretion in suits for industrial accidents brought under the Federal
Employers' Liability Act (FELA)
1. FELA makes every interstate railroad liable in damages for injuries to its employees
cause by the negligence of the RR though any of its officers, agents, or employees "
a. "or by reason of any defect or insufficiency" in any of it premises or
equipment.

Wilkerson v. McCarthy P slipped on board into pit while working. FELA doesn’t allow
Contrib. Neg.
I-Without Contrib., was the RR negligent or did they put up enough signs?
R-Question goes to the jury. Many arguments on each side about if the signs were
enough. Since there is evidence D may be negligent, no DV allowed, reasonable people
could differ since RR knew people didn’t pay attention to the signs and walked there
anyway. D was aware of unsafe area.
Contrib not a defense – FELA – eliminated assumption of risk in all its forms and provided
that contrib. neg should not bar an employee’s action…

Negligence - Res Ipsa

The doctrine of res ipsa loquitur – allows P to point to the fact of the accident, and to
creat an inference that, even without a precise showing of how D behaved, D was
probably negligent.

1. Defined: "The thing speaks for itself".

2. Is frequently invoked when the plaintiff seeks to establish the defendant’s
negligence by circumstantial evidence.
3. Sometimes the mere fact that the accident having occurred is evidence of
negligence.
4. The function of res ipsa loquitor is to aid the plaintiff in proving the elements of a
negligence case by circumstantial evidence.
5. Usually res ipsa allows the plaintiff’s case to reach the jury. In some (very rare)
instances, however, the evidence is strong enough to support a directed verdict (Newing v.
Cheatham—the court ruled the circumstantial evidence in the case was sufficient to take the
case from the jury and to direct a verdict for the plaintiff).
6. Non-delegable duty—applies when the conduct is sufficiently dangerous so that
it’s different from normal activity.
7. Multiple Defendants—(Res Ipsa + Summers v. Tice) the D’s unconscious and the
doctors and nurses are responsible for making him unconscious.

*Kessler, only need to prove 2 & 3.

Three requirements to prove: (to get to jury) – no direct evidence of D’s conduct – how D
behaved in connection with the event

1. Event does not ordinarily occur without negligence

2. Not do to any action on the part of the P - other responsible causes, injury could not have
occurred without negligence of D

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 3. Thing that caused the injury must be caused by an agency or instrumentality within the
exclusive control of the defendant (Indicated negligence was within the scope of the
defendant’s duty)
⇒ Exclusive custody and control of item

By proving A (specifics of what happened ) you are proving B (proving that D must have done
something that caused injury and what he did must have been negligent)

This doctrine helps P get to jury

• Change of prior rule of law enabling Ps to get to jury
• You can find him liable without figuring out what he did.

D’s possible defense:

• I showed due care: although just being careful will still get the case to a jury (BUT they
won’t be able to give D a directed verdict against him if he proves he was careful)
• Offer alternative explanation besides Ds negligence.
• Show that injuries happen without anyone’s negligence.
• Show D had no control over the situation or someone else did.
• **If D can disprove one of the requirements of the doctrine – aka “wasn’t within my
control at all relevant times” then D will get DV (assuming there is not a prima facie case
apart from res ipsa)

Overview of Res Ipsa

• Gets you to the jury, In a few jurisdictions gets a directed verdict.

• Allows you to Prove A (which is that the defendant did something wrong) By proving B (if
B exists then you can infer A)
• Not an alternative proof like in Summers v. Tice
• Can’t ever prove which one did it, so switched the burden of proof to the defendants if the
plaintiff met the burden of production

Allows you to avoid proving exactly what the defendant did wrong, but is enough to
prove that he must have done something wrong (negligent)

That the burden of doing something different would have been less than the probability of
injury!

• Has a name for two reasons,

• 1. because we are going to let P get to the jury without proving exactly what D did
wrong (could have done a number of things wrong)
• 2. decided that this frequently arises (this kind of fact set) that we don’t want to
take the risk of idiots (like judges) that this type of case falls within a certain type
of circumstantial evidence
• Don’t have to prove which one D should have done differently, if we prove the
elements of res ipsa

Res Ipsa – Rules of Law

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To use res ipsa: 1. Event does not ordinarily occur without negligence.
2. other responsible causes, including the conduct of the plaintiff and third person are sufficiently
eliminated 3. Thing that caused the injury was in the exclusive control of the defendant
(Indicated negligence was within the scope of the defendant’s duty)

Res ipsa gets you to the jury not a directed verdict, plaintiff can now win on inference because
the jury is allowed to infer negligence.

No duty to inspect when you have reasonable expectation that it will be safe. (chair and coke
bottle)

**Res ipsa doesn’t apply when you have no notice that it could happen, then you have no duty.

The injury must be foreseeable for res ipsa to apply (Larson & Connelly – the two chair
thrown out window cases)

**Res ipsa applies when you have notice of an event that could get out of control because you
can do something about it, have a duty to prevent it.

4 Corner Truck Accident Hypo

F: 4 corner intersection. P is standing on corner. D is driving the truck. For some reason, truck is
starting to make a left turn and hits P. P suffers broken ribs and concussion. Investigation after
shows that the front hub cracks, breaks, and comes off. This is why as a result of that the truck
goes through the intersection and hits a pedestrian. Q. How is X going to prove Y’s
negligence? – where is she going to find the facts, who is going to testify to the facts,
etc... Parties involved: Driver, Truck company, Manufacturer.
P: Sue the owner of the truck for failing to maintain his vehicle. Say that it was negligent
maintenance of the vehicle.
D: Will say Truck was properly maintained fine. I have proof. I drive great. (Will need an
expert to say that there was nothing wrong with the truck from the beginning).
Note: Would start off suing the driver and then would sue the manufacturer.
FYI: B/c P will sue driver and truck company first that truck wasn’t maintained properly by
finding out infor about rim maintenance and possibly introducing an expert – but this cost
money so P will want to get to the jury on RIL – he will convince judge by possibly easing proof
by switching the duty – to sue on negligence per se b/c there must be a statute not allowing a
driver to drive on the sidewalk – but P will claim he wasn’t driving on sidewalk not fair (also did
driver have “exclusive control”? Not sure - so not a good argument to get to jury. P will sue
manufacturer – b/c they are always open targets 
H: Res ipsa, this wouldn’t have happened without negligence, would need to prove that D didn’t
do anything or wasn’t caused by third party and exclusive control. All we know is that the core
of what happened is not something that is supposed to happen and generally does not happen if
someone is careful. This alters the burden of proof.

Bryne v. Boadle
F: P was walking along street passing D’s shop when a barrel falls out of a window and hits the
plaintiff injuring her, plaintiff doesn’t know how it fell.
P: Doesn’t know how it hit her but says D is vicariously liable for employees and alleges res ipsa.
D: Not responsible and didn’t do anything negligent. Could have been someone else – no proof it
was one of my employees.

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H: P wins on RIL – it is circumstantial proof of negligence – but circumstances lead to the
inference. Court ruled that the barrel was in the custody of the defendant, they were
responsible for it and where the P cannot prove anything, it is up to the D to prove
that they weren’t negligent.
⇒ Res ipsa gets it to the jury, 1. the barrel could have been pushed, dropped on purpose,
stacked improperly, etc. (had to be the negligence of the D, couldn’t have happened
without negligence), 2. It was in the exclusive control of D and 3. The Plaintiff didn’t
contribute, didn’t do anything to make the barrel fall.
Res ipsa gets to the jury. The barrel wouldn’t have fallen without negligence, it was in
the exclusive control of the defendant and the plaintiff didn’t contribute.

Honea v. Coca Cola

F: Guy works delivering bottles of soda. Has a wooden carton to carry it, he takes two bottles
twists them and uses as levers to pick up the carton. One of the bottles explodes and causes lots
of injuries. There’s two ways it could have exploded: 1. carrying it wrong or 2. faulty glass or
bottles could have been made wrong.
P: Says it was in the exclusive control of Coke – RIL.
D: Doesn’t have exclusive control and custody.
H: It was in the exclusive control of Coke, the guy that is working isn’t supposed to inspect it for
defects. The mechanism for inspection is in the exclusive control of the defendant, the inside of
the bottle was in the exclusive control of Coke.
Res ipsa to get to the jury because the plaintiff isn’t responsible for the inside of the
bottle or the inspection mechanism (need someone to testify that this is the way that
they always do it). Doesn’t matter if P had current “possession” over the bottle – D
was responsible for maintaining it and making sure that bottle was in a reasonably
safe position.

Benedict v. Eppely Hotel

F: Woman is sitting on a chair and was injured when a folding chair collapsed after she had been
sitting on it for some time. After the accident, it was discovered that some screws and bolts
were missing.
P: Says that she didn’t do anything wrong, she testified that all she did was sit on it
D: Says that they weren’t in exclusive control or custody – she was the one using the chair and
in possession o fit at the time of the incident.
H: Application of res ipsa loquitor was allowed because, while plaintiff was using the chair and
was in possession of it at the time of the incident, the hotel had ownership, possession, and
control of the chair under the circumstances and was obligated to maintain it in a reasonably
safe condition. (they gave her the chair)
Res ipsa gets to the jury because the plaintiff doesn’t have the duty to inspect.

Rule: For possession, do not mean custody and control. D’s still have constructive, custody and
control over the internal parts you cannot see. Not immediate control over the object.
In Coke: Call customs witness to explain bottle thing and could only happen due to that custom.

Larson v. St. Francis Hotel, 188 P.2d 513, 515 (Cal. App. 1948)
F: Chairs being thrown out of the window in a celebration at a hotel, the plaintiff gets hit with
the chair.
P: Negligence in not supervising what guests do with the furniture. Says they have a duty and if
they aren’t doing their duty if the chair comes out the window. Management allowed the party to
continue even after they knew what was going on – they had ample notice of the antics - they
had a duty to take a reasonable standard of care – RIL because they had a duty to control the

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party in the hotel, and they did nothing…the chair coming out the window was a result of the
management doing nothing RIL.
D: Says they had no notice, it was a surprise. It wouldn’t have made any difference if the ∆ did
use reasonable care because some events happen anyway
H: NO RIL! Res ipsa doesn’t apply because they had no notice b/c chair flew out during surprise
celebration. Not in the “ordinary course of events”, guests have partial control. B is too
high to put guard at every window!
***Res ipsa dosen’t apply when you have no notice that it could happen, then you
have no duty.

Connelly v. Nicollet Hotel

F: Again the plaintiff is hit by a chair, but this time there was a convention (a planned party) and
the defendant was warned that they might get rowdy.
P: Res ipsa, and they had a duty because they knew.
D: Not res ipsa, not in their control.
H: When you are on notice of an event that could produce accident, RIL can apply. Res ipsa
applies with the wild party because they had notice to do something more carefully
Res ipsa applies when you have notice of an event that could get out of control
because you can do something about it, have a duty to prevent it.

Res Ipsa with Multiple Defendants

Rule of Law: Multiple defendants with res ipsa

Cannot use res ipsa on multiple defendants, you need to have the defendants turn on each other
because you can’t prove exclusive control (wooden shoe sign hypo)

Wooden Shoe Sign HYPO

F: Store owner has a big shoe sign put over her store. An architect draws the plans, the contract
puts it up and the store owner rents the space from a corporation. The shoe falls and hits
someone on the head causing serious injury. Examination reveals that a bolt was sheared so
could be architect of sign’s fault, maker of the sign, landlord of building in charge of upkeep.
Who do we sue?
P: RIL – MY injury could not have happened but for the negligence of the landlord’s faulty
upkeep. Sues everyone: Building owner didn’t properly maintain it. Architect made a bad plan.
Contractor put it up wrong. And the Store owner (but she’s hard to sue because master /
servant doesn’t apply to independent contractors).
D: All of them say it wasn’t me.
H: Can’t use res ipsa against multiple defendants because you can’t prove it was in
control - exclusive control of the D if there are multiple Ds. , so you use all the other
Ds to get it down to one D. Have the other defendants prove each other out and use it
against the one that you have the best case against
⇒ Use the lease to show that landlord has the exclusive custody/control of
inspections. Have architect, store owner and sign maker all explain they acted
perfectly. Landlord only one left!
⇒ P-RIL: My injury couldn’t have happened but for the Neg. of the landlord’s faulty
upkeep.

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Additional: On non-delegable duty could go either way. Delegable because it’s not a issue of
public safety, doesn’t have a large potential for danger. Or could say that it’s non-delegable
because it’s for the public.

Also res ipsa with alternative liability doesn’t apply because none of the defendants stopped
him from seeing what happened or caused him to go under the sign.

Res Ipsa - Non-delegable duty

Rule of Law: Non-delegable duty

To have non-delegable duty you need: 1. Sufficiently dangerous; 2. exclusive control; 3. They
know it’s dangerous. (Colmenares – escalator)

• Applies when court decides that sufficient danger to justify it’s application
• Conduct / instrumentality is in exclusive control, and try to avoid negligence responsibility
by saying you relied on someone else
• Notice situation, since they know it’s this dangerous, it’s not unfair to make them
financially responsible
• Perfect example of non-delegable duty is when you have an elevator that goes 20 floors,
you cannot delegate the responsibility to maintain the elevator to someone else

Miles v. St. Regis paper Co. (non-delegable duty)

F: Decedent was unloading logs that are all tied together. While in the process the train moves
and dislodges it and kills him. Decedent works for the D Street company that told the engineer
of the trial to move the train, engineer relies on D Street. Not suing the D Street Company
because he works for them and cannot sue them because of worker’s compensation. Sues the
employee (actually the railroad because the railroad is vicariously responsible for the actions of
their employees)
P: Negligent in moving the train
D: I was told to, I acted like a reasonable person in my position. He relied on the experts (the D
Street Company) to tell me when to move the train
H: Movement of the train was in exclusive control of the movement of the rail road. Because
driver moved train on reliance of the men; court says RR could not delegate authority
and could not rely on anyone Doesn’t matter if it’s reasonable for him to move because in
certain limited circumstances the courts have decided that the defendant is involved in conduct
that is so dangerous that they cannot rely on other people for safety. In this case moving the
train is so dangerous (so heavy and move so fast) that it is unreasonable to rely on anyone else
to make a decision.
The movement of a train is res ipsa with a non-delegable duty because it is too
important to delegate to anyone else.

(Simply stated) Colmenares Vivas v. Sun Alliance Insurance Co.

F: Plaintiff was injured on a escalator.
P: Says res ipsa
D: says that they have a contract for the maintenance
H: The maintenance cannot be delegated. Maintenance of an escalator is a non-delegable duty.

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Colmenares Vivas v. Sun Alliance Insurance Co.--Application of RIL
F-P riding escalator in airport when handrail stopped moving while foot platform continued to
move. P tumbled down steps and was injured. Port Authority and their Insurance Co. were D’s.
D tried to sue Westinghouse who was contracted w/ Port Authority to maintain the escalators.
P – Res Ipsa – but for the failure to maintain the escalator properly I suffered injuries.
Element 1: Injury is ordinarily the result of negligence
a) Handrail on escalator would not stop working w/o negligence.
b) Hint: When there is a mechanical problem, makes a prima facie case for
negligence
Element 2: Exclusive control
a) Maintaining escalators in a public area is a non delegable duty: 2 possible situations.
Doctrine of non delegable duty, expanded version of D
1) Where there is a public authority maintaining a public area
2) Business invitees: the owner of the premises is responsible, and not the
individual person who made the mistake.
D claims & loses: We are responsible to take reasonable precautions to make sure escalator is
safe. It would be negligent for us to do this our-self, so we hire someone who takes on this
responsibility. We did everything we should have.
H: The maintenance cannot be delegated. Maintenance of an escalator is a non-delegable duty.

Rose v. Melody Lane

F: Stool in a soda fountain and sits on the stool and the top falls off
P: Says that it’s a non-delegable duty – res ipsa.
D: Says that it wasn’t in their control they didn’t make it.
H: Cannot rely on the manufacturer (before product liability). Need to ensure for the catastrophe
yourself.

Big man/little stool HYPO

F: A “big” man sat on a stool in a store and the top of the stool came off. He fell and sustained
substantial injuries. No one knows what cause the stool to fall because scientific knowledge was
not very sophisticated. We are suing the store. No evidence that either the π or ∆ did anything
wrong.
D – we did everything we were supposed to do, we bought the best stools and we did everything
we’re supposed to do to upkeep the stools.
P – Rule from Colmenares – non-delegable duty to maintain
H: In some circumstances, reasonable conduct is not sufficient because then it leaves the P with
no one to sue. Takes away the defense that the D acted reasonably by hiring an expert to
maintain b/c of non-delegable duty.

The Coke Bottle Example

F-Coke makes the syrup and supplies it to bottling co., to seal and package the bottles. Bottler
is not Coke, hires delivery trucks who transport bottles to the restaurant storage room. Waitress
opens a bottle and it explodes in her face. use RIL to sue Coke??
P- but for the poorly designed coke bottles my injury would never have happened - RIL
Element I: Ordinarily a negligent act
⇒ Prove coke bottles don’t explode unless a negligent act by someone
Element II: Exclusive control
⇒ Put affirmative evidence that truck driver is not liable, eliminate as a D
⇒ Eliminate bottler as a D by testing whether the bottle is designed improperly.
o Compare to Colemnares: Coke’s duty to the public is non-delegable. As the
escalator is used in a public place, coke is used in public restaurants. The public

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 doesn’t know all the distribution processes, it just know this is coke. Just like public
knows this is the port authority; it doesn’t know who maintains the escalators.
Accessibility of Information
⇒ First associate the bottler w/ Coke through the doctrine of non-delegable
duty and then argue that this expanded version of the D would have better access to what
went on in the bottling and transportation operations than would the waitress. This
disparity is enough B/c it’s similar to Ybarro where the doctor’s knew who performed the
negligent act. Here, by holding Coke responsible, it may help in finding who is specifically
responsible for the negligent act.
⇒ Furthermore, in this case, the waitress doesn’t know who performed the negligent act.
She’s like the unconscious P in Ybarro b/c it is impossible for her to know who caused the
act b/c she is a laywoman and does not know the coke process. Coke has the
information, as the doctors had the info to know who committed the negligent act. So
since D and not P had access to this information, RIL should apply.
Defense: BPL- Coke can argue that the probability of this occurring is so low that the burden to
redesign a bottle or manufacturing process would be too great. So they are not negligent.
P – rebuttal - But P would come back and say a warning label would cost very little, low B. So
D is negligent, and did not act reasonably for not putting on a warning label.

Res Ipsa – Departure from Exclusive Control (Hospital Rule)

Rule of Law: Hospital res ipsa

1. Not reasonably foreseeable consequence of the surgery; 2. Don’t know how the injury
occurred (unconscious); 3. Plaintiff wasn’t contrib. 4. Simultaneous conduct.

Someone must be found liable and if no one is liable it’s the captain of the ship (head surgeon).

It is res ipsa, alternative liability and non-delegable combined.

Hospital Hypo:
F: Patient being operated on by a surgeon. During the surgery, the patient has substantial
bleeding. They stop the bleeding, but because of the loss of blood he becomes anemic and that
leads to further problems and eventually he’s dead.
P: Says Res ipsa (needs to know if he did anything wrong, if bleeding usually occurs, etc. first)
D: Didn’t do anything wrong
H: Not res ipsa because it has to be in the part of the body not involved in surgery.
To use res ipsa in a medical situation must have an injury that isn’t in the foreseeable
risk of the surgery, and must be on a body part not involved in the surgery. Non-
foreseeable, and don’t know who did it.

Ybarra v. Spangard – Departure from exclusive control

F: Plaintiff goes in for an appendectomy and ends up with a shoulder problem. 3 doctors,
nurses, & anesthesiologist all worked on P. When he awoke, he had a sharp pain in
shoulder which he never had before...
P: Says doesn’t know who did it, I was not awake during surgery - but has to be negligence. If
anyone knows who did it the doctor’s know.
D: all say that they didn’t do it and don’t know who did.

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H: Not fair to the plaintiff because he’ll never be able to recover because he was unconscious.
Not fair because he can’t prove it (like Summers v. Tice, but not causation, on negligence
instead)
• 1. If anyone knows who did it, they know
• 2. Their conduct was done simultaneously
• 3. The injured shouldn’t be denied relief
In surgery cases Res ipsa applies and the burden is switched, the defendants can prove
themselves out and if the jury can’t figure it out then it’s the surgeon (because he’s the captain
of the ship). Chief surgeon is in charge of operation and others can be sued under
RIL. Med. personnel have better access to evidence and information than the patient,
and if they remain silent, RIL smokes out the evidence.
⇒ Use Summers v. Tice to switch the burden to D. But someone has to be responsible for all
of them - can’t prove themselves out. (Combination of res ipsa and alternative liability).
Defendant’s conduct stopped plaintiff from getting the information he needed.
⇒ Use RIL to prove negligence-->P was unconscious; injury to unrelated part of body,
injury isn’t ordinary unrelated side effect. NOW, who did it? With 4 D’s burden on them
to show it wasn’t them. Doctrine of respondent superior so that SOMEONE is held liable if
the jury believes all Ds –the person in charge is held responsible.
⇒ **Special Rule: Key fact is Unconsciousness and it’s not a known risk. And it is a
policy that the ∆s are in a better position to know. Heightened duty b/c of
helplessness.
R-It is unreasonable to insist that P, who was unconscious, could identify negligent D.
Concert theory: Unit of doctors & nurses had exclusive control over the situation.

Anderson v. Somberg (N.J. 1975)

F: When operating, scalpel breaks. Dr. slips and damages P’s spine, P paralyzed. P sues Dr.,
hospital and manufacturer. Took breaks in patient’s back during surgery. It could have been the
manufacture for making it, physician for negligence, hospital for maintaining it, previous
surgeons could have broke it (Like DES case).
P: Someone did it and I was unconscious so I don’t know who. Manufacturer had to build a
surgical instrument that wouldn’t break and can’t delegate checking to someone else. Doctor has
duty to not use a broken instrument and can’t delegate checking to another doctor. Either it had
a manufacturing flaw from the beginning OR it got damaged on that day OR it got damaged in
the operating room on another day
D: All say not me
H: Jury-Found for D b/c under RIL, need exclusive control. Someone has to be responsible,
initial jury found none of them responsible. On remand found against the manufacturer because
they are least sympathetic - holding that the jury was obligated to impose liability on at least
one of the named defendants. (conditional res ipsa)
App. Ct.: One of them has to be liable. When the P is incapacitated, someone must be
lacc. to RIL. *Usually will choose manufacturer: Most money w/ insurance and least
sympathetic.

In operation, res ipsa cases, someone must be responsible.

Combine res ipsa with non-delegable duty and alternative liability. Defendants can’t
say not me, it was someone else because its non-delegable (reasonable conduct
doesn’t count)
All the parties might not be named, didn’t name every doctor that could have used it (like in
DES when didn’t get all defendants, its alternative liability/burden switching).

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 Res ipsa, non delegable duty and alternative liability
• Doctor’s can’t delegate the duty of prior surgeons
• The manufacturer can’t delegate the duty of making non breakable instruments
• Non delegable duty is a kind of res ipsa, but not the standard ipsa

Alternative liability – switches the burden of proof & Res ipsa

• Must act communally, one must have caused the harm
• Person was unconscious so doesn’t know who did it
• And the injury wouldn’t have normally occurred

Non-delegable duty doctrine is typically limited to dangerous situations

Critical Factor –not a foreseeable consequence of the original surgery, this shows an inference
of wrong doing (negligence)

Brain surgery Hypo

F: P has to have brain surgery. There’s an enormous amount of pressure. Can’t relieve the
pressure and he gets brain damage.
H: Can’t sue under Ybarra because it’s a foreseeable injury from brain surgery (foreseeable side
affect, so you don’t know that they are negligent)
If the injury is foreseeable can’t sue under res ipsa with alternative liability because
you do not know if they were negligent.

The legal structure has generally accepted Ybarra in many jurisdictions, but have been
extremely hesitant to apply it to anything but a person who is unconscious under
anesthesia : Almost a medical malpractice Rule

III. PLAINTIFF’S CONDUCT DEFENSES:

1. Violation of a standard of care

2. Proximately causing injury

P has the burden of proving negligence.

3 Defenses to Negligence: (Plaintiff’s conduct)

1.Contributory Negligence- any amount of fault on part of P that causes the P’s own injury
will cut off his right to recover against the D.
2.Comparative Negligence- recovery for the P is equal to the amount of damages he suffers
minus those damages attributable to him or in essence the amount of his fault causing the
relationship. Here the P will recover the percentage to which he did not contribute.
3.Assumption of Risk- P recovery is cut off entirely if he voluntarily encountered a known risk.

Rule of Law: Contributory Negligence

Contributory Negligence : at common law, the doctrine of contributory negligence applies.

The doctrine provides that a P who is negligent, and whose negligence contributes proximately
to his injuries, is totally barred from recovery.

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In jurisdictions that have contributory negligence if the plaintiff is one 1% contributory negligent
then they cannot collect.

Court held that contributory negligence is not necessarily a complete bar to recovery
when the negligence of the defendant is what caused the injury. Plaintiff was not the
proximate cause. So P has to be PC of injuries to be Contrib.

Contributory Negligence :
• To change the natural order of things someone had to act morally wrong (criminal,
intentional, negligent) but can’t help someone else who has also acted wrong (they don’t
have clean hands)
• Individualist values, things are supposed to happen (Devine/God/etc.)
• Complete defense at common law (if the plaintiff was contributory negligent, couldn’t
collect anything)
• This changed over times for two reasons:
1. Insurance (not taking from the person, taking from a company and everyone
pays) and
2. Some people were only slightly negligent while the defendant was super
negligent and the plaintiff couldn’t collect at all.
• Has a deterrent aspect, encourages people to mitigate their risks and to act responsibly so
they won’t be contributory negligent.
• Began to lose favor because someone who did something minor (like jaywalking) couldn’t
recover if hit by a car because of contributorily negligent.
• Now, contributory negligence defense only applies where P’s negligence contributes
to the PC of his injuries. If P’s negligence is not a BUT FOR cause of his subsequent
injuries then he is not contributory negligent.
• The universal modern rule is that the defendant bears the burden of proof on the
issues of contributory negligence and its causal relationship to plaintiff’s harm.
• New York does not completely bar plaintiff’s recovery for contributory negligence.

Claims against which contrib. defense not usable: Since the contrib. negligence defense is
based on general negligence principles, it may be used as a bar only to a claim that is itself
based on negligence!
⇒ Intentional torts – defense not applicable if Ps claim is an intentional tort.
⇒ Willful and wanton – Ds conduct is found to have been willfull and wanton or reckless
the contrib. neg. defense will not be allowed. (but if Ds negligence is merely “gross” –
contributory negligence usually will be allowed) - the idea is that the defense does not
apply where D disregards a conscious risk.
⇒ Negligence per se when P is protected class – contrib. neg. can usually be asserted
as a defense even to Ds negligence per se i.e. his negligence based on a statutory
violation – but if the statute was enacted for the purpose of protecting a class of which P
is a member, contrib. may not be asserted as a defense)

Karate jump hypo L jumps at car coming at her. She thinks that the only way to avoid it
hitting her is by doing this. Car was driving fast & close, but if she didn’t jump, it wouldn’t have
hit her. 2 CIF: L jumping up and the D driving dangerously. *Misconduct by both, same nature,
acted unreasonably, leading to injury.

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Common Law Rule: Bars a right to recover for P. CN was an absolute Defense. If the P acted
in a negligent manner as well, aka jumping at the car she will get nothing regardless if D was
speeding. Come to court with clean hands!
If both hurt, whoever was hurt the most will be the one suing. Whoever sues first is the plaintiff
– then there will usually be counter claims, etc. With CN< both will pay for their own injuries.
This is a Deterrent factor b/c if P won, deterrence from acting negligently.

Stair Hypo: Dangerous stairway that you shouldn’t be walking on, building collapses and causes
injury – not contrib. because the contrib. negligence was not the cause in fact of the injury
Common law: B was less negligent, but still neg, so you get nothing. Then it changed.
Negligence Per Se: If A breaks a safety statute, B’s CN isn’t a defense and A is liable.

Leroy Fibre Co. v. Chicago, Milawaukee & St. Paul Railway -(RR cause flax to burn)
F-P stored flax on his property about 70 ft from RR’s right of way. D, RR, had negligently
operated RR by allowing it to emit large quantities of sparks, causing P’s stack of flax to be
destroyed.
D- Defendant says they aren’t liable because the plaintiff acted unreasonably and took an
unreasonable risk by stacking the flax near the tracks. Says they have an easement. Says that
Plaintiff is contrib. because they know how the property will be used and that trains admit
sparks.
P-It’s my land, I can use it as I like. D doesn’t have an easement (public use) to the land.
R-P need not exercise reasonable care to protect against risks from wrongful operation of
another’s use of their property. This is not contributory negligence.
H- The defendant was negligent in the operation of the train. Railroad says that the plaintiff was
contributorily negligent by stacking them too close. Court says, no, that the property right
dominates. Says that the plaintiff is allowed to create the risk (simply because it’s their
property). Railroad can’t use the property to deposit sparks, they will either have to buy the
land, or an easement or make private arrangements. Property interest trumps foreseeable
risk when talking about contrib. The court ruled that negligence is a matter of degree and
that matters of degree are for the jury. Contributory negligence cannot arise because the
plaintiff has done nothing to invade physically the railroad’s right of way.

**Dissent: But the property owner was creating a foreseeable unreasonable risk of injury – he
knew these sparks always came onto the property…it’s almost as though he was looking to burn
them up so he could sue.

Driveway HYPO: Two houses close to each other, driveways only a few feet apart…the
driveways share a dip at the end of the driveway w/ a strip in the middle. Person A sometimes
drives across the strip dividing the two driveways at the end. Person B is not happy about this.
Person B buys a statue at a garage sale and puts it at the strip at the end of the driveway.
Person A does what she always does and hits it and ruins it. When person B has it removed, she
finds out it’s worth a lot of money, so she sues.
P – She was contrib. negligent because she knew that I had a tendency to drive there, but she
put it there anyway.
D - Use the rule from Leroy – I shouldn’t have to take care to protect the wrongful use of my
property

Plaintiff’s Conduct Defenses Contrib. Neg. – Last Clear Chance

Rule of Law: Last Clear Chance Doctrine – acts as a limit on the contrib. neg. defense:

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Person who has the last clear chance to avoid the peril has the duty to avoid the harm,
eliminates the contrib. defense (of the jay walker).

Last Clear Chance

• It’s a time sequence analysis that makes the person who had the last chance to avoid the
peril responsible
• Only thing it does is eliminate the contrib. defense
• For example the jaywalker would be in peril but the driver that hits him would have the
capacity and the last chance to avoid an accident.

Last clear chance doctrine: permits P to win even though he concedes that he was
contributorily negligent. The doctrine that a plaintiff who committed contributory acts of
negligence may nonetheless recover damages against a defendant who had the last opportunity
in time to avoid the damage and prevent the harm (and P did not have such an opportunity) –
the opportunity (this last clear chance) wipes out the effect of Ps contributory negligence. . Very
limited applicability in most states.

Plaintiff can prove that a point in time occurred, and at that point in time the Defendant became
aware of the fact that the Plaintiff was negligent and had the capacity to avoid the accident but
didn't. By becoming aware of negligent conduct of plaintiff - being aware of the peril - and then
doing nothing about it is called violating the "last clear chance".

*Courts are split about last clear chance – especially when it comes to a comparative negligence
jurisdiction.

Texting HYPO: Text sees that speeder is coming so fast that there is no way the speeder can
stop and then that person goes back to texting. By texting he is negligent. The speeder by
speeding is negligent. BUT defendant texter at a point in time became aware of the speeder
(aware of peril) and then negligently fails to avoid the accident.

Kid running in street HYPO: Kid runs into street looking the other way - car comes around a
turn and decides to swerve but hits the kid. Both negligent. Kid running in street and looking
the other way and speeder coming around the turn. Speeder is negligent and kid is contrib. BUT
because the speeder had the chance to avoid it (aware of peril) but didn't he had the "last clear
chance".
Last Clear Chance Driving Hypo 1
F: Plaintiff is jaywalking, Driver (defendant) swerves to avoid the plaintiff
H: Last clear chance applies because the driver had the last chance to avoid the accident

Last Clear Chance Driving Hypo 2:

F: Plaintiff again is jay walking, driver hits the breaks and the breaks fail.
H: The driver never had the capacity to avoid the accident. Can say that he was negligent in
speeding and not maintaining the car and the jaywalking would be a defense.
It doesn’t matter if the driver was speeding, he still had the last clear chance.

Train running over a person multiple times HYPO

F: Train runs over a person 3 times, they keep stopping and then restarting because they don’t
know why the train stopped.
The driver of the train had the last clear chance because he should have checked after
the first time the train stopped.

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**Seat belt defense is increasingly accepted in comparative negligence jurisdictions. In this
defense, D argues that Ps injuries from a car accident could have been reduced or entirely
avoided had P worn a seat belt.; Ps damages should therefore be reduced.
⇒ Contrib. Jurisdiction – In most contributory negligence jurisdictions courts REFUSE to
allow the seat belt defense at all. That is, Ps failure to wear a seat belt does not count
against his recovery in most courts.
⇒ Comparative negligence jurisdiction – But in states that have comparative negligence,
the seat belt defense is more successful. There are various approaches but it ends up
beign that D is only liable for the injuries that would have occurred if P wore the seatbelt –
equal to the % of Ps fault – so D is liable for all injuries – but P’s fault reduces his
recovery for the injuries he could have avoided.
o Effect is that 32 states have mandatory seat belt laws. But a majority either
prohibit seat belt defense or allow only a small reduction of damages.

Seat Belt Cases: States pass a law making it mandatory to drive with a seatbelt on.
P is driving without a seatbelt, but isn’t doing anything else wrong. D is driving drunk and drives
to the other side of the road and hits P.
P- clearly claims negligence
D- P violated the statute, CN per se. I shouldn’t have to pay.
P- Not fair to call me Neg PS. That encourages D to speed. Not fair to impose sanction on me
when it was D’s actions that were unreasonable (Leroy Fibre)
Collateral Benefits Rule: D shouldn’t benefit b/c he was lucky that P didn’t have seat belt on.
Cts: View this issue differently. It is a pure question of policy as to how the legislation will look
at this. Washington: P aren’t required to buy insurance as a precaution in case of a negligent D.
Fact that P wasn’t wearing a seatbelt isn’t even mentioned at trial.
NY- CN is a defense to damages. D must demonstrate the connection b/t the P’s non-use of an
available seat belt and the injuries and damages sustained. Jury can hear expert testimony on
belts.

Derheim v. N. Fiorito Co
F: Plaintiff sues defendant after a car accident where defendant made an illegal left turn. Plaintiff
wasn’t wearing a seat belt.
P: Says illegal left turn, negligence caused the injury
D: Says Contrib. wasn’t wearing a seatbelt.
H: Contributory negligence doesn’t apply in this case because there is no statutory requirement
to wear a seat belt.

Spier v. Barker (N.Y. 1974)

F: Car accident, plaintiff wasn’t wearing a seatbelt.
P: Negligence caused the injury.
D: Contrib., wasn’t wearing a seatbelt
H: Wearing a seatbelt isn’t a defense for liability, can’t plead contrib. but it can be used to
mitigate the damages.
In NY not wearing a seatbelt is not a contrib. defense for liability, but it can be used to
mitigate damages.

Plaintiff’s Conduct – Assumption of Risk

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Assumption of Risk: A P is said to have assumed the risk of certain harm if she has voluntarily
consented to take her chances that harm will occur. Where such an assumption is shown, the P
is, at common law barred from recovery.

Rule of Law: Assumption of Risk

To have assumption of the risk you must 1. have knowledge of the risk; 2. Voluntarily consent to
bear the risk; 3. Didn’t have to partake in the dangerous activity.

Primary Assumption of the Risk, complete defense (says defendant isn’t negligent or doesn’t
have a duty, was just an accident).

Secondary Assumption of the Risk, similar to contrib., affirmative defense to an established

breach of duty (treated as comparative in NY)

NJ says that there is no assumption of the risk because it is not fair.

Assumption of Risk:

• Elements:
1. Have knowledge of the risk
• Can be implied when the risks are one that the average person would
clearly appreciate (i.e. being hit by a foul ball at a b-ball game)
• express assumption – explicitly agrees with D in advance of any
harm, that P will not hold D liable for certain harm – expressly agrees.
• Implied assumption of risk – even if P never makes an actual
agreement with D whereby P assumes the risk, P may be held to have assumed
certain risks by her conduct.
• There must be an alternative in face of the risk

2. Voluntarily consent to bear the risk

3. Didn’t have to partake in the dangerous activity but CHOSE to.
⇒ IF D can show this, he is not liable. Sloppy way of showing P was CN.
⇒ Based on Free Will theory: One makes their own choices and lives with the
consequences.

Primary assumption: implied assumption of risk – Its an alternative expression for the
proposition that the defendant was not negligent, that the defendant did not breach the duty or
had no duty
D is never under any duty to P at all (ex: foul balls at a baseball game - Defendant didn’t do
anything wrong, just an accident.)

Secondary assumption: implied assumption of risk – Affirmative Defense to an established

breach of duty - D would ordinarily have a duty to P, but Ps assumption of risk caused the duty
to dissipate (ex: P injured, asks for a ride to the hospital in Ds car, which P knows has bad
breaks) This is contributory negligence
(if state has comparative neg statute then most states eliminate the “secondary” assumption
doctrine but “primary”).

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 1. I'm not negligent (primary): not negligent at all; P loses bc D was not negligent
2. You're contrib. (secondary): balance negligence of P and D
• Said to assume the risk if you voluntarily consent to take chances that harm will
occur. When assumption is shown, at common law P is barred from recovery.

**NJ Says that you can’t use assumption of the risk because it’s not fair (especially when
unreasonably dangerous)

Presumption of Risk:
• Negligence allocates responsibility for certain kinds of risk taking activities
• We live near airports and if a motor falls off a plane we still chose where to
live and assumed the risk
• Doesn’t look at reasonable conduct, looks at calculated risk taking.
• Typical example is flying an ultra-light (hang glider with a motor) which is
really dangerous. By flying it you are assuming the risk, so you can’t recover.
• This is different than contrib. and once was a 100% defense
• Must show that the plaintiff knew the risk and did the action anyways
• Works differently than contrib. but comes to the same result that it’s a 100%
defense

Banging Tree Hypo

F: Cutting down a (banging) tree. As he cuts it down, it falls right onto power lines. And it
bounces right back and squashes him.
P: Says he didn’t know that it would bounce, only assumed the risk that he would cut it in the
wrong direction
D: Says that he assumed the risk of it bouncing
H: If you don’t know of the risk, you cannot assume the risk.

Amusement Park HYPO.

F: Gets hurt on an amusement park ride after watching several people fall and be thrown from
the same ride.
P: Didn’t know that I could be seriously hurt
D: Assumption of the risk, she saw others fall, knew she could fall too.
H: Court says that she bears the consequences for her decision.
If you assume the risk, you bear the consequences even if they were more serious
than you intended.

Murphy v. Steeplechase Amusement Co. – (Plaintiff and wife stepped onto The Flopper, fell
and was injured.)
P: alleged that the belt was out of order and caused a sudden jerk.
H:The point of the ride was to step on and stand until you fell. He stepped on while it was
already in motion; this was the very hazard that was invited and foreseen. Judgment for
the plaintiff reversed and remanded.

Minor League Field Hypo:

F: At a minor league field watching a game. There’s only about 15 rows of seats and behind the
seats is where all vendors are. While waiting in line to get popcorn, you get hit by a fly ball.

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The courts are split on this, some say this isn’t the area where you assume the risk
(you are no longer in the stands) and some say you are in the stadium and you assume
the risk.

Greased Pig Race Hypo

F: Greased pig race. Have greased pig in a pen and the first person to catch it gets a prize, you
can’t really catch it, you have to pile on it. Someone gets seriously hurt.
NJ would say that its not assumption of the risk, it didn’t create an unreasonable risk
of injury (just bangs and bruises), NJ says they weren’t negligent.
Other jurisdictions would send it to the jury to see if the risk of injury was
unreasonable (was it on a field or was it in a parking lot).

Fireworks Hypo
F: Set of fireworks. One of the people that was supposed to set them gets drunk and puts it in
sideways. Plaintiff is over the rope and gets hit in the side of the head.
P: Defendant is negligent in letting drunk people set off fireworks
D: Says that plaintiff was contrib. in getting over the barrier. They assumed the risk
Court (not NJ) holds that the plaintiff assumed the risk (contrib.) by going over the
barrier and putting himself in harms way of the fireworks.

Mom Skating Hypo

F: Mom is a good skater, she goes to a rink with her 2 kids (8&10). Everyone is going the way
that they are supposed to except 2 14 year old boys who are going the wrong way and knocking
people over. She complains to the rink manager who does nothing so she gets her kids off the
ice because its dangerous. But she continues to skate because she’s a good skater. She gets hit
and hurt.
P: Says the rink was negligent in not getting the boys off the ice
D: Says that she assumed the risk, she knew the boys were going in the wrong direction
Verdict for the skating mom doesn’t resonate well, she assumed the risk without
contributory negligence (because she was a good skater), not a large assumption of
the risk.

Lamson v. American Axe & Toll Co

F: Guy tells his supervisor that the new racks to hold the hatchet aren’t as good and someone is
going to get hurt when the hatchet falls. It does fall and hurts him.
P: Sues saying that the employer was negligent
D: Says that he assumed the risk
H: Plaintiff assumed the risk.
If you know of the risk and you stay on a job despite the risk, you assume the risk. But
you can still get worker’s comp, you just can’t sue the boss/company.

Maddox v. City of New York, (N.Y. 1985):

F: NY Yankee outfielder gets hurt while playing in a game. Hurts himself in a hole in the outfield.
P: Says the field was negligently maintained
D: Says assumption, he new the field condition
H: He assumed the risk in this case.
In Sports, you assume the ordinary risks that are attributed to the sport. (You assume
that you can get hit by a ball/pitch, but you don’t assume the risk of someone sliding
20 feet away from the base. Normal breaking of the rules is assumed, but getting hit
after the play is blown dead is not assumed and this can be an intentional tort. )

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Fireman’s rule:
• Firemen are paid to do something dangerous and therefore can’t collect when someone
negligently starts a fire (creates the risk).
• The presumption is you get paid more than someone in a less dangerous job.

NY, Big Exception to the Fireman’s rule:

• If the fire is started or made worse by violating a fire safety statute, you may be able to
sue
• i.e. storing of hazardous chemicals in the building
• doesn’t apply to a blocked exit, or any other type of violation that is similar, really
only applies to flammable chemicals materials being stored

Comparative Negligence – rejects all or nothing system. Instead of contributory neg being an
absolute defense, comparative neg. makes contrib. a partial defense. Jury compares amount of
negligence of P to that of D. Attempts to divide liability between P and D in proportion to their
relative degrees of fault. P is not barred by his recovery by his contrib. neg. BUT his recovery is
reduced by a proportion equal to the ratio between his own negligence and the total negligence
contributing to the accident. (46 states have adopted some form of comparative negligence)

Comparative Negligence

Doesn’t bar the action, just reduces the amount of that you can collect.

Pure Comparative negligence – (only 13 states) Subtract the amount that you are contrib.
from the damages (if you are 10% contrib. you can collect 90%), NY law

50% systems - Modified Comparative negligence – if you are 50% or more contrib. then
you are barred from collecting any damages.

In NY not wearing a seatbelt is not a contrib. defense for liability, but it can be used to mitigate
damages.

Fireman’s rule is that they are paid to do something dangerous and cannot collect when
someone negligently starts a fire (creates the risk).

NY there is a big exception to the fireman’s rule and the firemen can sue if they are injured by a
fire that is started or made worse by the violation of a safety statute (i.e. storing hazardous
flammable chemicals).

Contributory Negligence and Assumption of the Risk are both subject to comparative
• But primary assumption is still a complete defense
• In those jurisdictions that let you use assumption of the risk
• This just means the defendant wasn’t negligent
• Not comparative, it’s a 100% defense (contrib./assumption)
• This has increased insurance rates
• Uninsured drivers still can collect
• Eliminated contrib. because with insurance no person will be financially ruined.

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Negligence was: Violation of the standard of care causing injury
Negligence is: Violation of the standard of care proximately causing injury

2 types of comparative negligence:

Pure (NY + 13 states): JURY looks to facts and looks at what Ds did and they have to come up
with a percentage of how responsible each party was. How important is there action in causing
the negligence?

• It does not matter how marginally negligent the other party was they will always pay % of
damages
• Also works with 2 defendants (% split) between P and Ds
• No matter how small the party can be liable to the more negligent party to the damages!

Pure system (comparative fault) – allocates proportion of fault to each parties role in causing
the accident. (ex. P is 80% negli., D is 20% negli. – P collects 20% of judgement).

50% Modified (IL): Contributory remains 100% defense - only in circumstances in which P is
equally or more negligent than the D.

For P to get any money at all (once they have been established to be contributory negligent)
they have to prove that D was MORE negligent then they were…aka more than 51%
• If D is more than 51% + = P gets damages
• If less than 51% = P does not get damages

Modified system –Criticism of Modified system – how can you tell difference between 50% and
51% ??
⇒ If P is equally or more negligent than D, P gets nothing.

Problem with Comparative system: It is an illusion to think that there is a rational way of
determining the % each party is liable.

NY is a pure comparative state, meaning that it allows the smallest contributor to be

solely liable for all damages if the others have no $$.

Multiple D cases: Where there are multiple defendants, comparative negligence is harder to
apply. (P collects from one D. D1 then can collect from D2, D3, & D4 their percentage of fault
in the accident.)

1. All parties before court: if all Ds are joined in the same lawsuit, the solution is simple:
only the negligence due directly to P is deducted from his recovery. (so if D was 20%
negligent and D1 is 50% neg. and D2 is 30% - then P will recover 80%)
2. Not all parties before the court: If not all Ds are before the court, hard questions arise
concerning joint and several liability. The issue is whether the Ds before the court, who
is/are found to be only partly responsible for Ps loss, must pay for the whole loss aside
from that cased by Ps own fault.

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 a. under common law, in a suit involving joint tortfeasors as D’s, P could decide to
collect the entire judgment from one D, (even if this one D is 1% wrong and the
other D was 99% wrong) and the D cannot sue the other D’s for his share.
i. Total abolition – 1/3 of states have completely abolished the doctrine of
joint and several liability in comparative negligence cases. In these states all
liability is “several”. That is each D is ONLY required to pay for his or her own
share of the total responsibility.
ii. Hybrid – an additional significant # of states have replaced traditional joint
and several liability with some sort of “hybrid” approach, which combines
aspects of joint and several liability

**Today under comparative neg., one D can sue the other D for contribution and collect from
him the percentage for which he was at fault.

Li v. Yellow Cab Co. of California – (An accident resulted from the negligence of both parties.
Plaintiff tried to cross three lanes of traffic and the defendant’s driver was travelling at an
excessive rate of speed.) The trial court held that the plaintiff was barred from recovery due to
her contributory negligence and the judgment was subsequently reversed. Court initiated a
change from contributory to comparative rejecting the all or nothing system.

HYPO: Meadowbrook state parkway: D changes lanes without looking; hits the speeding P sues
and says the D did not take reasonable care in operating the vehicle, he failed to look before
changing lanes. Both negligent so instead of knocking P out b/c she was negligent to – court
can use comparative negligence to determine damages.

Plaintiff’s Conduct – Imputed Negligence

Vicarious Liability—provides that in some situations, the tortuous act of one person may be
imputed to another, because of some special relationship between the two. As a result the latter
will be held liable, even if his own conduct may have been completely blameless. The most
frequent situations in which vicarious liability exists are that involving tortuous acts (usually
negligent ones) committed by an employee; under appropriate circumstances the employer is
held vicariously liable for the tort. Master can either be held directly responsible for the
negligence of his servants or can be held vicariously liable

Rule of Law: Vicarious Liability

Master/servant rule - [Respondent Superior] doctrine: if an employee commits a tort

during the “scope of his employment” his employer will be liable (jointly with the employee).

Master (employer) is vicariously liable for all action of his servants (employees) when they are
doing work, if the employee is negligent and causes injury the master is liable.

Independent contractors are an exception to the master servant, if you hire an independent
contractor you are not responsible for their actions. The independent contracts become
independent intervening actors and break the chain of liability.

Fellow servant exception, master isn’t responsible if the employee is hurt by another employee.

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Vicarious Liability
• Tortuous acts of one person can be imputed to another because of the special relationship
between the two
• Latter will be held liable even if he did nothing wrong

Master / Servant Liability Doctrine

• The master (employer) is vicariously liable for all actions of his servant (employees) when
they are doing work for the master.
• If the employee is negligent and causes injury, the master can be sued and be liable.

Master / Servant – Contractor Exception

• If you hire an independent contractor you are not responsible for their actions. They are
responsible (if self employed) or the person that employs them is reasonable.
• The independent contracts become independent intervening actors and break the chain of
liability.

Master / Servant – Fellow Servant Doctrine

• Master isn’t responsible if its another employee that hurts the plaintiff
• An employ assumes the risks and benefits of working with other people
• Supervisors are an exception to this rule

Truck Company Master/Servant Hypo

F: Truck driver goes out to lunch at a friend’s 15 miles out of the way of his route and on the
way back he gets into an accident.
P: Says company is vicariously liable for their employees
D: Says he was on a caprice and detour, he wasn’t working at that time.
H: Injured plaintiff can sue the owner of the truck company because the action that caused the
injury is vicariously attributable to the owner
Employers are vicariously liable for the actions of their employees on the job, but not
responsible if they are on lunch or on their way home.

Truck Company Master/Servant Hypo 2

F: Truck driver is helping unload the truck and one of the coworkers that is helping him is drunk
and causes the goods to fall on the Plaintiff, seriously injuring him.
P: Sues the company saying vicariously liable
D: Says Fellow Servant Doctrine, he was a coworker and therefore assumed the risk
H: Agrees with the defendant, fellow servant doctrine
Fellow Servant Doctrine says that you cannot recover from a company (though they
are usually vicariously liable) if the person that injures you is a coworker.

Imputed Negligence Hypo: P and negligent party are in a business relationship.

A & B working together. Rush job. B drops window on A’s head. Due to negligence A want to
sue boss.
Ct: Employer-Servant Rule: 1 employee couldn’t recover v. master if other worker caused the
injury.
Workman’s Comp. Statutes: D took away CN, Assumption of Risk, Fellow-servant rule,
*chance for damages. Congress set up a fee schedule for physical losses. Keeps case from
court. Benefits employers.

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IV. Proximate Cause:

Proximate Cause: even after P has shown that D was the “cause in fact” fo P’s injuries, P
must still show that D was the “proximate cause” of those injuries. The proximate cause
requirement is a policy determination that a defendant , even on who has behaved
negligently, should not automatically be liable for ALL the consequences, no matter how
improbable or far reaching, of his act. Today the proximjate cause requirement usually
means that D will not be liable for the consequences that are very unforeseeable.

 Proximately and foreseeable that they are cause in fact

 Factually and legally the cause of the event

Cause in fact – “but for”, straight line causation from D’s actions to P’s injury. (primary
doctrine) --> Everything that is cause in fact is not proximate cause

Proximate cause = subset of cause in fact (secondary cause)

• Everything that PC is cause in fact

⇒ Doctrine of proximate cause is a limitation of liability and deals with liability or non-
liability for unforeseeable or unusual consequences of one’s acts. In addition to being a
cause in fact, D’s conduct must also be a proximate cause of the injury.
• P has the burden of showing that D is not only the CIF, but also the PC.
• Doctrine functions as a defense to a claim of negligence and as a limitation
of liability.
• Deals with liability or non-liability for unforeseeable or unusual consequences of
one’s acts.
o D is only liable for Legally sufficient acts, not all acts.
o Narrows D's liability.
o You are not the legally sufficient cause of the injury unless you are the
proximate cause.
• Proximate cause Elements:
1. reasonably foreseeable
2. P must be a member of a class as to which there’s foreseeable harm
3. Same general sort despite unusual manner

Duty: you're going to be libel if you negligently caused the event or bc you were careless unless
that negligent conduct did not BREACH the duty to the person who was injured.

Cardozo: “The risk perceived is the duty defined” risk you can foresee is the only danger
you are liable for. You should only be responsible for the consequences that you should have
tried to avoid – what a reasonable person would perceive as a risk

The key to PC is foreseeability: most courts hold that D is liable, as a general rule only for
those consequences of his negligence which were reasonably foreseeable.
⇒ The policy is to limit the liability of the defendant to danger he can foresee.
⇒ Usually applicable to “unforeseeable plaintiff” problem too (D only liable for foreseeable
consequences) - when Ds conduct is negligent as to X (it imposed an unreasonable risk of

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 harm on X), but not negligent as to P (i.e. does not impose an unreasonable risk of harm
upon P) P will not be able to recover if through some flue he is injured.
⇒ Unforeseeability: If you trace a chain of events backwards you can probably find the
problem. But the event at the end of the chain is too unforeseeable. Must limit the
scope of liability. It cannot be beyond the scope of what anyone should be liable for.
Too removed.
⇒ EXCEPTION: once P suffers any foreseeable impact or injury, even if relatively minor, D is
liable for any additional unforeseen physical consequences. (skull – “takes P as he find him”)

⇒ Proximate or legal causation issues are conceptual not factual.

1. Possibility is to ask whether the chain of events that in fact occurs was sufficiently
foreseeable, natural or probable.
2. Starts with injury and works backwards towards the wrongful action of defendant’s
directness.

Policy: To restrict liability of D to danger he can foresee, so as to avoid Ruinous or

unforeseeable liability.

⇒ Ruinous Liability: Enormous Liability. Ex. Chicago fire. Cow knocked over the lamp. This
was unforeseeable. Should not have to pay for all of Chicago to be fixed.
⇒ Unforeseeability: If you trace a chain of events backwards you can probably find the
problem. But the event at the end of the chain is too unforeseeable. Must limit the scope of
liability. It cannot be beyond the scope of what anyone should be liable for. Too removed.
1. Doesn’t mean unforeseen but must be unforeseeable for a reasonable person
at the time in the situation.

Three Kinds of Proximate Cause:

1. Pure Policy: (Ryan) Public policy to limit catastrophic liability. Due to ruinous liability.
a. It tells people to get insurance.
b. Restricts liability in a rational way.
c. Protection for D against an unpredictable ruinous liability.
2. Dual Risk Theory: (Palsgraf)
3. Remoteness and Intervening causes. (Wagner v. International)
a. Passage of time
b. Intervening Cause (3rd party)
c. Unexpected Consequences.

Why are they in different categories?

You have a duty when risk is foreseeable that your negligent conduct will cause injury to
the person or type of person that is injured but not only this but injury in the WAY the
person got injured - and not only to the person you can foresee and the nature you can
foresee but the manner it happened.

Even if injury is foreseeable it is not known that that particular injury would happen from
that negligent act

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When I do something it creates risks to people of certain kinds of things happening in
a certain kind of way

Person : who?
Manner : how?
Nature : what?

 Only an aid to determining whether or not D is PC to injury - tool to use not a rule :)

Pure Policy (PP) protects the defendant from unpredictable ruinous liability
Tells people to protect themselves and get insurance. Restricts liability in a rational
way. Protection for D against an unpredictable ruinous activity.

Reciprocal Risks: encourage people to have insurance b/c danger of fire is equally known to
everyone. Decision here restricts liability in a rational way because it limits liability to one house
on either side.

Ryan – Fires and making people liable and then broke Rule: W/ fires, 1 house is foreseeable and
D is liable. Today, 2 houses are foreseeable

Mine / Chain Gang worker – not foreseeable against the specific person

Ryan v. New York Central R.R.

Facts: In Syracuse, one of New York Central’s engines started a fire that spread to its
woodshed. Because of negligent conduct of D... The shed contained a large quantity of wood,
which, of course, also burned. Ryan’s house was 130 feet from the woodshed and caught on fire
from the heat and sparks. Even though efforts were made to save it, the house was destroyed.
There were several other homes destroyed by the same blaze.
P argue: It is foreseeable that my house would be burned.
D argue: The damages are too remote and unforeseeable. It was foreseeable that the fire
would burn the adjoining house, rule of Ruinous liability is app. here. Not fair to make D bear
liability b/c it would effect them in a ruinous way. It was not a Natural and Probable
Consequence.
Rule: When D is negligent in starting a fire, D is liable for the first building beyond his own
(adjacent houses – one on each side). Any other house is too remote and not foreseeable.
Many jurisdictions have modified this to a two house rule Liability does not exist when the
resulting harm is too remote and unforeseeable to be an ordinary and natural result of the
defendants negligent act (NO LIABILITY ATTACHES WHEN THE RESULTING HARM IS TOO
REMOTE FROM THE NEGLIGENT ACT).

Reciprocal Risks: encourage people to have insurance b/c danger of fire is equally known to
everyone. Decision here restricts liability in a rational way because it limits liability to one house
on either side.
⇒ It is counterproductive - who has a better capacity of protecting X's house and assets?? - X
by getting insurance! Spreading the loss over a lot of people.

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Duty: Since the ∆ is not liable for damage to “Remote” house, the ∆ has no duty to protect the
remote house

***Its really completely foreseeable but when they say "foreseeability" they mean obligation to
protect - it is not Ds legal duty to protect the rest of the houses (not next to him)

Ruinous Liability: Enormous liability. Its nice of me to take care to protect you but if my duty
is not to protect me and you but to protect everyone then that is going to impose an enormous
liability on me.
• The group that you are responsible for is a limited group
 People who bought your product
 People who die in plane crash
• Liability is HUGE but you knew the group that is involved (whether
buying/using etc)
• You are aware of these people before.
• What would have been ruinous liability is changed by INSURANCE.
 People are not quite aware of it but just because you have insurance - you
don't realize that inflation has risen so much in the last 20 years so that million
will not really protect you from liability.

Policy method: When injury is remote or unforeseeable or like RYAN when we wish to see it as
unforeseeable.
 Doesn’t really affect a factual history - bc clearly he was well aware that if he
started a fire RYAN would burn down the city but it doesn’t matter bc LEGALLY he
it is not foreseeable

Berry v. Sugar Notch Borough

F: Driving a tram in excess of the city speed limits. The guy speeding is negligent (maybe even
negligent per se). The tram is hit by a tree that blew down in a windstorm.
P: The speeding was the cause in fact of the train being where it was when it was hit. And the
defendant was negligent in speeding.
D: Says that the harm that occurred is not the type of harm that the statute intended to protect
against. Not reasonably foreseeable that speeding would cause this type of injury.
H: Not fair to hold them liable because a reasonable person wouldn’t have had the opportunity
to avoid the risk. If you can’t foresee the possibility, you can’t avoid it. Its not something that
endangered the passengers in this way, and not appropriate to allow the passengers to collect
because they weren’t exposed to an unreasonable risk.
Not fair to hold people liable for unforeseeable injuries. Plaintiffs shouldn’t be able to
collect when they weren’t exposed to an unreasonable risk. In this case the person
was foreseeable, and the nature of injury was foreseeable but the manner of injury
was not foreseeable (expect speeding to cause a crash, not get hit by a tree) and this
breaks the legal chain of causation (not the factual chain)

Pittsburg Reduction Co. v. Horton 649 (Ark. 1908)

F: Dynamite cap is left at an abandoned government site. A kid picks it up and brings it home
and is playing with it. It explodes and injures the kids.
P: Says that this is foreseeable, dynamite caps explode and its foreseeable that a kid would pick
one up.
D: Says that it was many years later and is not still at the site. The parents were aware that the
abandoned site was there and they knew it was a dynamite cap.

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H: Not foreseeable that parents would let the kids play with a dynamite cap and it was so long
after that its not foreseeable.
Not liable for things that aren’t foreseeable, dangers that were created long ago.

Life Insurance Physical Hypo

F: Doctor from the life insurance company goes to the woman’s house to take urine sample and
do a quick physical for the insurance company. He knocks on the door and tells the woman to
undress. She does it. When she tells other people they tell her that’s not normal and that she
was assaulted.
P: I was assaulted.
D: She consented to the naked physical
H: Consent doesn’t count in this case because the consent was induced by fraud.

Proximate Cause and Fires

People get the benefit of living close together (community, social protection against enemies)
this is a choice that people make and they know the risk
• Notion of reciprocal risks
• By not holding the person who starts the fire responsible for all the damage from the fire
(only the foreseeable damage) it encourages everyone to get fire insurance
• Water distribution systems underground stopped the spread of fires
o But if your house burns down while they are fixing the water system you cannot
sue them.
Courts adopted a policy of limiting the liability for water companies because we
need water companies

Dual Risk (Palsgraf)

Some jurisdiction reject DR but some accept it...

Every case does not raise a DR possibility - the risks have to be created out of the single
negligent act.

Theory: D is only liable for those consequences of his negligent conduct which were reasonably
foreseeable at the time he acted. You have a dual risk when u can create a situation that would
cause the same injury to occur in a non-negligent way.
So a Reasonable and Unreasonable Negligent risk is created at the same time.

D was negligent and negligence caused an injury but it was an injury nobody in Ds position
would have thought could have occurred..Risk I should know when I do an act v. risks I didn't
know about when I committed act. All created at the exactly same time!

What are their DR’s?

1. First risk – is foreseeable conduct.
2. Second Risk is not foreseeable and not caused by the negligence aspect of the
conduct.
 look at person, manner, and nature to tell foreseeability

Palsgraf – when there is a negligent and a non-negligent risk and the non-negligent risk occurs,
defendant is not liable for the negligent risk

Palsgraf – the risk perceived is the duty defined

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Polemis – if you create a negligent risk you are liable for any consequences, even non-negligent
consequences.

Wagon Mound 1, Wagon Mound 2

Proximate Cause – Unforeseeable Person, Manner, Nature (Who, How, What) 2/3 = DR

1. Unforeseeable person
Look to see if the person hurt wasn’t foreseeable
2. Manner
Look to see if the manner of injury was foreseeable
Get in car accident, get out of car and bee stings you and you have allergic reaction, the reaction
isn’t a manner that was foreseeable
3. Nature
Look to see if the nature was foreseeable
i.e. speeding causing you to be in the position where a tree falls on you, not causing an accident

Gorris:
F: Sheep were not kept in the statutory proper manner. They were then thrown overboard
during a storm.
P: First argue negligence PS b/c the D broke the statute, but it was also reasonably foreseeable
that this event could occur b/c they weren’t locked up properly.
• Knows risk of sheep getting sick because not putting in the pin
• But created the second risk unknowingly by doing the same conduct - negligence of not
following statute by putting sheep in pen.
D argue: Dual Risk: The purpose imposed by the statute was to protect animals from getting a
disease. It was not to protect them from going overboard. The PC of injury came from the non
neg. cause, so D not liable.
H: Risk of being swept overboard was not a foreseeable risk. The risk of animals getting sick was
foreseeable. The only reason why he had to use pens was to protect healthy sheep from getting
sick NOT to prevent them from flying overboard.
***Only one was created by a negligent act - because made negligent by statute.

Rule of Law: An act is negligent when a reasonable person could anticipate the risk of any type
of harm as a result of the act. (WITHOUT A REASONABLE APPREHENSION OF DANGER, THERE
IS NO LIABILITY).

Palsgraf v. Long Island Railroad Key example of Dual Risk!

F: Palsgraf was standing on the D’s railroad platform waiting for a train. Another train pulled into
the station and two men ran to catch it. The first man jumped aboard as the train was moving,
but the second man, carrying a package, seemed as if he were about to fall. A guard on the train
reached out to help him, while another guard on the platform pushed him from behind. The man
dropped his package, which contained fireworks. A newspaper covered the package, so it was
not apparent that it contained fireworks. When it fell, the package exploded and the shock

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knocked over scales at the other end of the platform where the plaintiff was standing. She was
hit by the scales and thereby injured.
P: Says that it’s cause in fact.
D: Says that it wasn’t foreseeable that this could happen.
H: Majority says that P should lose because the risk perceived is the duty defined.
If the negligent conduct didn’t foreseeably create the risk that happened, the plaintiff
shouldn’t recover. (Risk perceived is the duty defined.)
Negligent if it is foreseeable that this particular person would have been injured.

Note: Could have sued the scale company and they might have been found guilty because this
would be chicken hawks (vibration of the train could have caused the scale to fall)

Analysis:
Risk 1: scales hit Mrs. Palsgraf in head
Risk 2: guard pushing guy onto train = risk they knowingly create that could hurt guy these are
foreseeable and they were negligent bc a reasonable person in their position would know that
their conduct was unreasonable bc person they were trying to get on train was being exposed to
an unreasonable risk of injury by falling off/tripping

Palsgraf: P is hurt by falling scales after an exploding package.

P argues : Negligent action of forcing passenger onto train caused my injury.
D argues: I was negligent helping the passenger onto the train, but not for your injury. No PC,
injury to third party was not foreseeable.

Was there a non-negligent way to cause the injury?

Yes, you could leave the package on the platform, it is thrown out and it explodes.

Person: person getting on train is foreseeably threatened, not P many feet away
Manner: Maybe of falling from being pushed on, not dropping explosive box
Nature: Injured by falling and being run over = foreseeable

NOT being blown up and not another blown up far away. Injured by being run over, not
from explosion that caused vibration that would knock the scale down.

A reasonable person would not think that this would happen by pushing man onto
train.

No one would consider to stop helping the guy bc they could think that such a
thing could happen - not foreseeable

The injury could have occurred in another way. The risk we created wasn’t
reasonably foreseeable to cause injury.

Cardozo: “The risk perceived is the duty defined” risk you can foresee is the only
danger you are liable for. You should only be responsible for the consequences that you
should have tried to avoid – what a reasonable person would perceive as a risk

**P cannot benefit because what happened to her just happened to be because of a
different negligent act

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 Holding/ Rule: P established negligence and negligence did in fact cause the injury, but
negligence didn't breach a duty because he was not the proximate cause due to this nature
and manner of the injury.

Why should the R.R. Co. get off when they are negligent, just because injury could
have occurred in another way?
a. Cardozo – people shouldn’t be liable if they aren’t morally at fault.
b. “The risk perceived is the duty defined”
c. Risk perceived is the duty defined only applies to actions; not when D doesn’t
do anything.
d. Doesn’t want Ps to be “free riders”

The dual risk theory permits people to be negligent. It does not maximize the
deterrent aspect of the law.

Very often no perfect solution:

Hobson's choice: "you either buy a horse or you walk..." means no choice at all but now
means choice between TWO BAD THINGS.

P is undeserving of a benefit, but D is undeserving of getting away with negligent act, so

the court “has no idea what to do” so D wins

The only thing you can do is effect on damages/money...

**P established negligence and negligence caused injury, but negligence didn’t
breach a duty b/c you weren’t the PC due to this kind/nature of the injury.

How do we distinguish proximate cause from Chicken Hawks where D was liable?
i. Look at whether a reasonable person could have done the aspect of the thing
non-negligently.
ii. Chicken Hawks was not specifically foreseeable, but it was a foreseeable
manner and nature.

In re Polemis & Furness, Withy & Co

F: Defendants drop some timber which causes a fire.
P: Says that it was the cause in fact, they created the risk.
D: Says that maybe we caused the risk of the falling timber hurting someone, but not the risk of
the fire.
H: The defendants didn’t cause the risk of injury that occurred.
Defendant is negligent if anyone could be injured from the negligent conduct, doesn’t
have to be the type of injury negligently caused.

Polemis is not consistent with Palsgraf

• Polemis – says that you should be liable even if it wasn’t foreseeable because you did a
bad thing
• Palsgraf – you have too look more carefully (dual risk doctrine created by Cardozo)

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Rat Poison Hypo Box of poison on shelf over stove where soup is cooking. It doesn’t fall in the
soup, but the heat makes it explode, injuring P.
P: Says that it is foreseeable that it could cause danger.
D argue: Not Foreseeable. It is foreseeable that the poison would fall into the soup causing D
poisoning, but not foreseeable that putting it above heat would make it explode.
H: Not foreseeable that the poison would explode.
Not a foreseeable manner and nature of injury, so not liable

Handy Test- Dual risk scenario means that someone can do the fundamental conduct that the
D did, but do it not negligently.

Ex. Palsgraf- RR sets off fireworks non-negligently but the scales tips anyway. No neg.
then there is a dual risk. - When a ∆ acts and that act creates 2 or more risks of injury, and
the π is injured by one of the risks of injury, the ∆ is not liable if that risk that caused the
injury was reasonably taken

Doughty v. Turner Manufacturing Co

F:One is eating his lunch when a co-worker negligently tosses Asbestos lid tossed into molten
metal. The negligent toss created risk of splash, however in this instance, the splash injures no
one. Asbestos subsequently explodes causing molten to fly out and nail the bitch eating his lunch
in the eye. Explosion and molten flying out was unforeseeable. Same injury would have occurred
if the plaintiff had placed the lid in gently.A big vat of boiling metal and a worker is near it eating
his lunch. On a catwalk above a worker knocks over an asbestos lid and it falls into the vat. It
percolates a little, and then explodes. Molten metal flies out and hits worker in eyes and blinds
him.
P: Dual Risk involves a D not being responsible for injuries that are unforeseeable but in this
case they are foreseeable. If you drop something into a boiling pot then it is foreseeable that it
will splash.
D: going to say DR: It was foreseeable it would splash but it didn't splashbut the air bubble
wasn’t a risk..
No one had any reason to know that this cover - when immersed would explode. The risk of
bubbling over was not foreseeable.
Rule: Even if D is negligent - A negligent party is only responsible for the probable, or
reasonably foreseeable, consequences of its negligent act.
H: This is a not a foreseeable manner of injury, the splash is foreseeable but no one was hurt by
the splash so no risk. Explosion wasn’t in the risk that a person in his position would foresee, no
one knew it would explode.Not liable because its unforeseeable, no one was hurt by the
foreseeable risk.
Test: whether or not you can think of a different way that another person can create the same
risk without the negligent part of it and therefore NO DR. Does not mean P wins bc most of PC
there is this remoteness proximate cause
Is there a non-negligent way of causing same injury? Yes, worker could have placed it in
gently and it still could have exploded.
Policy Issue: D is lucky to get away from a negligent risk they created because the actual risk
was not the one reasonably foreseen.
Holding- D wins anyway.

Nitroglycerine Hypo:

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F: Bucket of nitroglycerine was on a table and the bucket falls and someone breaks their toe.
P: Says that nitroglycerine is dangerous no one should leave it around and I was injured by it.
D: Says that I shouldn’t be more responsible for any more than what happened. The bucket
itself wasn’t an unreasonable risk
H: Plaintiff shouldn’t win according to the dual risk theory. The risk that was created wasn’t
negligent. If it was a bucket of water it wouldn’t be an unreasonable risk. And plaintiff shouldn’t
recover for the risk that didn’t occur (the nitroglycerine exploding).
1. Is there a non-negligent way of causing the injury?
Yes, it could have been a pail of water. The aspect of D’s conduct which was negligent did not
cause P’s injury.
2. 3 step analysis:
Person: Same
Manner: expect explosion, got falling onto foot.
Nature: P would expect burns from nitro, got breaking of a foot.

So the Negligent risk from a pail of nitro falling is the possibility of an explosion. Actual risk was
heavy can which could hurt foot. This risk isn’t unreasonably taken. Only if there was an
explosion would it be unreasonably taken.

There’s both negligent and non-negligent risk. The non-negligent risk of the bucket falling and
the negligent risk of the explosion. When the negligent risk doesn’t happen you can’t collect for
that risk. Only liable for the risk that caused the injury (only if negligent).

Palsgraf says that its not fair for the person to be liable for the risk of something that didn’t
occur in the same conduct there is a set of foreseeable risk and non-foreseeable risks.

Policy Issue: the D is lucky to get away from a negligent risk they created b/c the actual risk
was not the one reasonably foreseen and not PC of Ps injury.

How do we distinguish proximate cause from Chicken Hawks where D was liable?
⇒ Look at whether a reasonable person could have done the injury in a non-negligent way
⇒ Chicken Hawks was not specifically foreseeable, but something getting caught in the 17
inch space was a foreseeable manner and nature.

Rule of Law: When it can be reasonably foreseen that an act may cause harm, the tortfeasor is
liable for damages caused, regardless of whether the type or extent of damages are reasonably
foreseeable. (A TORTFEASOR NEED NOT HAVE ANTICIPATED THE DAMAGES TO BE LIABLE FOR
THEM)

In re Polemis & Furness, Withy & Co

Facts: Polemis (P) and his partner chartered their ship to Furness, Withy & Co., which used it to
transport various cargo, including benzene and/or petrol. At the time of the fire, the ship was
docked in Morocco. Local dockworkers, found by the court to be acting as agents of the
defendants at the time, caused a plank to fall into the hold and cause a spark. The spark ignited
vapors in the hold and the ship was immediately consumed and destroyed by fire.
D: The defense of the loader company is that their negligence was not the PC of the injury. D's
claim they are not PC of injury bc manner and nature of injury was completely unforeseeable -
plank falling over and starting a spark and therefore burning down ship.

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FYI: Polemis: Deals with the direct consequence of the negligent act. If the negligence is the
direct and immediate consequence of the injury, D should be liable. (P wins) This is the
causation test supported by Andrews in Palsgraf.
R: Once D is determined to be negligent, the fact that the manner in which is happened was
unforeseeable is irrelevant - if what happened was a direct result of unforeseeable negligent act.
Court says it wasn't remote and there was no intervening cause - direct result - plank fell and
started fire...BC direct result it is not a PC defense and doesn’t matter that it happened in
random/strange way.

In re Polemis & Furness, Withy & Co : If the negligence is the direct and immediate
consequence of the injury, D should be liable. This is the causation test supported by Andrews
(the dissent) in Palsgraf. Once D is determined to be negligent, the fact that the manner in
which is happened was unforeseeable is irrelevant. Ex. Negligently transported cargo.
Reasonable that D would be neg. for it breaking when falling, but here, the cargo fell and a fire
ensued, causing an explosion. That was unforeseeable, but you are held liable anyway bc direct
result of what happened. Tough luck for Ds...(P wins)

Palsgraf and Polemis are 2 views of nature of individual’s responsibility for

conduct/PC that differ.
• Polemis: criminal law conduct
• Palsgraf: Negligent if foreseeable this particular person would be injured.
• (individual duty of a person, limits duty of free-rider policy – RR did not
unreasonably endanger her, risk perceived is the duty defined, if a reasonable person
wouldn’t/shouldn’t know they are exposing someone to a risk of injury, then they are
not liable)
• (cannot be sued b/c did not do what an unreasonable person would do)
• (fact sensitive)

Palsgraf and Polemis are 2 views of PC that differ (crunch time seems to go with Palsgraf
as the binding one but later poison ivy case argues with Polemis thinking).
Palsgraf: Negligent if foreseeable this particular person would be injured.
Polemis: Negligent if foreseeable that anyone could be injured from neg. conduct.

Dissent in Palsgraf- chain of causation has to end someplace b/c it’s not fair to hold the D
for something b/c there have been intervening causes.

Dual-Risk Theory: negligent aspect of hypo is dropping lid so that it exploded, if lowering it in
with a rope & not creating risk of splash, then no negligence, cannot sue b/c a reasonable
person would not know that there is an unreasonable risk of injury
 These cases don’t have to be inconsistent b/c you can read Polemis as making Ds liable when
injury was the immediate result. And in Palsgraf, you have intervening factors.

Exceptions to the rule that D is liable only for foreseeable consequences:

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 1) Once P suffers any foreseeable impact or injury, even if relatively minor, D is liable for
any additional unforeseen physical consequences (egg shell skull- if D inflicts harm on
someone that just so happens to have a thin skull an P dies, D is liable).
2) As long as the harm suffered by P is of the same general sort that made Ds conduct
negligent, it is irrelevant that the harm occurred in the unusual, unforeseeable manner
(example: D gives a loaded pistol to X, an 8 year old to carry to P. If X then drops the pistol
on Ys foot, thus breaking his foot but also setting the gun off that shoots P, D would be
liable. It was foreseeable that P would get shot by giving the gun to X, even if it did not
happen in the manner expected. D is not liable to Y though because the gun falling on his
foot was not foreseeable.

Thin Skull case/ eggshell plaintiff: If injury is foreseeable the extent to the injury is
irrelevant - even though way more than anyone would have thought of it doesn’t matter. =
D takes his P as he finds them!

Steinhauser v. Hertz Corp

F: Girl in the back seat of a car and the car gets hit and she ends up in a mental hospital
b/c of accident
P: Says that they were negligent, and caused her injuries.
D: Says that it wasn’t the proximate case, unforeseeable nature of injury
H: Court says that he’s liable because if you are under emotional distress from a car
accident you can end up in the hospital. Its likely that you’ll be frightened or scared.
People are responsible for unforeseeable extents of a foreseeable injury. You take your
victims as you get them (thin skull)
Rule of Law: Defendants take plaintiffs as they find them – if you get into a car accident
with a 14 year old with severe emotional problems, and the accident tips her over the edge,
you take the P as you get them…tough luck – it is not unforeseeable – an unforeseeable
extent of injury does not create a proximate cause defense. Thin Skull Case/egg shell
plaintiff (D takes his P as he finds them)

Rule of Law: A negligent party is responsible for the probable, or reasonably foreseeable,
consequences of its negligent act.

Wagon Mound # 1
F: There was an oil spill that released oil into the harbor that’s floating on the water. A
supervisor for Morts Dock & Engineering Co., Ltd. (P) asked a manager of CalTex Oil Company
about the oil, and the manager assured him that the oil was not flammable, but a fire, caused
when welding materials fell through the dock into the oil on the water, oil caught fire and both
ship and dry dock = destroyed in the fire. Dry Dock Sues.
P: Says that it was foreseeable that the oil would catch on fire.
D: Says that it’s not foreseeable - Oil not supposed to catch fire bc assured by manager that oil
in water does not burn. At the time they did the act they did not know it would burn - was the
fact that it would burn foreseeable.
H: Court uses DR and says that the fire was unforeseeable, a reasonable person wouldn’t have
known that the salt water would burn. This is like Palsgraft (they were negligent but wasn’t
foreseeable). D not negligent.
Court holds that it wasn’t foreseeable that the water would catch on fire. Though the Defendant
was negligent, they didn’t negligently create the risk of fire.

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Wagon Mound Cases: Suit against the dock.
WM#1: Ds ships spill oil into the bay. Some of the old adheres to Ps wharf. The oil is then set
afire by some molten metal dropped by Ps worker, which then ignited a cotton rag floating on
the water. Ps whole dock burns.
D argue: (Defense = DR) We were CIF, but not PC. Dual risk. It is foreseeable that we could
cause some beach damage with escaping oil, but an explosion of the dock is not foreseeable
from us cleaning out our tanks
P: (dry dock suing) In trouble. They were doing work on the dock, if they prove foreseeability,
they would be contrib neg. But D spilled the oil into the water, so they were negligent.
H- D wins. D is not liable because the burning of Ps dock was not the foreseeable consequence
of Ds oil spill, and thus the oil spill was not the proximate cause of the damage. This is true even
though the spilling of oil was the cause in fact of the burning.
Rule: They could not foresee that someone would be scraping flaming paint into the oily water
that would start a fire, only foresee contaminating beach (Palsgraf)

Wagon Mound #2: Same facts above, P was ship owner whose ship was destroyed. P lawyer
brought in new evidence was brought in by P that said that spilling oil creates a foreseeable risk
that burning will occur. P (ship) did not want to bring this up initially because then P
would be contributorily negligent for dropping molten metal in the water. It was a
complete defense in those days so they would have lost.
P: No Contrib worry, so they introduced expert evidence that danger was reasonably foreseeable
by the oil tanker engineer (should know that spilling that amount of oil can cause a fire
somehow – CHICKENHAWKS!) Dual Risk Disappears, No PC, so negligent.
D: (Defense = DR) : Still stick to DR doctrine but same law can lead to different results bc of
fact changes: If you adopt Dual Risk - then the negligent act must be foreseeable. As a result,
the dual risk disappears as the spilling of the oil in the water becomes negligent (is an
aspect of Ds conduct) as it is was shown to be foreseeable after all.
H:While P is contributorily negligent, it does not get D off for the greater harm of spilling oil in
the water when they know or should have known it could burn something. (if everyone knows
that they could cause fire by scraping paint into oily water, then they would have been held
liable for contrib. Neg) P WON

Both decisions are consistent w/ Palsgraf doctrine because the risks were foreseen. In
#1 it was not shown to be foreseeable, and in #2 they showed that it was foreseeable.
Remoteness/ Intervening Cause: Not only time, but the policy of risk created.

Major difference between 1 and 2 is change of Plaintiff.

Wagon Mound # 2
F: Same facts as Wagon Mound No. 1. Ship sues
H: This time there’s testimony that it’s foreseeable. And the Ship wins.
When there is reliable testimony. This is a change in factual proof. The ship wins because the
testimony shows that it is foreseeable.
Aside: In the dock case, they couldn’t say that they knew that everything would burn, because
they would have been contrib. (they were sitting there watching the guys scrap the paint off)
People that own the dock are the same people that are overseeing the burning and the paint
scraping. They couldn’t prove foreseeability because then they should have foreseen it too

Petition of Kinsman Transit Co

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F: Ship gets tipped sides, floats down a river, creating a dam and causes flooding
H: Doesn’t follow dual risk. Though this risk wasn’t necessarily foreseeable, the defendants
should have been alert to any possibility of danger.
If it is foreseeable that a risk could be created even if the exact risk doesn’t happen, the
defendant is still liable

Generic PC issues – Remoteness, unexpected consequences & Intervening Causes –

Polemis – negligent if its foreseeable that anyone could be injured—REMOTENESS—the
immediate consequences of the accident are gone and the remaining ones are non-risk related
consequences (for ex, driving down the road a half an hour later does not cause risks; if he gets
a broken leg and he gets out of the cast he is never the same, he may have a scar, but its not
risk related to put him at further harm of risk) different but not in a way that causes harm…the
boat is still continuing in ways that create danger, with the car the consequences continue, he’s
late, but they don’t carry risks of danger.

Passage of time
Intervening cause
Unexpected circumstances

Passage of Time / Remote

Safe Harbor – ripples are quieted, out of the harm created by the negligent conduct.
Person that is in a parking spot fixing his car after an accident
Woman in the hotel room that catches on fire

Remoteness / Foreseeability – too far, too long ago

Dynamite Cap case

Intervening Cause: Two kinds of intervening causes:

 Dependant (foreseeable from the point of view of the defendant before the accident)
Brower – Wagon that gets in accident with the train and the train has guards but he gets
robbed

 Independent (something outside of the reasonably foreseeable risks)

*Negligent Interveners
--Guy ashes on the ground and there’s an oil spill
-Defendant is liable, its foreseeable
*Intentional Interveners
--Watson – guy purposely drops the match on the oil spill
-Not liable for criminals

Unexpected Consequences

Danger (injury) invites rescue – if someone is injured by negligence its foreseeable that
someone would come to their rescue
*Cousin Herbert
*Car still in the building after an accident, person is getting it out

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 Emergency service workers don’t count because they assume the risk, its duty
Tow truck drivers aren’t emergency workers, don’t assume the risk

Andrews: negligent risks created dissipate over time and are mixed with other risks that could
happen and once they mix it is no longer fair to go back and say that the person who did it or
put it in there is responsible. Chain of causation - so many other things happened that it no
longer the same.

EX: Pond - someone throws rock in pond - water ripples. Round pond so eventually ripples hit
shore and it is flat again. But pond is forever changed - bc now there is a rock there. However
the immediate effect of all the ripples is gone. Andrews view is that when someone stubs there
toe on the rock (that was negligently put into pond) and he trips and drowns. Even though you
can track it back to the rock thrower now you are just left with the world being different and it is
unfair to hold D liable. Other things intervene that we know about or it was so long ago there
there must be many intervening things that we don't know about.

Unexpected that two chicken hawks are going to fight but that is not PC defense - metal fence
lying by wire bc something could come in the gap - this is not an unforeseeable risk or this is a
unexpected foreseeable risk - problem is it is not so easy to tell the difference.

*Just being in a different place is an end to the ripple - risks end (as long as it is a
normal place to be)

What is a PC foreseeable event and what is an unexpected foreseeable event.

City of Lincoln Hypo

F: Two ships crash and neither ship sinks. One is damage and goes off, but eventually sinks
because it can only go left and can’t steer out of danger.
P: Says that the damage is what caused the ship to sink. No break in the chain, the same
damage continued to afflict. The original foreseeable risk caused the injury, even though it was
later
D: Says that it’s too remote, it happened well after the accident.
H: Says that nothing interfered in between. Though the incident happened later, the original
foreseeable risk caused the injury. There was no break in causation.

Change of facts - damage by storm which was not predicted would that change anything?
Storm = remote. Remoteness and intervening cause.

Whether or not the intervening cause is an independent intervening cause and therefore D is not
liable but if it is a dependent intervening cause D is liable.

Independent from what? = independent form risks created by D (not foreseeable) not in
range of risks created by Ds conduct.

Dependent? Chickhawks = something you would not expect but in the range of risks created by
Ds conduct.

Independent = criminal intervention.

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Car accident and you are physically injured in the car and someone comes along and mugs you
and you are physically injured by mugging.

Train wreck and as a result of damage to truck thieves come and steal it all.

D did not cause risk bc thieves not foreseeable. Thieves can attack anyone anywhere =
ubiquitous.

Central of Georgia Ry. v. Price

F: Railroad stops running, so they put up everyone in a hotel. The hotel catches fire and one of
the people that was on the train gets hurt.
P: Says that if it wasn’t for the railroad I wouldn’t have been in the hotel, they are the cause.
D: Says that it was too remote. The danger of the broken down rail road had passed.
H: The foreseeable dangers from the negligence had passed, they had safe harbor.
Once the foreseeable dangers of the negligence have passed (ripples have stopped)
the defendant isn’t liable for subsequent injury. [Are still cause in fact but not
proximate cause]
Manner and nature aren’t foreseeable, its foreseeable that you could freeze outside or
get attacked by a wolf while outside the train, but not that the hotel will catch fire.

Train/Hotel burn hypo: RR hits the back of A's car but A is not hurt. He is stuck in the middle
of nowhere so he rents a hotel room. Hotel burns and he is burnt.
P: I was stuck in the middle of nowhere b/c of your neg. RR driving.
D: no duty. There was an independent intervening cause. Not our fault. The risk has passed. Not
in the situation before, but in a different, supposedly safer situation.
H: D will not be liable since we do not want D to be liable for everything. It was not foreseeable
that hotel would burn in a safe area.

Can in Manhattan Hypo

F: Plaintiff is driving his car and due to the negligent driving of the Defendant party, he gets hit.
The fender is bent and pressing against the wheel. So he pushes the car into a parking spot on
the side of the road. He unbends the metal and goes into his trunk to get the spare tire. While
be hind the trunk, a car pulling into a spot 2 cars behind him hits the car directly behind him and
it smashes into him and breaks his legs. He doesn’t sue that driver (has no money or insurance)
he sues the original driver that hit him and caused him to be on the side of the road.
P: Foreseeable that I could be harmed from the accident. Still on the side of the road, haven’t
cleaned up for the accident.
D: This was a remoteness/intervening cause case. The second guy that caused the accident
intervened after the dangers from the original accident passed. Anyone could have been hit
getting a package out of the trunk on the side of the road, parking in a legal spot isn’t unsafe.
H: Foreseeable risks of an accident don’t include being hit by a car while lawfully parked on the
street. Otherwise anything negligent that caused you to be parked on the side of the street
would be proximate cause.
Foreseeable risks of an accident do not include being hit by a car while lawfully parked
on the street.

Rule of Law: If a third person intervenes and acts to contribute to the injurious effect of the
original negligence, and if such an act ought to have been foreseen, the first wrongdoers will not
be excused from liability (INTERVENING CRIMINAL ACTS, IF FORESEEABLE, DO NOT RELIEVE
THE ORIGINAL TORTFEASOR FROM LIABILITY)

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Brower v. NY Central & H.R.R:
F: Railroad hits the vehicle and the valuables are left on road. They get stolen and the driver of
the vehicle sues the railroad.
P: RR caused the stuff to fall out of the vehicle. Further it was foreseeable because they had
guards on the railroad to prevent theft. They should have guarded my stuff too. Defendant was
aware of the risk of leaving unprotected property in that area and an independent intervening 3rd
person will not break the chain. Risk perceived is the duty defined -
D: Says unforeseeable.
H: This was a dependant intervening cause. The railroad knew and guarded against the risk.
The court held that a dependant (unforeseeable prior to accident) intervening cause
did not eliminate liability, only an independent (foreseeable) intervening cause did.
Because the railroad employed detectives to ride their train to protect against theft,
the court ruled that theft of the items was foreseeable and should have been used to
protect the plaintiff’s items. (RR established that it was foreseeable bc they hired
detectives)

Change of facts: Train going 1500 miles to FL - at various stations they have hired security
(scattered in cities along the way) but there is a desolate stretch in southern GA - accident
happened here about 75 miles north of FL border.
I:Is P going to win or D going to win on PC?What fact do we need to make risk foreseeable?
H: Close to station. They had security bc they foresee thieves - if property was unsecure then it
was likely to be removed or stolen. But it has to be right where it happened. = fact that makes it
foreseeable.

Rule of Law: A negligent act can give rise to situations that create additional risks and render
the wrongdoer liable for injuries that could not be foreseen. (A CHAIN OF EVENTS TRIGGERED
BY NEGLIGENCE CAN INCREASE LIABILITY)

Marshall v. Nugent:
F: There’s an accident and the car is stalled on the side of the road. Driver comes around the
bend (its dark and icy) and doesn’t see the other car until it is too late and gets into an accident.
P: Proximate cause, the original negligence caused the accident. Chickenhawks PC: Maybe
unforeseeable specific facts (like P being hit by a flying post), but it is foreseeable general event
(when D causes P to skid off the road, it is generally foreseeable that some kind of further injury
will occur. “Some kind of danger” *D’s risks are not over after act. They last until the event has
passed.
D: Says they didn’t cause the second accident, their negligent act was done.
H: The ripples were still in effect, the accident hadn’t been cleared.
The ripples haven’t cleared after an accident when it has not been cleaned up yet.

Accident 1 Car is pulled out of snow bank and drives away. ½ hour later, the car is hit at a train
crossing. P sues original D again.
P argues: If the D hadn’t been a negligent driver, he wouldn’t have been a ½ hour late and I
wouldn’t have been hit by the train. Your neg was the PC
D: Not the PC. Remoteness PC: The danger created by the accident no longer existed.
The doesn’t make me responsible. “The ripples ended”, the D will always be ½ hour late, but
the D should not be responsible after a period of time. There was intervening causes.

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P argues back: I may have still emotionally been effected and that strain caused the train
accident. . .Nothing broke the chain of causation and D is liable b/c the ripples haven’t ended.

Accident 2 - P got in an accident by another driver...Fender smashed against tire - so pulls

into parking space at meter on west side of 3rd ave just north of 80th street...second car - there
was a meter behind it (car behind it) and he pulled into corner. He is now getting jack out of
trunk and standing in between his car and car behind him. Along comes Mary driving in another
car heading north - using cell phone and loses focus for a min and smashes into car behind our
guy. That car bumps forward and smashes P in between two cars. Interest is not Mary bc she
has no money. Now we are trying to get the initial driver to be liable...

D: Not PC - not liable bc he got to the parking spot = safe place. Therefore the causation
continued but the PC has been severed and the D is not liable.

Accident (change of facts) P was in between two cars and he wasn’t looking for stuff in trunk
he was a little dizzy from the accident and he was leaning on trunk of car when Mary comes
along...
P: ripple effect did not subside yet. Argue that he was not in a safe place
D: Ripples end when you are in a safe normal place. Foreseeable risks had ended.
H: injuries were foreseeable and were the natural and proximate cause of her him being
there. Therefore still not a safe place for him - he wouldn’t have been there if he wasn't
physically injured. (credible argument - but prob not going to prevail)

Watson v. Kentucky & Indiana Bridge & R.R (Ky. 1910)

F: There’s a gasoline spill from an accident. Something falls into the gas and causes a fire.
P: Will say that it was a negligent intervention, it is foreseeable that someone could ash into a
gas spill and cause an large fire.
D: Will say that it was malicious / intentional, it was an intervening cause and couldn’t predict
that someone would purposely set the gas on fire. Criminals should have responsibility and
shouldn’t be able to exploit the situation, can’t protect against them.
H: Who will win depends on how the match
Not responsible for the intentional intervention (of criminals) if the criminal activity is
not foreseeable. Are responsible for the negligent actions of an independent
intervener.

The foreseeability of criminal intervention is a question of fact

• Are you in a dangerous neighborhood? Are there a lot of crimes, etc.?

Railroad Catch Point Hypo

F: Rail road with a lot of tracks, the car come down one track down a hill. The car can be locked
(screwed down so it can’t move), there’s also a catch point. Some teens break into the locked
car, undo the screw and push the car down the hill and it hits someone.
P: Says negligent should have set the catch point or had better security because there have
been a lot of break-ins. The kids are a dependant intervening cause because of the break-ins
and the thefts.
D: Guards were doing what they were supposed to do, wasn’t the guards. And the kid was an
independent intervening cause. They were aware of the break-ins but had no indication that it
would bet pushed down the hill, all we could foresee was theft or destruction. Further setting the
catch point wouldn’t have mattered, if they were determined enough to unlock the car they
would have unlocked the breakpoint too.

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H: Agrees with the defendant.
Being negligent doesn’t necessarily mean that the defendant will lose if it can be
shown that the negligence wouldn’t have mattered anyways.

Gas station : Oil leak that starts a fire - any difference if someone looks around and thinks no
one is watching them and intentionally drops a match or someone is lighting a cigarette and
accidently drops it in the puddle of oil.
• Foreseeable that if you have flammable stuff all over something might set it afire
• Clear that pool of gasoline is a dangerous thing bc it could start a fire
• If fire could be started accidently then why isn't pyro foreseeable
• Now all of a sudden there have been a lot of fires bc economy is bad and people are
starting insurance fires
• In case of arson - person : building that burns nature: fire but manner is not foreseeable
(arson is not foreseeable).
Is arson foreseeable? Since it has been prevalent bc of insurance fraud (allegedly?)

* What if it was intentional? Like a pyro drops match and P's car blows up?
If an intentional act is caused by a criminal, the act is not foreseeable and P can't sue tanker.

• Not responsible for criminal intervention that causes injury. Reason why Pyro is not
foreseeable is bc criminals are ubiquitous and it is not foreseeable unless there are facts
that show it is foreseeable. (Aforementioned Watson case).

Pyro hypo: D is driving a oil tanker. Turns too fast and gas falls onto the street. A few hours
later, a car is driving down the street and spark is created. Blows all up.
D: PC. The spark from P’s car is the independent intervening cause that breaks the chain.
P: your negligence was the PC and the risk created doesn’t break the chain of causation.

*Higher duty to take affirmative action to care for people in certain circumstances
Hotels have an affirmative duty of care
So do landlords and people who own property

Connie Francis Hypo

F: Woman in a hotel, someone jumped on the roof to get into her balcony and went in her room
and raped her. The balcony had no lock. There had been no previous rapes, but there had been
thefts where they didn’t know how people would get in.
P: Foreseeable due to the fact that there had been thefts this isn’t a big stretch.
D: Not foreseeable that someone would jump on the roof and get to the balcony.
H: Court says that it is foreseeable and the hotel should have seen the danger of someone in the
room alone.
Hotels have a higher duty of care and should foresee the vulnerability of someone in
their room alone even if no one has been attacked before and there’s only been thefts.

Wagner v. International Ry
F: Plaintiff gets injured while looking for his cousin who fell out of a railroad car.
P: The railroad negligently caused the injury of my cousin and I had to find him.
D: The chain of causation was broken, we did not cause the plaintiff’s injury only the cousin.
H: Danger invites rescues, the railroad should foresee that the plaintiff would try to save him

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“Danger (injury) invites rescue” foreseeable consequence rescuers would be in danger & are
intervening causes (injured rescue workers cannot sue b/c they are inviting injury by their
rescue efforts)

Virden v. Betts and Beer Construction Company (sole PC case)

• Construction worker hired to fix an angle iron that had fallen from the ceiling – while
fixing he fell off a ladder and sustained injuries
• P sues contractors (D Betts and Beer Co) who had earlier installed the ceiling claims PC
• Injury invites rescue...
• Court says the injury was not foreseeable – this was a routine repair – the injury is too
remote - their negligence was not the PC of Virden's injuries.
Doctrine sole PC: D should not be liable even though he did something wrong -

Danger (injury) invites rescue: Rescue doesn’t have to be people

• If you are still cleaning up a mess after an accident this counts as danger
o If you are still cleaning up the mess then there’s still a need to help
• Foreseeable that will cause injuries that will cause the intervention of people that will try
to help Helpers are foreseeable

Hines v. Garrett, 108 S.E. 690, 695

F: Woman is taken beyond her station on a suburban train. The train was supposed to notify her
when her stop came up. She walks home a mile and is raped twice (quintessential bad
neighborhood)
H: It was foreseeable and everyone knows it, she wasn’t put out of harms way.
When an event is foreseeable even though the accident is over, you have not removed
the danger.

Henderson Case
F: Guy is a rapist / murder, he’s doing public work on a chain gang and he breaks away and
rapes a woman.
H: It’s foreseeable that if he escapes he’ll rape someone but its not foreseeable that he’ll rape
this particular woman. Plus as a policy argument the gov’t benefits from these people working
and doesn’t want to be liable for them.
Policy says that we don’t the government to be liable for those who escape from chain
gangs because they will eventually be liable for those out on parole. Further the
specific person in this case was NOT foreseeable, the manner and nature aren’t
necessary foreseeable either (not sure that he’ll rape again only a break-in or physical
injury is really foreseeable)

Analysis - Rape cases Henderson and Hines

Henderson: The D’s company leases convicts for mining and negligently permitted one to
escape. He rapes P. D is not liable.
Hines: RR takes P one stop further than they should have. She walks back and she is raped. D
is liable.
Why the inconsistency?
• In Henderson, the “person harmed” was NOT foreseeable. It was too unpredictable. Can’t
make the D liable for all acts Henderson might commit. That would be ruinous liability.

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 • In Hines, the “person harmed” was foreseeable. RR had a duty to her, it was foreseeable
that she would be assaulted in that area. The RR knew the type of area it was and that
after dark she would be exposed to risks bc she is vulnerable and in a dangerous area.
The type of person here is Key.
• Henderson: Iowa about to sell all prisons to private companies. Coal company had a
bunch of prisoners who worked. He escaped and raped victim. Coal company being sued.
They were negligent in letting him escape. Defense is PC.
• In Henderson, the "person harmed" was NOT foreseeable. It was too unpredictable. Can't
make D liable for all acts Henderson might commit. That would be ruinous liability. In
Hines, the "person harmed" was foreseeable. RR had a duty to her, it was foreseeable
that she would be assaulted in that area. The type of person here is Key. Henderson can
also be paralleled with police. If someone escapes, cannot put all the blame on them since
it would be provide ruinous and endless liability. Woman raped by convict (still confined)
employed by coal company.
P: claims PC - uses Hines case - its foreseeable he's a rapist.
D: it was not foreseeable - too unpredictable. Not direct result of coal company hiring
criminal - criminal who escapes and rapes a woman...

If everyone is foreseeable then NO ONE is foreseeable

When you think of defenses you want to every defense that you can use.
• When you say proximate cause you are saying that I have no duty
o A. because you are too remote
o B. intervening cause
• I wasn’t negligent
o This will be decided by the jury
o Hope to not get here and that proximate cause will be thrown out before you get to
negligent

Proximate Cause Categories

Safe Harbor – ripples have quieted
• The person still out on the street, fixing the tire
• (this is better than the woman in the hotel)
Foreseeability / Remoteness
• Car stuck in the snow, still trying to get the car out and someone else comes out and slips
on the ice
o Could be chicken hawks
Remoteness
• Dynamite Cap, so far away and so long after that lots of stuff much have happened
Foreseeability based on prior conduct
• Duerr with the match
Foreseeability based on prior conduct
• Brower – railroad doesn’t protect the goods
 Not a defense
Danger (injury) invites rescue
• Cousin Herbert
Assume the risk
• This is a defense if it is a foreseeable intervening cause of an emergency service worker
o Tow trucks don’t count as emergency worker

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 Pure Policy
• Ryan– Fires and making people liable and then broke
• Mine / Chain Gang worker – not foreseeable against the specific person
Dual Risk
• Palsgraf
• Wagon Mound 1, Wagon Mound 2
o Distance of the dual risk so you can apply Palsgraf (or Gorris v. Scott)
 Must be a conduct that has not negligently created risk, at the same time a
negligently created risk, and the non-negligently created the risk happens
• Single action creates both a negligent and non-negligent risk

V. AFFIRMATIVE DUTIES:

Affirmative Duties

• General Rule: No duty of Affirmative Action. There is no affirmative duty to act, even
of aware of the risk and have the capacity to help.

Duty to Rescue:

Expansion of common law - it used to be that you had NO DUTY unless you caused the
injury now you have to under these duties:

Affirmative Duties to act if : SCRAP

1. Statute
2. Contract
3. Relationship
4. Assume the duty
5. Wrongful Peril caused by your actions
Exceptions to No Affirmative Duty
• 1. Statute
• 2. Contract
• 3. Relationship
• 4. Voluntary assume the Duty
• 5. Wrongful Perils is caused by your actions

1. The duty to do no wrong is a legal duty. The duty to protect against wrong is,
generally speaking, a moral obligation only, not recognized or enforced by law.
2. Strict liability would narrow the need for creating any fresh duty in tort to take
affirmative care, given the prior dangerous situation.
3. If an actor knows or has reason to know that he has caused another bodily harm,
the actor is under a duty to exercise reasonable care to prevent further harm.

Nonfeasance – don’t do anything (just watch kid drown)

Malfeasances (same as misfeasance) – do something to help but it causes injury

Yania v. Bigan

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F: D urged P to jump into a well which he did and died by drowning. D did nothing to help P
when he was in there.
P: You have a reasonable duty to take steps to save another person.
D: No legal duty to rescue unless you're legally responsible for placing that person in danger.
P voluntarily placed himself in that position of danger & is alone responsible.
P argues: The child B relied on the statement that A is a good swimmer. This MAY create an
affirmative duty of action.
D argues: No duty to act. No violation of duty you don't owe.

Waterfall Hypo
F: Dangerous water fall. A college kid jumps in after his friends tell him not to. He doesn’t come
up so his 2 friends jump in after him. All three die in the water.
No duty to rescue because many people who can’t rescue put themselves in peril.

Gratuitous Undertakings:

Assume the duty : Gratuitous undertaking and now you are liable when you otherwise would
not have had the duty to help (good Samaritan)

Reasons Why There is No Duty to Rescue

• People don’t know when they can or cannot help
• You can cause more harm than good
o i.e. moving an injured person
• Officious intermeddler
o i.e. interfering when you think someone is getting attacked and it’s a movie set

Doctor Assisting in an Accident Hypo:

F: Doctor sees an accident. Can he drive by or must he help?
Doctors don’t have a duty to assist when they are not on duty because they are liable
if something goes wrong (for ineptly helping) (they probably don’t have their
equipment, and it’s not unreasonable that they will cause harm.

Good Samaritan Statutes

• Not a lot of protection
• Not in all jurisdictions

Duty to Rescue Exists in Europe

• Universal medical care & damages are likely to be more modest

Reciprocal Risks
• Shouldn’t recover millions if you have an injury
• But you can be on the government dime for life
• Liability and financial responsibility go hand and hand in law making

Zelenko v. Gimbel Bros.

F: Guy gets sick in the store, the defendant puts him in a room. They leave him in the room and
he gets worse and dies
When you assume the duty you to help and you negligently cause additional injuries or
prevent the person from receiving adequate help you are liable.

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By putting him in back room - they eliminated the possibility of others helping. Not
completely clear if you start to help and then stop but your action did not deprive the person of
assistance by anyone else that you would be allowed to stop. The problem is that this is not an
action that is favored. Even if you are not leaving him any worse off - you still might be
preventing him from getting help...

Helping Someone on the Side of the Road Hypo

F: Pick up a guy on the side of the road, realize he’s bleeding and put him back
P: He robbed me of the chance of getting help
D: Not negligent because I put him back in the same position and didn’t cause any additional
injuries.
H: Can’t prove that you put him back in the same position.
If you assume the duty to help, you have the obligation to complete the assistance
because if you do not you are taking the chance of rescue away from the person.

Montgomery v. National Convoy & Trucking Co

F: Truck stalls on an icy road without acting wrongly. They put out flares but not out far enough.
A car comes around and gets into an accident.
Have a duty to reasonably prevent injury. Have a duty to reasonably warn (or to
avoid), don’t actually have to warn but have to make a reasonable effort.

Moch v. Rensselear
F: Contract to provide water. While they were fixing the water a house caught on fire and burnt
down.
H: Courts say that there is no duty to a third party beneficiary. There’s only a duty of affirmative
action. This is a policy argument to keep the water companies in business
No duty to third party beneficiary of a water contract in NY (some other states have said there’s
a duty)

Prior to the Restatement

• You didn’t have to do anything if you didn’t wrongly create the injury

Old Affirmative Duty System – Didn’t have to warn because you weren’t negligent
• This was inefficient because negligence is decided by a jury and the jury doesn’t hear the
case until years after the incident.
o Obligations depend on a jury finding years later

New HYPO (illustrates assumption of duty): P is drowning and D goes in to save them. D
then turns around and goes back.
P argues: Voluntary Assumption of a duty. When you went out to save me, others saw this and
did not think they had to help. I was deprived of an opportunity to be rescued.
D argue: I was cramping up and I could not save you.
H- once D voluntarily begins, even if he was under no obligation to do so, D must proceed with
reasonable care.

Sick guy walks home in the Rain Hypo

F: P feels sick and works for a very considerate employer, its dark and stormy so the boss drives
him home so he doesn’t have to take the bus. About 3 blocks from the house there’s a huge

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puddle that the P can’t get through so the boss lets him out to walk. He gets extremely sick from
walking the distance in the rain and cold.
P: Gratuitous under taking, once you assist someone you have to duty to complete it non-
negligently.
D: No duty to assist and was not negligent.
H: Must act reasonably to not cause injury.
In a gratuitous undertaking once you assist someone you have the duty to complete it
non-negligently and not expose to additional injury.

Robbery Hypo P asks D to lock his door. D forgets and all of Ps stuff gets stolen.
D- I have no affirmative duty.
P- but you promised.
Here there is no consideration so it is merely gratuitous. What if P asked while he was hanging
out with D and 10 others? Here we might say P reasonably relied and on promissory estoppel
grounds, D would be liable.

Accident Hypo: P is in an accident and D stops to help- he puts a towel under his head and
goes out to get help. As he is searching, wife calls and tells him to come to dinner.
P- you dick, you totally forgot about me, you are liable for my injuries after you left since they
were exacerbated by me waiting there. You voluntarily assumed the duty to help once you
stopped to help. I then reasonably relied to my detriment. Moreover, others might not have
helped after seeing you helping me.
H- D is liable here, once he starts he has to continue helping in a reasonable way.

Coggs v. Bernard: Deals with a contract and promissory estoppel.

F: Bernard (D) agreed to move some casks of brandy for Coggs (P). D did not receive any kind
of payment for moving the casks. Due to the negligence of D, some of the casks split open and
the brandy was lost.
Black Letter Law: A promise undertaken, even if done without consideration, gives rise to a
duty to perform the promise without negligence (EVEN IN THE ABSENCE OF DUTY, NEGLIGENCE
MAY BE ACTIONABLE)

Erie Railroad v. Stewart

F: Stewart (P) was injured when a truck in which he was riding was struck by a train operated
by Erie R.R. (D) at an unguarded railroad crossing. Stewart (P) knew that Erie R.R. (D) normally
posted a guard at that crossing.
Black Letter Law: A party who voluntarily undertakes safety precautions that are relied upon
by others has the duty to continue the precautions, or to give notice that the precautions have
been discontinued. (A GRATUITOUS ACT, ONCE BEGUN, MUST BE COMPLETED).

Nonfeasance/Misfeasance:

Nonfeasance: when D has an affirmative duty to help, aid, or assist even though the harm did
not come from D. (not doing anything)
Misfeasance: D has an affirmative duty to act, they take action, but their action is
negligent/improper. (doing something)

Montgomery: Misfeasance Case. D's truck stalls on icy road. It wasn't their fault. D puts out
flares right near the truck. P came over the hill but by the time they saw the flares, it was too
late to stop and they crashed.
D argues: We owed a duty and we fulfilled it; we put out flares. We weren't Negligent.

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P argues: There was an affirmative duty to act because your truck was blocking the road, you
assumed the duty by putting out flares, but you put them in a negligent place and failed to
neutralize the danger you created.
H- D is liable in these situations. D would have to put the flares where people can see them and
avoid danger. Weird thing though is that if D put out no flares, he would not be liable as long as
he took reasonable care by trying to push his car or something, but once he assumed a duty, he
had to then take reasonable care, which he did not.

Moch Company v. Rensselaer Water Company

Facts: Rensselear Water (D) agreed to supply water to a city, but failed to supply water to fight
a fire that destroyed a building owned by Moch Co. (P).
D was a water company which contracted to supply water to city. Ps' warehouse was destroyed
by fire b/c no water was supplied to put out the water. P sues D.
P: One who assumes the duty to act, even though gratuitously, has an affirmative duty to
act. D negligently did not perform their K and should be liable.
D: P is not a third party beneficiary as the agreement was b/t D and the city. Also, no duty to
act b/c it acted gratuitously. Theory of Ruinous Liability. Cannot hold D liable for all when P
had a reciprocal risk to get fire insurance.
H- this case falls under nonfeasance, as opposed to misfeasance. Court rules for D, as a holding
for P would be ruinous to D and we cannot hold D liable to everything when P had reciprocal risk
to get insurance.
Black Letter Law: Negligence in the performance of a contract will not result in liability if the
negligence results only in the denial of a benefit, and not an active harm. (NEGLIGENT
PERFORMANCE OF A CONTRACT RESULTS IN NEGLIGENCE LIABILITY ONLY FOR “ACTIVE
HARM”)

Other times D has affirmative duty:

• Anyone who maintains business premises must furnish warning and assistance to a
business visitor, regardless of the source of the danger or harm.
• When Ds own conduct caused Ps injury.
• D and victim as co-venturers: if two friends went camping or jogging, they might
have affirmative duties to each other.
• D having a duty to control 3rd persons and not exercising that control: Example, D a
storekeeper, fails to take action when X, and obviously deranged man, comes into the store
wielding a knife. P, a patron, is stabbed. D would probably be liable for not taking action.
• Would be aforementioned assumption of duty. Once a D starts to help he has to
finish otherwise, it sets him up big time since all potential Ps can cry out promissory estoppel
as they reasonably relied to their detriment

Standard of care owed by owners and occupiers of land

Duty of possessor to those off the premise

Natural conditions -- No duty to protect one outside the premises

Artificial conditions -- No duty to protect except:
Unreasonable dangerous conditions created by the landowner.
Duty to protect passersby - landowner has duty to take due precautions to protect persons
passing by form dangerous conditions.

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Conduct of persons on property -- Owner has duty to exercise reasonable care with is own
activities and to control conduct of others on this property to avoid unreasonable risk of harm.

Affirmative Duties – Owners and occupiers of land:

Invitee – business guests (there for the benefit of the owner)

Duty to inspect (keep the premises safe)
Policy – making money off of them

Don’t win solely because they are injured, need to prove wrongful conduct or negligence, there
must be a violation of a standard of care.

Licensee – social guests: relatives, visitors, etc.

Duty to sufficiently (adequately) warn
Policy –same duty as the owner (owner gets no benefit)

Trespasser – have no permission

Generally No Duty to Trespassers
Policy – they are criminals

Known Trespasser – Are a trespasser but know they are there

Have a duty to warn, like a license

Attractive Nuisance
1. Must be an artificial condition
2. And they have to be lured onto the property
Reason that categories are bad is because they are like special duties and its not a good idea to
have special duties unless you know enough about the situation

Duty owed to Trespasser:

Generally owners do not owe any duty to trespassers.

⇒ The trespasser is entitled to “humane treatment” but not the ordinary duty of care.
⇒ You cannot intentionally cause injury.
⇒ You do not have to make your premises safe for unexpected intruders.

Attractive Nuisance Doctrine

⇒ the owner owes a duty of reasonable care to a trespassing child if all of these
requirements are met:
• the owner knows that the area is one where children are likely to trespass
• the owner has a reason to know that the condition poses an unreasonable risk of
serious injury or death to trespassing children
• the owner fails to use reasonable care to eliminate the danger
(a) The court is less likely to find liability where the condition is a natural
one than where it is artificial because the idea is that a natural pond or
something a kid who grows up in the area will know about
Fireman’s Doctrine

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 ⇒ A fireman, police officer, etc. will not have a cause of action against a homeowner for an
injury occurred in the course of their job, provided the injury occurred in a manner
reasonably foreseeable in the normal course of their duty.
⇒ Three Categories of Relationships: (eliminated in NY-NY requires ordinary standard of
care to everyone; CA has merged invitees and licensees under the invitee duty)

1. Trespasser - No general duty

Exceptions:
• Constant trespass on limited area
• Known trespass
o Know or should have known that they were there.
o Owe a duty to them.
o Legal effect is that these trespassers are treated as licensees.
• Trespassing children (owner is more liable than to regular trespassers
because of the attractive nuisance doctrine)
o Applies to a non-natural condition.
o It must be unreasonably dangerous to a child.
o It must have lured them onto the property of their own volition.
o The child must be unaware of the danger.
o The basic question is whether the owner knew or should have known of
the danger it presented to these children.

2 conditions that make D not liable:

If kid is lured onto the land by someone telling him about it and not because
of the attractive nuisance then that is an independent intervening cause and
breaks Ds liability.

Pond/trees or natural risks or conditions of the property don't make D

liable. Kids should know the risk. Pools are different.

2. Licensees : Social guests or people who have permission (express or implied) to enter
the property. Duty to warn of known dangers.

3. Invitees: Business guests; Person invited as a member of the public; invited onto the
premises Duty not to be negligent and protect from known and unknown dangers.
Reasonable efforts to inspect are required.

P must show:
⇒ There is a dangerous condition present on the land which the owner is aware.
⇒ The owner Knows/ should know that Young people frequent the vicinity.
⇒ The condition is dangerous because of child's' inability to appreciate risk.
⇒ The expense of remedying the sit. is slight compared w/ the magnit. of the risk. B <PL

CA has 2 categories

NY has one category with the same duty to everyone including trespassers — The condition
exposes people to a risk of getting hurt and a criminal should not be excluded from
the protected class. P argues that it could have been someone else; the D argues that he

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 may have had planned to have them fixed next week or made efforts to warn everyone who
comes in—it becomes an issue of fact.

HYPO: Someone goes into office building (this was before there was hardcore security) and go
to the candy store - if you walk out back door of lobby and go out an airshaft and on one side
there is a mail shoot - one day P goes into lobby and goes outdoor of lobby to mail something
and a brick falls on his head - D says he is trespassing - P says I'm invited in this space to do
business - I'm an invitee - didn’t know about dangerous brick and D has duty to inspect.

Guilford v. Yale: P was in Yale when he went outside to pee, but he falls and gets hurt.
D- I owe you shit because you are a licensee.
P- wrong bitch- I am an invitee because you are soliciting money from me, therefore you are
liable for not asserting a reasonable inspection to find hidden dangers or at least give me a
warning. You invited me to give money to the school as an alumni

Mother in law HYPO: Mother in law living with you - you left briefcase with papers in it - she
cant find it and you think it might be in basement - while going down into basement she falls
and trips on a step nobody knew about. She is clearly not a trespasser - normally bc she lives
there she is a licensee (like if she was doing the laundry), but bc she was doing it for him and
his business purposes she is an invitee.
P - she wouldn’t have gone down to basement but for D needing basement papers therefore is
an invitee

Rowland v. Christian (California court): P entered Ds apartment upon Ds invitation. While

using the bathroom, a fixture broke and severed tendons on Ps hand. There is a generalized
duty to keep your property safe for those that you invite on it.
I: The issue here is whether P is a licensee or invitee. If P was a licensee, D did not have to
inspect for unknown dangers. If P was an invitee, D would be liable.
H- court said that the distinction between licensee and invitee is too complex and has no basis
for policy. You owe a duty of reasonable care to everyone and thus would be liable.
Dissent: social guests ought to take the premises as they find them.
**Becomes hard to tell if someone is a guest (invitee) or licensee and especially hard if
someone is coming on your property to profit from you. So categories don't really conform to the
way people actually live.

Path on Property Hypo

F: Path in your yard that people cut through. You build an irrigation ditch and someone trips and
gets hurt.
P: We weren’t thrown off the land, the owner knew we were there and has never stopped us
D: They were trespassers
H: Known trespassers
Have a duty to known trespassers, don’t have to know that they were there at that
moment, but have to reasonably know they could be there. Reasonable person knows
or should know the trespassers could be there. Have to warn them of unreasonable
dangers.

Shooting Trespassers Hypo

F: People trampling on the property, so guy shoots the trespasser.
P: Says can’t shoot people, can’t intentionally cause injury
D: Says no duty to trespasser
H: Can’t shoot people who trespass on your land

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No duty to trespassers, but cannot intentionally cause injury.

Known trespasser
• Idea behind is if the owner is affirmatively aware that trespassers will be there, you can’t
say that you know they won’t be there

Path on Property Hypo 2

F: Still a path on the grass so the defendant knows that people are cutting through. She puts up
a fence and it gets torn down. She puts up another fence and again it gets torn down. She puts
up a third fence and then digs an irrigation ditch. Someone climbs over the fence and gets hurt.
P: Known trespasser she knows or should have know the fence wouldn’t stop people
D: Trespassers
H: She knows that people are tearing down the fence and climbing over it. She would have to
wait until they stopped before saying that they aren’t known trespassers anymore.
Even if you try to prevent trespassers, if you know or should know that the barrier
won’t stop them, you are still liable to known trespassers. Have to wait until the
trespassing stopped

Kids are a special case

• They are already treated as a reasonable kid of their age
• Children tend to trespass
o They are not likely to prevent the same risk as a stereo type trespasser (aren’t
typically up to no good)
o Not there all the time
• Sometimes they are there and sometimes they aren’t there

Sioux City & Pacific R.R. v. Stout, 84 U.S. 657, 661 (1873)
F: Turntable - Kids were standing on it, playing on it (it moves slowly and turns), Get caught and
crushed, doesn’t die but is hurt.
P: Known trespasser.
D: RR says trespasser
H: The turntable for the railroad isn’t unreasonably dangerous. But the defendant knew that kids
could be there. It was an artificial condition, kids like to play on it, it has dangers that the kids
might not understand and it lures them on to the property.
Attractive Nuisance: Only applies to kids, must be an artificial condition of the
property and must lure them onto the property.

Attractive Nuisance doctrine

• Only applies to kids
• 1. Must be an artificial condition
o Because presumably kinds know the danger of natural damages
o For example if you have ocean front property, the ocean isn’t an attractive nuisance
• 2. And they have to be lured onto the property
• Attractive Nuisances in some areas might not be in other
o Pile of sand at the beach isn’t an attractive nuisance
o But a pile of sand in a construction site would be an attractive nuisance

Sulfuric Acid Hypo

F: 2 kids walking in the woods, well away from the road. They find an old factory and a pool.
They jump into the pool and it turns out to be sulfuric acid

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P: Attractive nuisance
D: Didn’t lure them onto the property
Attractive Nuisance must lure onto the property.

Big Tree Hypo

F: 11 year old, walking down a road in a surb/rural area, cuts through the property to get to his
friends house. Sees a huge tree, climbs up it and falls down getting hurt.
P: Says that the defendant had a duty to warn him
D: Says that 1. Didn’t lure him on, 2. Natural condition of the property
Defendant wins if the condition didn’t lure the child on the property or if it is not
artificial.

Falling Stairs Hypo 1

F: A Invitee (business guest) is in a house and the stairs fall on him.
Only liable to a invitee (business guest) if wrongful conduct or neglect caused the
injury. Must be a violation of the standard of care. Invitees don’t win solely because
they are injured must prove wrongful conduct or negligence.

Falling Stairs Hypo 2

F: A licensee falls through the stairs but he is warned.
P: Inadequate warning
D: The duty of care is to take reasonable care to protect him (knew of the danger so don’t have
to deal with inspecting) so the reasonable care is warning him
The duty to a license (guest) is not just to warn, but to adequately warn.

Rowland v. Christian
F: Guest cuts his hand on a faucet.
P: Says he was a guest, only had the duty to warn
D: Says that had the duty to inspect
Court abolishes the invitee / licensee distinction in California.

California
• Abolishing the distinction between licensees and invitees
• Permitted entrants and trespassers
o Permitted entrants were owed a duty of care depending on the circumstances
• Still no duty to trespassers

Some jurisdictions (i.e. NY)

• Abolished all categories
• Owe duty of car to every depending on the circumstances

Burglar / Roller stake Hypo

F: Burglar goes through a second floor window, slips on roller skate and hits head
P: Duty to all entrants
D: Roller skate is safe under a second floor window.
In NY, even if someone was a trespasser, would have no duty if the risk wasn’t
negligent (i.e. roller skate under a 2ndfloor window) – factual finding for the jury.

Burglar / Roller Skate Hypo 2

F: Burglar enters the building and exits through the back stairway and the stairway collapses.

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P: Still owe a duty of care because it could have happened to someone else, it was incidental
that I was a theft.
D: Not reasonably foreseeable that a theft would enter at midnight and fall through the stairs
Factual finding for the jury, likely to weigh in the favor of the thief because of
insurance

Criminals and duty of care to trespassers

• This leads to a lot of criminals getting hurt and jury verdicts in favor of the criminal
o Won’t cost the homeowner anything because they have insurance
• Criminals don’t assume a risk of permanent injury when rob
o Thief is not assuming a risk if they don’t know the risk exists
o Only assuming the risk of jail time
• Criminal activity is not a element of contributory negligent. Thieves are not negligent
simply because they are thieves

REMEMBER: NY a duty of reasonable care to everyone

• Degree of foreseeablity that the particular plaintiff is going to be injured, is the thing that
leads to the amount of duty that you owe
• The less foreseeable that that person would be there or that a person would be there in a
more legitimate way, this lessens the duty
• Standards is whether the thief is one of a group of reasonable foreseeable entrants
(becomes a chicken hawk kind of case)

In California
• There is no duty to trespassers

If not told where we are on an exam, the default is Nassau county

Pridgen v. Boston Housing Authority

Kid that was hurt in the elevator shaft
• Want the system to give them some compensation because the property did something
wrong

Ward v. K-Mart Corp

• Guy walks into a pole outside of the K-mart building that was in a dangerous position and
he couldn’t see it walking out of the store carrying a large object

Affirmative Duties – Special Relations

Special Relations
• Sometimes defendants should have greater duty to protect others than the normal duty
(reasonable care) because the normal duty of reasonable care also comes with no duty of
affirmative action
• The relationship between P and D, that the D knows that P is dependent on D, for certain
kinds of support or protection
o Since the D knows this, its not inappropriate to make them reasonable for providing
it
• Sometimes have the duty of affirmative care to protect from a third party, it depends on
the relationships

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 o If a person comes into a store with a knife the store owner likely has the duty to
protect the patrons
• Landlords have the duty to protect tenants when the facts show there’s reason to know
there may be crime in the area
o Can’t be a resident of the building

Special Duties/Relationships – Rule of Laws -

Certain (Special) relationships create an affirmative duty of care to others (this includes a duty
to warn).

Duty is to provide reasonable care (and to warn) and the reasonable care depends on the
situation.

In an apartment building attack, burden is on the plaintiff to show that 1. there was negligence
that allowed the person to enter (broken buzzer, etc.); 2. That the person wasn’t a tenant or a
guest of a tenant.

Doctor’s duties in special relationships: Doctor owes a duty to a third party in danger due to the
relationship to the patient, only have a duty if the threat of harm is reasonable (i.e. quarantine
cases or psych cases).

Examples of people with affirmative duties due to special relationships

• Hotel owners
• Common carriers (MTA, RR, airline)
• Stage coach driver in 1880
• Prison guards when people escape
o Risk perceived is the duty defined
• Schools have duty to protect students from harm (i.e. rapes) with sufficient security

NYC Transit Cop Hypo 1:

F: Transit Cop in NYC sees a guy slumped on the floor, intoxicated. Cop helps him up and out of
the station. Cop goes back to work and the guy falls down the stairs. The guy sues the cop (and
therefore the Transit Authority, because of master / servant)
P: Cop took gratuitous undertaking to help him
Undertake a gratuitous undertaking and you need to ensure that the person is
completely out of harms way.

NYC Transit Cop Hypo 2:

F: Transit cop removes someone again and same thing happens, but this time the drunk guy
was in a car.
The transit cop has a special duty to passengers on the train.

Trolley and Strikers Hypo:

F: Trolley takes a guy through an area where there’s a strike, the strikers jump on the trolley
and beat him up
P: Says the ticket collector and operator didn’t do anything to protect them and therefore they
are liable because they have an affirmative duty of care.
D: Says that he couldn’t do anything because of the force the strikers used

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Reasonable care depends on the nature of the situation even when its an affirmative
duty due to a special relationship.

Interracial Couple Bus Trip Hypo:

F: In 1961, appears to be an interracial couple (actually aren’t interracial because woman just
looks really light. Going north from Florida and stop in Georgia. Some guys that are talking to
the bus driver get on the bus and beat up the male because they think he’s a black man with a
white woman.
P: Bus driver didn’t’ take any action. Also the tour operator didn’t warn them of the danger.
D:
H: Had a duty of affirmative care, so the thugs beating him up don’t break the chain of causation
Special relation duties can include the duty to warn.

Apartment Attack Hypo

F: Woman gets on an elevator in a really large apt building in upper Manhattan . Man gets on
and sexually assaults her, she doesn’t know him and doesn’t recognize him.
P: Says that there was negligence in the security that allowed the guy to enter
D: Says he was a tenant or a guest of a tenant.
H: Depends on who the guy was
In an apartment building attack, burden is on the plaintiff to show that 1. there was
negligence that allowed the person to enter (broken buzzer, etc.); 2. That the person
wasn’t a tenant or a guest of a tenant.

Kline v. 1500 Massachusetts Ave Apartment Corp.:

F: Woman gets attacked in her apartment building. There’s declining security. And there was an
attack before.
Prevention of attacks in hallways and common areas is in the control of the landlord,
the tenant can do nothing to make it better, thus the landlord is liable if there is a
history of this type of risk (landlord has reason to know of the crime).

Level of security depends on the area the hotel/motel is in

• Hotels generally need less security because you go through the lobby
• The more notice the more duty

Wassell v. Adams
F: Woman is in a hotel and she opened the door to her attacker (thought it was her fiancé)
P: Says that the hotel had the duty to warn her.
Hotel didn’t have a duty to warn because any reasonable person knows not to open
their doors to a stranger.

Tarasoff v. Regents of University of California

F: Patient sees doctor a few times. Then the patient kills his ex-girlfriend. Ex-girlfriend never
knew the doctor.
P: 1. Failure to physically secure the patient and 2. failure to warn
D: 1. I didn’t have a duty. 2. I can’t tell because of patient confidentiality. Further tried to
confine the guy but the police didn’t think he needed to be confined.
Doctor owes a duty to a third party in danger due to the relationship to the patient if
he reasonably believes that the patient will cause the harm.
[Would look at facts, the records etc. to see if the doctor should have reasonably believed the
threats of harm. ]

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Doctor’s duties in special relationships
• Doctor owes a duty to a third party in danger due to the relationship to the patient
• Only have a duty if the threat of harm is reasonable
• This comes from quarantine cases
o Have a duty to quarantine when patient has a contagious disease
o Also if a suicidal person jumps out a window of a psych hospital, the hospital would
be liable for failing to secure.

Lawyer’s duties in special relationships

• If you know your client is about to rob a bank, you have an obligation to tell (this is a
future action)
o If he tells you that he did (already) rob a bank, you can’t tell anyone

Estates of Morgan v. Fairfield Family Counseling Center, FFCC (Ohio 1977)

F: Patient visits a doctor. He takes him off medication and tells him to come back if there’s a
problem. He never comes back and 6 months later kills someone
Once a person starts counseling the doctor is taking charge of the person.

In Virginia, as well as in some other jurisdictions

• They don’t follow the holding in Estates of Morgan

Emotional Distress

• Negligent Infliction
• Intentional Infliction

Emotional Distress - Rule of Law:

Negligent Infliction of Emotional Harm

Zone of Danger (NY) – 1. Close enough that you could have been the one injured & 2. Need to
be a relative

Dillon Rule (California) – 1. Need to see it happen & 2. Need to be a close relative & 3. Needs to
be foreseeable that the relative would be there

Intentional Infliction of Emotional Harm

For intentional infliction of emotional harm need 1. Emotional Distress and 2. Extreme and
Outrageous Conduct.

Negligent Infliction of Emotional Harm

2 Key problems of negligent infliction of emotional harm

• 1. How do you know anything happened?
• 2. What do you tell the defendant before he acts to avoid creating emotional harm?

Historically

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 • Couldn’t collect for emotional harm unless something else serious happens (i.e. had your
leg cut off) because it was believed that serious injuries had emotional consequences
• Compensated pain and suffering
• Historically needed contact (even if it was just a cinder)
• Physical manifestation – this used to be part of the emotional harm (needed an ulcer,
miscarriage (spontaneous abortion), etc.). needed to have a physical manifestation of the
emotional harm
o No longer need this

Two Approaches Negligent Infliction of Emotional Harm

Zone of Danger (NY)
• Person needs to believe they could reasonably be hurt and needs to be a relative
• Followed in NY
Dillon Rule (California)
• Need to see it happen and be a relative
• Followed in California
These approaches are virtually identical, they limit the liability to people who are there

What do you tell a defendant in negligent infliction?

• You tell them not to be negligent, don’t create risk of negligent physical harm
• Limit liability on the theory that you still can’t prove the emotional harm, but limit the
number of people who can sue that were either in the zone of danger or were close
relatives witnessing (Zone of danger or Dillon)
• Tell defendant not to be negligent and let the limited category of people collect

Ski Lift Hypo

F: Woman skiing was stuck on chair lift
Court ruled that you didn’t need a contract and could sue for emotional harm if stuck
on a chairlift.

Crossing Street (Zone of Danger – NY) Fact Pattern

F: Mom and daughter walking together and are 2 feet apart, if daughter is hit mom is in the
danger zone. If she’s 10 feet away or on the sidewalk not in the zone of danger
Also if the car hits a garbage can and the can almost hits the mom she’s in the zone of danger,
but if the garbage can goes the other way, can’t argue that the can could have hit her

Crossing Street (Dillon – California) Fact Pattern

F: Mom’s on the side walk watching and the daughter gets hit, mom can recover. But if it was
the live in nanny that had been there for 10 years, she couldn’t recover. Could be safely in the
house and see from a window. More liberal than NY.

Mall Parking Lot Hypo

F: Defendant hits a 16 year old in a mall parking lot. Dad sues because he saw the accident from
the car that the kid was running to.
In California – If the defendant reasonably can foresee (reasonably know or should
know) that the parents or close relative will be around he’s liable (classic example is a
school bus stop). Here the kids can’t get to the mall by themselves.
In NY – No recovery wasn’t in the zone of danger.

Garage Repair Shop Hypo

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F: Dad is picking up his car at the repair shop and brings his 11 year old son. Guy runs over the
boy’s foot, dad doesn’t see it but hears him scream. Negligent in not looking.
NY – Zone of Danger: Can’t recover if he was 20 feet away, but if he was 3 feet away with his
back turned he was in the zone of danger.
California – Dillon: He’s a close relative and saw it happen. And the defendant should know that
adults would bring their kids to pick up their cars.

STD Lab Test Hypo

F: Wife goes to the OBGYN for a check up. The lab then calls and says she has an STD. Husband
gets mad, says she’s sleeping around and by the time they figure out it’s a mistake they are
divorced. Husband sues
P: Husband says negligent infliction of emotional harm.
D: Not negligent
Foreseeable that the husband would be someone reasonably affected by a STD (zone
of danger in an indirect way)

Elevator Hypo
F: 11th floor in a building. Playing ball, the elevator door opened and the kid goes in elevator
and there’s no elevator there
Zone of Danger (NY): Everyone heading towards the elevator was in the zone of danger, if he
wasn’t heading towards the elevator he probably wasn’t in the zone of danger.

Tricycle Hypo
F: Mom is in the kitchen on the 3rd floor apart driveway is outside kitchen window. She hears a
crunch and sees her son’s tricycle crushed and freaks. But the kid was in the back and wasn’t
hurt or anywhere hear the accident.
In NY she can’t recover not within the zone of danger
Dillon: Its foreseeable that the mom would be watching out of the window (but she doesn’t see
it happen, this is the reason you have to see in California to limit liability). Also its not
foreseeable that if you hit a bike you’ll emotionally distress people (not the proximate cause of
the emotional harm)

Funeral Hypo
F: Car hits the horse drawn hurts and the body falls out.
The court said that there wasn’t a hard and fast rule about zone of danger. It said that
essentially if you smash into a hearse and the body is thrown onto the street, you have to know
that the relatives will be distressed and you know that relatives are there.

Intentional Infliction of Emotional Harm

Intentional infliction of emotional harm is now its own separate tort

• Outrageous behavior with the intent to cause emotional harm and you cause serious
(severe) emotional harm
o Severe emotional distress
o This is the new tort that didn’t exist before
• 1. We have decided that we are able to determine who is truly emotionally distressed and
who isn’t
• 2. There is something identifiable (extremely outrageous) conduct that is so different in
degree
o Apart from its consequences

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 o Would be extremely outrageous even if no one was distressed about it

To be extreme and outrageous behavior and not a joke you need: Where’s the line between
• Emotional distress
o Depends on the end result, if an obnoxious person runs into someone emotionally
fragile it could end in emotional distress
• Extreme and outrageous conduct
o Depends on judge / jury

• This solves the problem of being able to sue for emotional distress
• But people will get compensated if they are emotionally fragile
o And also people who are good at faking it get compensated

Criminal Assault
• Intent (purpose) to commit battery
• Its putting someone in the fear of a battery
• Has to be offensive conduct, but any conduct not consented to is offensive
• In tort we understand that if someone swings and misses narrowly you can still have
emotional harm
o One reason to compensate is to prevent retaliation

False imprisonment
• Is a dignitory tort
• No physical harm
• Protect emotional state

False Imprisonment – Rule of law -

Accidental False Imprisonment: cannot sue for accidental false imprisonment because it involves
at least knowledge.

Negligent False Imprisonment: can sue for negligent infliction of emotional harm, because of
physical fear of the dark, etc. Also, you are in the zone of danger of the trauma of being locked
up.

Intentional False Imprisonment: can sue for intentional infliction of emotional harm.

Battery (just contact) requires

• 1. Intentional
o Not a purposeful act of domination, and the reasonable person should understand
that there’s no insult or loss of dignity
• 2. Express and Implied consent
o Consent in this case by consenting to the probable consequence that someone
bumps into you
o In neither case is there a loss of dignity

Dignitary torts
• Considered to be like assault, even though they were not hitting you (striking the French
ambassador’s cane)

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What do you tell a defendant in intentional infliction?
• Starts with a group of torts: trespassing, mistreating dead bodies, assault (not actually
hitting someone but making them think that you would), false imprisonment
o Tell someone not to swing at someone, if you hit them they can sue you if you miss
they can sue you too
o These are cases where it is clear why people will be upset

Damages in a case (like a guy with a “dead” hand on someone’s butt)

• Intrusion into protected area of privacy
• Emotional damages
• For intentional torts you can collect both compensatory and punitive damages (smart
money, as in you are smart enough to sue when nothing happened to you)
• If someone has a hand on them in the subway, can’t really say that you aren’t going to
ever ride the subway again, but there isn’t a lot to compensate for so you can get punitive
damages as well
• Can’t get punitive damages in negligence, need to show outrageous conduct, and
intentional tort is outrageous

Body on the Front Porch Hypo

F: Uncle dies and goes to the morgue, you don’t pay the bill. Then 6 months later grandpa dies
and they say they won’t bury him until both bills are paid. You don’t pay the bill and they put the
body on the porch swing because you haven’t paid for services.
Law says that the mistreatment of dead bodies creates the probability that relatives
will be emotionally distressed

False claim of naked in front of men Hypo:

F: Guy is selling leather goods (saddles, whips, etc.), woman starts to slam the door and he puts
his foot in the door and tells her he’ll tell everyone she stands in front of men naked.
H: Sue for trespass because now that there’s trespass she can sue for emotional harm.
If there’s another tort, then you can sue for emotional harm.

American Law Institute, Restatement (Second) of Torts (1966)

§46 Outrageous Conduct Causing Severe Emotional Distress
• (1) One who by extreme and outrageous conduct intentionally or recklessly causes severe
emotional distress to another is subject to liability for such emotional distress, and if
bodily harm to the other results form it, for such bodily harm.
• (2) Where such conduct is directed at a third person, the actor is subject to liability if he
intentionally or recklessly causes severe emotional distress
o (a) to a member of such person’s immediate family who is present at the time,
whether or not such distress results in bodily harm, or
o (b) to any other person who is present at the time, if such distress results in bodily
harm

• (2) is about someone that comes onto the farm and beats up the husband while the wife
is watching
• She sues because she’s so upset
o The court says “transferred” intent
 You intended to battle the guy, but you knew that she was there, so the
intent transfers to her

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  Intent to battery him transfers to an intent to assault her
 This means that you intend the natural and probable consequences of your
actions

Wilkison v. Downton
F: Case where the wife is told her husband is hurt and to come with pillows
• Can’t sue for emotional harm
o Must of intended to cause physical harm

Woman and Pixies Hypo (typical case of the intentional infliction)

F: Woman gets out of mental hospital obsessed with pixies. People bury a sealed pot and
convince her the pixies buried gold and help her find it and make her open it in front of the
town. She breaks down and spends the rest of her life in the mental hospital.
P: Extreme Emotional harm, intentional infliction
D: Didn’t intend to cause severe harm.
H: For a regular person that wasn’t in a mental hospital, then the act wouldn’t have been as
cruel. The fact that she was mentally ill is a factor in the outrageous conduct. No doubt that she
was distressed because she ended up back in the mental institute. Doesn’t matter that she was
mentally ill to begin with because you take your victims as you find them.
Outrageous behavior with the intent to cause emotional harm and you do cause
serious emotional harm is intentional infliction of emotional harm (needs to be
extremely outrageous and still be so even if no one was distressed about it).

Doctor Refuses Care Hypo:

F: Kid gets hit a car, they find a local doctor who lets them in, but the doctor doesn’t treat and
sends them home. They find a bus and eventually get to the hospital where they find out the kid
had a concussion, and the kid is okay a few days later.
The extreme emotional harm is the extra worrying on the way to the hospital.
This seems to be extreme emotional only because the kid had a concussion

Plane Crash Wrong List Hypo:

F: There’s plane crash and Mom calls the airline, saying her daughter was on the plane. The
airline says that she wasn’t on the passenger list. And turns out that she was on the plane, even
though she wasn’t on the list.
This is NEGLIGENT infliction of emotional harm, not intentional.

Debt collectors harass parents Hypo:

F: Debt collectors who harass the elderly couple to pay their son’s bill
H: This is extreme and outrageous, because it was excessive calling, the age of the couple and
they didn’t owe the money.

Grocery Store Basement False Imprisonment Hypo

F: P works for a small grocery store. He’s told to go into the basement to get some stuff up, he
goes down there and he’s accidentally locked in until Monday (store closed on Sunday).
P: False imprisonment, emotional distress
D: Says it wasn’t intentional, and that he wasn’t injured
Can’t sue for false imprisonment if it is accidental and no harm results. May be able to
sue for negligent infliction of emotional harm if P can prove harm.

Woman in the Back Room of the Store Hypo

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F: Woman (employee) was accused of stealing and they put her in a back room for hours. Later
that day they fired her.
P: False imprisonment and emotional distress
D: We were paying her and she wasn’t falsely imprisoned.
If you are paying someone to work, you can pay them to sit in a backroom or at a cash
register and the backroom isn’t false imprisonment.

If you don’t have the right to arrest someone and you detain them, its false imprisonment (i.e. a
store detaining an accused shoplifter).
• If the crime was committed then you have the right
• If you are wrong, then its false imprisonment
• Police officers get a privilege
o Probable cause
o They are allowed to falsely detain someone without having false imprisonment if
they reasonably believe that someone committed the crime
• Common law prohibits store owners from detaining people
• Massachusetts has a statute that gives a privilege to the store owner

Coblyn v. Kennedy’s Inc.:

F: Massachusetts case where the store owners detain a guy they think was stealing.
P: False imprisonment, I didn’t steal it and they found that out. And that they didn’t have
reasonable grounds because reasonable grounds means probable cause.
D: The statute requires that we have reasonable grounds and we had reasonable grounds and
that reasonable grounds means subjective belief (subjectively believed he stole).
H: Defendant loses because reasonable means that you have to have a high amount of
evidence.
Even if there is a statute that says that the store owners can detain accused
shoplifters people they still need to have a high amount of evidence because the
legislature didn’t intend to give greater authority to store owners and security guards
than the police.

Not false imprisonment if you can reasonably escape from the room or if there is no
cohesive force to keep you in the room. If you have the option to leave you can’t claim
false imprisonment, it also must be intentional.

False imprisonment
• Has to be intentional
• Must have cohesive force
• Can’t be able to leave the room

Assaults
• Future threat is not an assault, it has to be something that will happen now
• “I’ll beat you up on Friday” isn’t an assault
• Need to be put in imminent fear that it will happen

Damages

Damages – Rule of Law

Reduce to present worth / Time Value of Money / Discount Rate

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Theory of Found Money – Willing to give up money that you don’t have yet (but usually regret it
later)

Rule of 7’s and 10’s (money invested at 10% will double ever 7 years, and money invested at
7% will double every 10 years [compound interest])

Per Diem – Break up into units of time and figure out the worth of moments of time.

Don’t pay taxes on compensatory damages, do pay taxes on punitive damages.

Collateral Benefits Rule – Benefits that the P gets are not to be used to benefit the defendant
(for example if P gets hurt and pays $25 co-pay, he gets the full amount of the medical bills, and
double for worker’s comp, etc.). The policy behind this is that the D should not get the benefit of
P being cautious and getting insurance.
Subrogation clause – Lots of insurance companies have this now so that if you collect
you have to pay them back.

Mitigation of damages – don’t need to have surgery if it would be cheaper than the emotional
damages, because the Plaintiff isn’t required to take the risk of surgery to mitigate the damages.

Contingent Fee
• NY have capped attorney fees in certain kinds of cases
o i.e. gets a 1/3 of the first million then after that capped at 10%
o The incentive is to get the attorney’s to settle because the additional isn’t worth as
much to them
• Originally a question of ethics
o Maintenances – giving the client money to live
o Champerty – drum up litigation where there isn’t any
• Allows those who couldn’t afford a lawyer to get represented

• 1/3 seems like an awful lot of money because it doesn’t relate to the amount of work that
is done
o Get the 1/3 whether you make 5 phone calls or if you got through trial and appeals
o This is tolerated because the attorney has to get more money than the billable
hourly rate because some of them aren’t going to win
• How come 1/3?
o Usually its after that the client’s gripe about the fee
o Attorney is taking all the risk
• Theory of “Found Money”
o Money you didn’t earn isn’t as real, and therefore you didn’t earn it, it doesn’t count
in the same way
o Since it sort of doesn’t count or exist, you are willing to give up a lot because you
don’t have it
 Regretful afterwards, because we don’t have anything now and don’t expect
to get anything in the future
• Idea was to compensate the plaintiff for the loss
o The client is left 1/3 short of what they need

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Pain and suffering
• Compensable but difficult to monetize it
• There’s both past and future pain and suffering
o Difficult to monetize it
o At the time of trial there’s both past and future pain and suffering
 Sometimes they are the same (as in when you lose an arm), permanent
detriment

Getting hit by a car and having a compound fracture of the leg which heals in about 6 weeks,
but it leaves a scar. If there’s no medical expenses and no loss of income the case is worth
about $50k in Pennsylvania, about $75k in Nassau county and $110k in Manhattan

Don’t pay taxes on the compensation, so $110k would be worth about $150k because you don’t
lose taxes

Greater the advances in medical science, the more horrifying it is to look at someone with
permanent inflictions

Per diem Argument

• Rejected by most jurisdictions
o Leads to huge verdicts
• Guy has his arm off
• If he could gain employment for losing your arm, look to see how much this would be
worth an hour
o Look at 18 hours day x 7 days a week x 12 months x 42 years ($1/hour or nickel
per minute)
o How much would someone pay you for this
• This rationally relates to how to quantify pain
• Lousy conditioned jobs get paid more (garbage men get more than secretaries)
• Don’t know how to monetize past or future pain, so the plaintiff doesn’t really “need” that
money, so think of that money as going to the attorney, and will still have enough to give
the plaintiff what he/she actually needs
• McDougald v. Garber-cognitive awareness is a prerequisite to recovery for loss of
enjoyment of life b/c an award of money damages has no meaning or utility to the injured
person and cannot provide such a victim with any consolation or ease any burden resting
on him. Furthermore, loss of enjoyment of life and pain and suffering should not be
considered separate categories b/c in general the amount for non-pecuniary damages
would increase if we adopted the rule and application of this murky process to two
separate legal fictitious categories would not make it more accurate, but would if anything
amplify the awards by repetition.

Tangible and intangible Injury

• Tangible (provable) damages
o Loss of income (past and future)
 Past lost income is very clear
 Future expenses are not so clear
o Medical expenses (past and future)
 Past expenses is very clear
 Future expenses not so clear
• Future expenses in Medical Expenses tend to be proven by expert witnesses

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 o Experts can say that some of the injuries can be increase the chance of cancer, so
this injury is pre-cancerous, this is very speculative
o Or for a trick knee that dislocates sometimes they could say it will just get worse
and the guy will probably need surgery by the time he’s 50
• Future expenses in Loss of Income
o Tend to be proven by expert witnesses
o Have to speculate on whether the person will continue to get promoted and get
more money, its speculative but its not like Grimstad because its expert speculation
• Time value of money, money you get now is worth more than it was in the future
o Because of inflation and because you can invest it
o Need to calculate how much you make every year on the money
 Take the $40 mil and reduce it on the discount or the interest rate
 Give the amount of money now that will lead to $40 million in the future
• Rule of 10s and 7s
o Money invested at a rate of 10% compounded interest
 Doubles every 7 years
o Money invested at a rate of 7% compound interest
 Doubles every 10 years
• Discount Rate
o The lower the discount rate the more money the plaintiff has to pay the plaintiff
o The higher the rate the faster you assume the amount will double
o Lower rate, the longer it will take to double, so you have to give more
• NY State has a statutory rate
o The actual rate that exists at the time is not a reliable rate to use because it
changes over time
• Annuity
o Don’t do annuity, because we want to dispose of cases
• Attorney’s (except in Texas and a few other states) cannot pay you while you
live in pretrial stage
o People have started to loan money against the judgment
 This doesn’t have the low interest rates of other loans
 This is an investment in the judgment
 Create investment pools, have a prospectus, etc. and only invest in the cases
that the attorneys tell them that they will win
Mitigation of damages
• Also, if you have a scar on the leg you could have the cosmetic surgery
o But the patient won’t have the surgery because then only get paid for the surgery
• Don’t have to mitigate if it is life threatening
• And it is life threatening if it requires anesthesia
• McGinley v. US-D admitted liability to a stevedore for an accident, but claimed that P
failed to mitigate his damages by not having surgery and not training for a new job. This
court held that an injured party must make a reasonable effort to mitigate his
damages and the test of reasonableness is a question of fact. In this case P has
continuously submitted to reasonable medical treatment and has already undergone 2
operations; it is not necessarily recommended for P to undergo further treatment.
Additionally, the court which D would have P follow to obtain employment oversteps the
bounds of reasonableness. P has no duty to obtain employment as a checker.

Intangible

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 • Pain and suffering
• Loss of earning capacity

Taxability
• The jury isn’t told that the plaintiff won’t pay taxes on the money because they would
deduct it themselves and don’t want to punish innocent D
• The lawyer pays taxes
• And if there is any punitive damages, you pay on the punitive damages
o But not what you get on the negligence
Collateral Benefits Rule
• Benefits that the P gets are not to be used to benefit the defendant
o For example when P is hurt it costs $25
o He gets full amount of the medical bills
o His employer paid him and that is a collateral benefit, so P gets double paid (gets
the employer pay and pay from D)
• Policy
o You get the Medical benefits because you took out the insurance and paid for it
o Why should defendant pay less if he hits someone that isn’t prepared and doesn’t
have insurance
o Medical insurance now has provisions where you have to pay money to them if you
collect for the injury
 Subrogation clause
Damages
• Reducing to present worth
o Add it all up, then reduce with the discount rate
o Income goes up and up, predictive and inflationary increases
• Pennsylvania
o Have said why don’t we simplify, take the salary now and multiply it all out and
then don’t reduce (take today’s salary, multiply it by the number of years)
o Not exactly true, if the inflation is lower, it will come out to less
o Has decided that the speculative of the increase is always problematic
o If the increase is close to the discount it will all balance out equally
o Vast majority don’t do this
o Increases go up every year for inflation
o When we reduce it, we are reducing based on the interest rates
o Interest rates should be close to inflation so it should all balance out
o Come to a similar result

Punitive Damages
• Argued a few weeks ago (Phillip Morris smoking), First case the supreme court has
handled when there is punitive damages in personal injury
• Not sure that the court will take the ratio 9 to 1 or anything like it in this kind of case
• Jury was told to limit the damages to the jurisdiction
• Ratio is enormous something like $76 million to $800k
• Everything in civil procedure applies here
• Punitive damages go to attorneys and not the state because it gives attorneys reasons to
go after these cases
o Some states have rules dividing the punitive between the state and the plaintiff
• Punitive Damages are taxable (they get 35% of this)

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Strict Liability

Strict Liability – Rules of Law

To prove Strict Liability: Artificial condition (impoundment), Would cause great danger if it
escaped, And it does escape and causes injuryVictims can’t defend against it

Trespass is a strict liability offense (not absolute liability because there are defenses to the act, if
you are dropped from a plane, it’s not a trespass).

The damage needs to be foreseeable (i.e. a toxic leak might not be foreseeable, back in the day)

Strict liability means that there’s no negligent action

• Not absolutely liable because there are some defenses
o Intervening cause
o Inappropriate conduct by victim
o Proximate cause
o Act of God
• Cancels the element of violating the standard of care
• Injury caused by bringing an artificial substance on the property and then it could escape
and it did escape and injured someone
• Have to prove:
o Artificial condition
o Would cause great danger if it escaped
o And it does escape and causes injury
o [Need to prove this to win]

Trespass
• Trespass is a strict liability offense, there is no mental state attached
• If you go on someone else’s property, you are a trespasser, even if you think its your own
property, or have a reasonable basis to think its your property
o If you cause any damage you are liable
Trespass is a strict liability defense
• Its not absolute liability, there are defenses
• There are no mens rea defenses
• There are actus reus defenses
o If someone drops you from an airplane, you are not trespassing
• Jurisdictional facts
o If you are charged with assaulting a federal officer, you can’t say that you didn’t
know that they were a federal officer
o If you rob a federally insured bank, can’t say that you thought it was a regular bank

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 • Strict liability element of trespass is that you are on someone else’s property

Rylands v. Fletcher
F: Damn breaks and it floods the subsoil that the reservoir was built on damages the defendant’s
property
P: says that they’re liable. And that they don’t have to show negligence that the water shouldn’t
have escaped the property
D: says no we aren’t liable we are not negligent
H: This is an artificial condition of the property that has a lot of danger. The Plaintiff knows that
the water will cause a huge amount of damage if it escapes and that the people on other
property cannot do anything to protect themselves.
Strict liability applies if there is (1) something on your property, (2) you know it is
dangerous if it escapes and (3) you know that others are dependant on you to take the
appropriate care.

Strict Liability
• Know something on your property
• Know its dangerous if it escapes
• Know people down hill are dependant on you
• [Doesn’t apply to animals on the property that escape]

Why is Strict Liablity acceptable?

• Its an acceptable exception to the norm because the person knows that he has a greater
responsibility because others are relying on him and the danger is great.
• Also the greater foreseeability justifies a higher standard when combined with the high
danger if it escapes

• Important that the court combined a group of factors, very similar to other settings, all of
them compute to knowledge to the defendant, with helplessness on plaintiff
o Notice to the defendant combined with helplessness to the plaintiff, leads to a
change in law, the change is in the actual substantive elements in the tort
o Change the tort to have not a component of negligence, it is strict liability
o (Increase responsibility to the defendant)
 This is like Summers v. Tice with the burden shift, but this is a change to
strict liability

According to restatement if it is common then it’s not ultra-dangerous

Strict liability – Means that you can’t defend on saying that you tried hard, you can only
defend against a element of a cause of action

Rickards v. Lothian
F: Toilet leaking downs the wall and damaging tapestry in the apartment below
H: Court finds that Rylands doesn’t apply because its not special and everyone uses it
When something is a normal artificial impoundment strict liability doesn’t apply

Toxic Leak Hypo:

F: Toxic substances escape. Cause injury because it gets into the ground and affects water a
mile away

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H: Can’t apply strict liability because the defendant didn’t know it could cause damage

Extra Miles Hypo:

F: Class action, some guy found that his car consistently overstated mileage by 2-4% . Plaintiff
said that this could cause someone to void a warranty or go over the lease milage
H: Court held that this wasn’t strict liability but the lawyer got to get attorney fees.

Fish Tank Hypo:

F: Have tropical fish, in a tank (10 gallon) on the 4th floor, D goes on vacation at the same time
that the people in the apartment below them. There’s a defect in the bubbler and the tank and it
leaks and through the wall and damages the apartment below them.
P: Can’t sue for negligence so sues for strict liability because its an artifical condition on the
property
D: Says that she’ll win because this isn’t like a damn. It’s a normal fish tank and it isn’t ultra
dangerous. See Rickards v. Lothian, [1913] A.C. 263 [toilet bowl case]
H: this could go either way, there are arguments for both sides. Have to determine how low is
low, the fish tank is between the toilet bowl and the damn with tons of water.

Ultra Hazardous Activities

Ultra-Hazardous Activity – Rule of Laws

3 Types Ultra Hazardous / Abnormally Dangerous

Activity
i.e. blasting a foundation
Instrumentality
i.e. dynamite is and a car is not
Condition of use
i.e. racing a car

The Restatement §522

Says that the person is responsible for the negligence or reckless activity of third parties that are
completely unexpected

Also Restatement §523

Says that the plaintiff’s assumption of risk from an abnormally dangerous activity bars his
recovery for the harm (if he more than recklessly created the harm)

Damage will need to be foreseeable (i.e. if a plane buzzes a field is it really foreseeable that a
stallion will freak out and trample the fowls, can be argued both ways)

Defenses to strict liability: 1. Manner that it escapes (foreseeablity) 2. Acts of God

When you do something of substantial social value and everyone does it, its difficult to say that
people are on notice of the danger
• Notice relates to commonality of use
• And the social utility of the use combined with the commonality
• Difficult to say that a normal activity is ultra-hazardous versus just being dangerous or
hazardous

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Ultra-Hazardous activities:
• Much broader (starts about 1950)
• Not every jurisdiction follows it
• Modernizes Fletcher v. Ryland

• The Restatement (Second) of Torts, at 520 (must weigh these factors in

determining if activity is ultra-hazardous):
•
o Great probability of harm
o Potentially serious level of harm
o The activity is not a matter of common usage
o Harm cannot be prevented by utmost care
o The activity is inappropriate for the location
o The social value of the activity is not sufficient to offset the risks
o Restatement (Second) of Torts
o Abnormally dangerous activity, which causes harm to the person, land or chattels of
another, despite exercising the utmost care to prevent the harm

• Limitations

o Limited to the use of your property

o You are liable if the condition on your property is unnatural and it escapes
o Must be abnormally dangerous (dynamite, auto racing) as opposed to common usage
o Limited to the kind of harm
o Does not make a person liable for a stick of dynamite that falls and breaks someone's toe;
it must be the type of injury that would result from the dangerous activity
o D will not be liable for his abnormally dangerous activities if the harm would not have
occurred except for the fact that P conducts an "abnormally sensitive" activity
o Usually contributory negligence will not bar P from strict liability recovery
o Restatement developed the SL tort of Ultra-hazardous activities:
o D's conduct is so dangerous that it puts the D on notice that others can be injured if
something goes wrong
o If it is so dangerous that others can be injured, D should have a greater duty
• HYPO-I have a garden and I spray a ton of pesticide on it. This kid Charlie is constantly
running all over my flowers even though there is a fence around the garden; I tell Charlie
to leave. One day the kid runs in the garden and inhales the cloud of pesticide over the
garden and dies after a lot of pain and suffering. The fact that Charlie trespassed doesn't
matter b/c Kessler has a duty to trespassers. Under ultra-hazardous you have a duty
to protect others from their own negligence or reckless injury. We don't have to
prove reasonable care on the part of Kessler b/c it's ultra-hazardous.

Three requirements to prove: (to get to jury)

1. Event does not ordinarily occur without negligence

2. other responsible causes, including the conduct of the plaintiff and third person are
sufficiently eliminated - injury could not have occurred without negligence of D

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3. Thing that caused the injury was in the exclusive control of the defendant (Indicated
negligence was within the scope of the defendant’s duty)
• Exclusive custody and control of item

By proving A (specifics of what happened ) you are proving B (proving that D must have done
something that caused injury and what he did must have been negligent)

This doctrine helps P get to jury

• Change of prior rule of law enabling Ps to get to jury
• You can find him liable without figuring out what he did.
• "Difference from degree can be the difference in kind"

Mr. Wilson HYPO: Mr. Wilson lives next door to a little boy named Dennis. Mr. Wilson is really
into gardening and has a patch of tomatoes, and a very large area of flowers. Real danger with
tomatoes and flowers - there are a lot of bugs - he buys pesticide and "sprays the shit out of it
all the time" - active ingredient is "chemical". One day he goes outside and Dennis is there
cutting Mr. Wilson's flowers for his mother for Mother's Day. They are extremely hard to grow
and Mr. Wilson was going to use them in two weeks for a competition. Mr. Wilson yells at Dennis
and he runs off. Mr. Wilson goes inside to cool off and goes back outside to spray. He starts
spraying and doesn’t know that Dennis is in the flowers - Dennis suffers lung damage.

What cause of action can his family bring? Strict liability - created high risk because
of an ultra hazardous activity. Negligence.

Legal Defense:

D can claim Dennis was trespassing.

Duty the landowner has to the trespasser regard to knowledge the trespass will be there.

Mitigates whether the D will know P will be there.

Evaluate the merits of the cause of action

Who has the better case? Mr. Wilson - he wasn’t negligent with the use of pesticides. He used
the pesticides in a reasonable manner. He had no reason to believe that anything else but his
plants were there - he was reasonable by only spraying it on his plants - and had chased off
Dennis who had just left and had no reasonable belief to believe he had come back.

Dennis' case: Mr. Wilson did not exercise adequate care. Mr. Wilson was negligent and he owed
a duty to Dennis because Having seen Dennis there already once a reasonable person would
make sure he was not there again. Mr. Wilson failed to take reasonable care in taking care to
make sure and check to make sure that Dennis had not come back and therefore was not in the
garden.

Restatement (Second) of Torts:

Abnormally dangerous activity, which causes harm to the person, land or chattels of another,
despite exercising the utmost care to prevent the harm

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Hazardous care tort - working for Mr. Wilson - 2 problems:
1. Is it common usage or not?
2. Does the value offset the risks? Not dangerous enough and

Dennis' argument - pesticide is ultra hazardous.

HYPO: Highway case: (Siegler v. Kuhlman)-a woman is driving on the a multi-tiered

highway in CA; on the higher road, D loses control of his gasoline truck, it hits the railing and
goes over to the lower level and explodes; the flames engulf and kill the woman on the lower
level.

P argues that this was an ultra hazardous activity and reasonable care on the part of the D was
not enough.

The D will argue reasonable care and common usage-we need gas and everyone has cars with
gas in them.

The court held that the degree of gasoline in the truck is greater than that of any car on
the highway and therefore is not common usage. The trucking company has a non-
delegable duty (can't pass off responsibility) and would lose under res ipsa as well.

HYPO Licensed Exterminator: So strong- used to spray half of a building - someone who was
asleep on other side of building and it went through wall and injured person asleep.

D: It is an pesticide - commonly used - therefore not ultra hazardous activity

P: Ultra Hazardous activity!

Luthenger v. Moore:
F: Luthenger is sleeping in her store and there’s an apartment behind her. The building behind
her has a bug problem so they hire an exterminator. He uses an insecticide that can only be
used by licensed exterminators. The exterminator didn’t know that it could get through the
walls, thought it could only get through big holes and he checked for those. The insecticide
makes the P sick and have permanent lung damage, she sues.
P: Can’t say negligence so says that its an ultra hazardous activity and strict liability applies.
Says that its not commonly used and its dangerous
D: Can’t say didn’t know that it would escape because that’s a defense to negligence. Says that
this is how everyone exterminates
H: This is not sufficiently prevalent to be common, its not common enough.
To be common, and thus not ultra hazardous, it must be very prevalent.

Hypo:
F: Woman is on a multi-layer highway, a tanker transporting gas gets in an accident and blows
up in front of her.
P: Negligence is that the coupler came apart. Negligence on res ipsa non-delegable duty (1. can
either prove some defendants out or non-delegable duty). Strict liability is that it was a
dangerous activity because it was such a large amount of gas.
D: Not negligence. And that it was common to transport gas, every car did it. Also that everyone
transports gas this way, it’s the common way to transport gas.

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H: The gas in the car is too different. Also though this is the common way to transport gas, its
not a common activity.
Difference in degree is a difference in kind and a common way of doing something
doesn’t make it common if it is still not a common activity.

The Restatement §522

• Says that the person is responsible for the negligence or reckless activity of third parties
that are completely unexpected]
• [but in this they are more than negligent, they are doing it intentionally, purpose]
Also Restatement §523 (page 607)
• Says that the plaintiff’s assumption of risk from an abnormally dangerous activity bars his
recovery for the harm
• [in this case the gang of people knew that it was harmful and were assuming the risk of it
blowing up]
• But if it wasn’t the gang that was harmed, but innocent people that were hurt he could be
liable

Airplane Buzzing a Field Hypo:

F: If you buzz an airplane (and at this time its not common) and planes are an ultra-hazardous
activity
Airplanes are only strict liability to those on the ground, not strict liability to those
that are in the plane.(if cow stops giving milk you can sue)

Airplane Buzzing a Field Hypo 2

F: Same airplane, buzzes the field but this time the plane scares the stallion and he tramples the
fowls and causes damage.
H: Could go either way, you could say that it was proximate cause or you could say that its not
foreseeable that the horses would go crazy and trample.

Products Liability

Products Liability – Rule of Law

Must be a product, cannot be a service.

SOL runs from the time you discovered the problem or should have discovered it, not from when you buy it.

Can sue manufacturer and the retailer.

Manufacturing Defect – Rule of Law

This particular product is different from the others, the standard is set by the other products, this particular unit
has a flaw

There is strict liability, doesn’t matter how well you tested it. Reasonable care doesn’t matter.

Do not need to prove the actual defect.

Design Defect

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Focuses on the product, not the person:

Doesn’t matter how good the design is, Matters how it was designed
Looks at whether the product was defectively designed (negligence)

Common / Deluxe Model – you can have both so long as the common model is safe enough for its purpose.

Warning – Rule of Law

Need a clear warning and the warning need to be understandable

Warning Issues
Communication Issue
Understandability of the warning
Theory of Mass numbers (Unusual things happen when there is large number)

Warning needs to be sufficient for the life of the product, it would be inadequate if you had a short term
warning (i.e. tag) on a long term product (ladder).

Having too many warnings so that the warning label, makes it unreadable (ineffective communication).

Warnings can be communicated through a warning intermediary, provided that the warning is adequate.

Massachusetts – no warning is ever adequate enough if the product will be used by kids.

Warnings are not assumed to be read, but even if you don’t read the warning you can still sue if it is inadequate.

Instructions are assumed to be read.

Res Ipsa in Products – Rule of Law

Must be defective when it left the manufacturer

Nothing could have happened to it after it left the manufacturer.

Definition of a defect

Defect unreasonably dangerous (2 restatement)

nd

Negligently or dangerous designed product (3 restatement)

rd

Patent defect – another way of saying assumption of the risk (its an obvious defect)
Comparative Causation – Comparative Negligence
Risk Utility – Same as saying Hand Formula (Cost / Benefit Analysis)

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State of the Art – Rule of Law

Subsequent repair rule (applies in negligence cases) – evidence of repairs after the accident are not admissible
to make them strictly liable, they can only be used to show the feasibility / viability of alternative designs

Foreseeable Unintended Use – may not be the intended use but it foreseeable that the product could be used
this

Misuse – Opposite of foreseeable unintended use, this is when you purposely misuse the product and it wasn’t
foreseeable that it would be used this way

California decided that this should be a split burden (2 prong test in Cali)
1. Plaintiff has to prove the defect
2. Up to the defendant to prove that it wasn’t unreasonably dangerous after a risk-utility benefit
(Defendant justifies the design)

Naturally occurring items are not defects (i.e. peanut shell in peanut butter) but foreign objects are (i.e. glass in
the peanut butter)

Common and deluxe model – Rule of Law

If only sell the deluxe model then people who could afford only the common model wouldn’t buy anything
because they wouldn’t be able to afford the deluxe

Its possible to have a cheaper product that is less safe, so long as its sufficiently safe in and of itself, because if
its at a maximum safety it would be unaffordable.

Unavoidable Dangerous Product – Rule of Law

Dangerous and you can’t avoid it and it shouldn’t be a defect

Two typical examples

Pharmaceuticals
-All drugs have side effects
Gun / Knife
-All knives and guns can kill people

Essential nature of the product that gives you the benefit also creates the risk. If you do a cost benefit analysis
you can’t get the benefit without the cost and it makes it unavoidable

Generally can’t sue pharmacists in strict liability, only negligence.

How a Plaintiff can overcome worker’s compensation – Rule of Law

1. Sue manufacturer and let him interplead the employer and say that it was negligent management of the
workplace that caused the injury. Manufacturer would say that it wasn’t a defective product. [P claims
foreseeable unintended use]
2. Plaintiff just needs the manufacturer to be 1% liable and then they can chose to collect everything from the
Manufacturer

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3. Then the manufacturer will sue the employer for their contribution (comparative difference). [Joint and
several liability and comparative and joint tort feasors means that you can get money from both]

Three Kinds of Product Defects

Manufacturing (Production)
• This particular product is different from the others, the standard is set by the other
products, this particular unit has a flaw
• There is strict liability, doesn’t matter how well you tested it. Reasonable care doesn’t
matter.
Design
• Focuses on the product, not the person
o Doesn’t matter how good the design is
o Matters how it was designed
• Looks at whether the product was defectively designed
o This is like negligence
Warning
• Need clear communication and warning needs to be understandable.

Res Ipsa in Products

1. Must be defective when it left the manufacturer
2. Nothing could have happened to it after it left the manufacturer.

Products Liability
• Initially could only sue in negligence
• As time when on more and more was concealed and thus more reliance on the defendant
and the products became more inherently dangerous
• Took a long time to move to strict product liability because of the idea of autonomy and
individual freedom and liberty.
• Product liability now runs to everyone that is injured by the product
• We have strict liability in products
• Manufacture is liable no matter how careful he was

If it’s a service you can’t sue in strict liability, but you can sue in negligence

Statute of Limitations
• In Torts - Runs from the time you discover the problem or should have discovered it
(not when you buy it)
o This is what we use for strict liability
• In Contract - Certain amount of time from the time of purchase
• Property - No SOL

Statute of Repose
• Limits the amount of time you can bring a product liability action, in some jurisdictions

Defect
• Not a defect unless its unreasonably dangerous
o Can’t just have a difference, be different
• Known as “defect unreasonably dangerous”
o Can’t sue for cutting yourself on a sharp knife

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 • Can’t have knives if you don’t have knives that are sharp
• Can’t sue just because the knife is sharp even though its dangerous, would
be ridiculous
• Can’t sue a car manufacturer of a car just because it went fast, and going
fast is dangerous, again this would be ridiculous
• Need to be excessively and unreasonably dangerous
• Patent Defect – Assumption of risk (knew it was defective and used it anyways)
o Classic case of taking a chain saw and using it to cut their toe nails
o This person shouldn’t collect for two reasons:
o 1. nothing wrong with the product
o 2. contrib.
• Comparative negligence – comparative causation
• Up until the third restatement negligence wasn’t in there, but everyone knew that it really
was there

Products liability developed over time because initially individual crafts men made products for a
specific consumer and liability was easy. Person who made it was responsible to the person who
the craftsman sold it to. A third party couldn’t sue. Over time this changed as the store owners
didn’t have as much money as the manufacturers and mass production meant that the person
who purchased the product might not be the one that used it.

Bridge Hypo:
F: Person wants a bridge to go over the stream. The bridge maker says the wood needs to be
coated so it won’t rot. The owner opts not to have the coating. Ten years later the wood rots out
and someone gets hurt.
H: Since the part that rotted is under ground. The person was a licensee so there was no duty to
inspect and thus no duty on the land owner. Defense is no privity, built what client wanted.
No privity used to be a defense, it meant if you were not part of the original contract
you could not sue, can’t go around contractual relationship and sue in tort.

Winterbottom v. Wright, 152 Eng. Rep. 402

F: Front left wheel breaks off. Causes loss of control injuring the plaintiff. Carriage is used by the
king’s post office.
P: Products liability, defective product.
D: No privity, the injured driver wasn’t privy to the original contract.
No privity, cannot sue in torts when you wouldn’t have a contractual duty. Can sue in
negligence, but not strict liability.

Thomas v. Winchester
F: 1830s guy goes down to the equivalent of a pharmacy and buys some ground up plant herb
for his wife that’s sick, but unfortunately the bottle is mislabeled, its not the herb that he wanted
it’s a poison. Wife gets extremely ill.
H: Court uses an exception to privity rule saying that if the thing that you sell is imminently
dangerous to human life if negligently fabricated then the injured person should be able to sue.
If you know that the thing you sell is imminently dangerous then it gives you special
responsibilities because its specially made and the person can’t find out that its
negligently made until its too late (imminently dangerous to human life.

MacPherson v. Buick Motor Co.

F: Front left wheel of the car falls off. Driver is the wife of the purchaser.

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P: Its imminently dangerous to human life
D: No privity of contract, then says that its not imminently dangerous and its similar to
Winterbottom because it’s a wheel.

Products liability
• Negligence of tort
• Discusses how courts can modify the law without admitting that they changed it
• Thomas and MacPherson were both changes
• Cardozo says that he was bound by precedent and that he doesn’t change anything
• Cardozo is arguing on the law
o Poison is mislabeled is imminently dangerous
o Car isn’t as dangerous
• Cardozo alters the articulation from imminently to inherently dangerous
• This is a very big difference, imminently dangerous is mislabeled poison, or a locked rifle
with a blocked barrel, or a power grinder that would fly apart
o Nothing that you can do to protect yourself
• But the car is not necessarily dangerous, if you use it in the normal way its not dangerous
o Scaffold isn’t dangerous if you are 10 feet up, but is dangerous if its 90 feet up
o Says that we always meant inherently dangerous

Losee v. Clute (51 N.Y. 494 (1873))

Seller knew that they weren’t being relied on, they were not the final inspection

Buying a Used Grinder Hypo

F: Person buys a grinder, buys it as is inspecting it first. Then it causes injury.
The person who sold it, knew that the buyer was making an independent inspection,
wasn’t relying on the purchaser, thus he’s not liable.

MacPherson:
• Still can’t sue in strict liability, Allows suit in a negligence case
• Manufacturer only gave an express warranty to the person that they immediately bought
from
• Fact that you can sue for the inherently dangerous items, doesn’t mean that you can sue
in contract

Coke Bottle Hypo:

F: Coke bottle explodes.
P: Negligence.
D: We weren’t negligent, exercised reasonable care in inspection
A lot of these suits were won by defendants, even though the bottle exploded, they
were doing large inspections and they took excessive care
• Burden of doing more was in excess of PxL

Escola v. Coca Cola Bottling Co. of Fresno (1944)

F: Coke Bottle explodes in the plaintiff’s hand causing severe injury.
H: Traynor wrote a concurring opinion, saying that we should have strict liability in
products because you can’t look inside the bottle and see what’s there
• No implied warranty of fitness
Concurrence in Escola v. Coca Cola Bottling Co. of Fresno, says that it was time for strict liability
in products, but no one listened until Henningsen in 1960

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Henningsen v. Bloomfield Motors, Inc., 161 A.2d 69 (N.J. 1960)
• 1960 – first time that they held that you could sue in strict liability
• Within 13 years ever state had allowed strict liability in product
• Ever state changed their law

Chysky v. Drake Brothers Co., 139 N.E. 576 (N.Y. 1923)

F: Nail in a Drake cake and P bites in and gets inured.
D: Owner of the diner, says they didn’t make the cake
H: Still can’t sue even though pre-prepared food has a lot of danger
• Hard to look at industry and think that the manufactures need to be subsidized when
there are 13 different kids of coffee
o This is the importance of the 100% increase in the GNP
o There isn’t a problem with production
o If one company goes out of business because they have to pay for someone’s
injuries, someone else will pick up the market

Greenman v. Yuba Power Products, Inc. 377 P.2d 897 (Cal. 1963)
• Part flies off and hits the guy in the eye
• If Yuba goes out of business, its not like we won’t get this product from another company

• Unbelievable developments from 1910s to the 1960s

o Transatlantic air travel
o Radios to color TV

Henningsen v. Bloomfield Motors, Inc., 161 A.2d 69 (N.J. 1960)

Talked about product as if it was an easement that “ran with the property”, a warranty of fitness
of use, as if it was a property right

• Need to guarantee fit for use

• This is a safety protection
• If the car is supposed to go 65 and only goes 55, you can’t sue
• But if the car blows up or wheel falls off and you get injured you can sue
• This is strict liability, can’t say any longer that you tried as hard as you can
• Changed the technology and the economy and the social structure, and then legal rules
that made perfect sense in the time, but as things change the legal rules have to change
with it

Broken Statute Hypo:

F: Person works for the P, the P owns a small statute worth about $1 and the person is taking it
from one property to another. There’s a roofer on the rook tarring the surface so it won’t leak.
He puts the tar bucket on the edge (which has an angled bottom) and it falls off.
P: Sues saying the tar company saying that the bucket has a defect. Can’t sue in negligence
because there is no negligent action.
D: Economic Loss Doctrine because there was no personal injury
H: This is distinguishable though, because the thing that was broken wasn’t the thing with the
defect. This is the kind of thing that contracts is supposed to deal with. Even though there was
no personal injury, the bucket could have fallen on the person, not just the property.
If a person could be injured, though only property is injured, strict products liability
applies.

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Vandermark v. Ford Motor Co. (Cal. 1964)
If its only property that is damaged, then there’s no strict liability

Steak Knife While Out to Eat Hypo:

F: Out to dinner, knife breaks in hands and causes never damage
P: Non-delegable duty and res ipsa – this would be to the restaurant. Says strict liability. Cites
to Shaffer v. Victoria Station, Inc. (Wash. 1978) where the glass breaks and the court said that
it was strict liability and not a service.
D: Says that it was providing a service, not a product.
H: Hard to prove res ipsa, so would go with non-delegable duty, which would be hard to go
through
If it’s a service you can’t sue in strict liability, but you can sue in negligence

NJ – generally very pro-plaintiff in personal injury cases

Blood Transfusion Hypo:

F: Person gets HIV from a blood transfusion
Blood transfusion is a service, not a sale

Cafazzo v. Central Medical Health Services, Inc.

F: P sues after having an implant put in her jaw that malfunctions
Cannot hold a hospital/physician strictly liable for a malfunctioned (design defect)
part, because they provide the service of putting installing it.

Pay attention to the little stuff about reconditioning and reselling used goods and
when you
are and are not liable.

Successor Companies are liable for products by the old manufacturer if they are just
continuing the business under a new name. If the new company just acquired the
assets then they are not liable. [If the company is out of business you can still sue if
the new company acquired it in such a way that they are now a successor]

Can still sue the seller under implied warranty of fitness (even though they can’t do
anything about the design of the product)

350 lb weight limit Ladder Hypo:

F: Have a ladder that is manufactured by K construction company, Normal ladder, the kind that
folds up and then opens into a V. P is climbing on the ladder, gets about a 1/3 from the top, the
rung breaks, he falls and has serious physical injury. There is no fact that the person who owned
the ladder has done anything to the ladder. There was no windstorm etc. that caused him to fall
off the ladder. The rung broke because there was a hairline fracture in the aluminum.
P: Strict liability, the ladder had a defect. Stress facture that didn’t bear the weight.
Can sue in product liability under defect if the product has a hidden design defect that
causes injury.

New Ladder Hypo:

F: This time ladder just breaks, no idea why it broke

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P: Makes a res ipsa argument, but if you can establish that there must have been a defect, you
can use res ipsa. Shouldn’t have broken, and if you can’t figure out how it broke then it must
have broken

Myrlak v. Port Authority of NY 723 A.2d 45 (N.J 1999)

F: In this case it was the mechanism that broke. And also it was used 24 hours a day. This is
difference than this case because it isn’t the thing that it was opened and closed, it was a rung
H: Can use res ipsa. Must be defective at the time it left the manufacturer,Nothing could have
happened after it left. If you have these two then you have res ipsa.

Manufacturing Defects
• Have integrity because it is reasonable that manufacturers make all their products the
same to the same standard

350 lb. Ladder Hypo 2:

F: P is on the ladder and this time weighs 300 lbs. and is carrying him and 90 lbs. of shingles.
The ladder breaks because its not made to handle this kind of weight.
P: Can argue that the warnings were inadequate and that the design is flawed. Person might not
know how heavy they are an extremely heavy person won’t notice 50 extra lbs. and may not
know how heavy the package is.
H: A ladder that is supposed to hold 350 that breaks at 390 is defective, because it’s a
foreseeable unintended use. Its foreseeable that people won’t weigh everything that goes up the
ladder.
If something is designed to be safe at a particular weight, it must be safe over that
weight, even with a warning because it’s a foreseeable misuse.

Stove Door Hypo:

F: Short person in a nice apartment with high ceilings and has a old stove that is a unit and
above it there are cabinets above it that you can’t reach. Flip open the oven door, stand on it
and reach the cabinet. As a result, the whole stove tips forward, landing on her.
P: Design defect, could have been bolted to the floor, could have been counter weighted, or
could have had a door that breaks off at a certain weight. Foreseeable misuse (foreseeable
unexpected / unintended use)
D: Manufacturer says that they didn’t anticipate this
H: This is a foreseeable misuse (not negligent), the P wasn’t contrib.This is considered to be a
foreseeable unintended use of the product and therefore the defendant was liable
Manufacturers are liable for foreseeable unintended uses of their products.

Perfume and Candles Hypo:

F: A woman sprays unscented candles with perfume and it flames up causing facial burden
P: Foreseeable unintended use, candle could have been on my vanity.
D: Misuse.
H: This is chicken hawks: Could have a candle on a vanity table. Could have candles and
perfume close together. By accident you could have the perfume come into contact with the
candle.
Something that could happen accidentally can be a foreseeable misuse.

Second Collision
• This is the collision that happens with the inside of the car after the accident
• Everything inside the car is much sleeker and softer than it used to be

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Car accident hit on the side Hypo:
F: P is driving a car and gets hit by on the side, gets severely injured
P: Sues the manufacturer saying that the company had to make the car safe for side impact
crashes, sides weren’t reinforced.
D: Has to make it reasonably safe for crashes. Have design limitations. Went with a crumple
zone because its safest for front collisions which are the most common. Defendant says directed
verdict because if we made the car the way that is being proposed then it would be more
dangerous than if designed the other way.
H: D loses the directed verdict and it goes to the jury who awards for the plaintiff.
Can still get to the jury even if the Defendant shows that the risk utility analysis
weighs in their favor. [Somewhat irrational, just means higher insurance rates]

General Motors Corp., 406 S.E.2d 781 (W. Va. 1991)

Said that this is stupid, W Virginia isn’t going to change the law because they are a small state

NJ Court says
• Manufacturer puts these in the stream of commerce for making money and it makes
sense that they should bear the costs because they have the ability to reduce the risks or
be capable of paying the costs

Condom Factory Hypo:

F: A discontent worker in the condom factory, he puts holes in the condoms and they get
wrapped and put into the boxes. P uses the condom and gets an STD.
P: Sues the store because the condom manufacturer is out of business. Sues under product
liability – warranty.
D: Store says they can’t inspect the inside of the product
H: Store can stop carrying certain brands, they can’t control the manufacturer, but they can
control the marketing.
It is fair to sue the stores for product liability even though they can’t inspect because
the stores have the ability to use market control to ensure safer products. Strict
liability will make the store owners more careful / cautious about what they carry.

Pharmacy Hypo:
F: Person gets sick from a prescription. Tries to sue the pharmacist.
In California, can’t sue the pharmacist because he works for the doctor, they don’t
have a choice, they can’t select the a better product.
Some jurisdictions hold the pharmacist liable for: 1. Giving too much, 2. A prescription
that negatively interacts with the other prescriptions they are on, 3. a medication that
is only supposed to be taken 1/month and this is the third prescription, 4. Wrong
prescription (quantity or substance). Have a duty to non-negligently distribute the
drugs.

Holding Bar in the Back of the Bus Hypo:

F: Have bus and manufacture a bus and the back of the bus has seating in a U around the
outside of the back, in the middle is a pole for people to stand and hold on to. On day P is sitting
in the middle in the back and she’s trust forward and hits her head on the pole
P: Sues manufacturer and claims design defect, the pole is the design defect.
D: Manufacturer will say that the pole protects the majority of people and that P knew it was
there, it was obviously and why wasn’t she holding the pole when the bus stopped. This is
perfectly safe when the bus is full, only dangerous when bus is empty.

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H: Patent (obvious) defects aren’t defects at all, they are about assumption of risk and this pole
was a patent defect.
Patent Defects say that they aren’t too dangerous because products have to be
useable. And if the nature of the design is what makes it useable the product won’t be
defective unless it’s so dangerous that it shouldn’t be manufactured at all

Lawn Jarts Hypo:

F: Used to be a modern game lawn jarts (darts) that was like a horse shoe that you would try to
get it in a circle. It could really go if you had a good arm.So people would throw them over their
houses to see how far they could throw themWhen they were thrown from the back yard to the
front they could hit people that were 75 or 100 yards away
This was an foreseeable unintended use, The danger was open and obvious.

Micallef v. Miehle Co., 348 N.E.2d 571 (1976)

F: Ink drums in printing press, get blots. They get blotches on the newspaper. Takes too long to
slow the press down. Have a sheet of plastic and as the drum comes around it goes fast, but not
so fast that you can’t see it. You slap a piece of plastic where the hickie is on it. It comes out
with the rest of the newspapers. This is catching the hickies on the run.
P: Doesn’t sue employer because of worker’s comp. and doesn’t want scheduled payments, sues
the manufacturer and says this is inherently dangerous, should be made
D: Manufacturer says that you were aware of the defect, patent defect (like assumption of the
risk)
H: Its foreseeable because of the economic incentives to not stop the machine and lose time and
productivity. Therefore the manufacturer should foresee that people will do it this way.
P can still recover when there’s a patent defect if the P can show that it is foreseeable
that it will be used this way.

Third restatement adopted Micallef: the fact that it is patent is a factor to consider in
foreseeable unintended use

Metal Punch Press Hypo 1:

F: Punch press – like a 3 hole puncher, but now its in piece of metal. Big pieces of metal will
stay on their own. Small pieces of metal need to be held there, and it could clip their hand. Or
sometimes they could misalign and put their hand right under it. Guy does this and his hand
gets severely hurt.
P: Product defect because its foreseeable that this will happen.
D: Not the intended use.
P wins because using hands in a punch press is a foreseeable unintended use.

Metal Punch Press Hypo 2:

F: Manufacturer learns from last mistake and puts in two levers so you have to hit both buttons.
So the worker just rewires it. And gets hurt again
P: Defective product, safety feature is too easy to override.
D: Designed safely
If a safety feature is too easily overridden it can still be a design defect.

Metal Punch Press Hypo 3:

F: Again manufacturer learns and makes it so it can’t be rewired, so the worker calls his buddy
over to hit the second button and again he gets hurt.
P: Sues again and says its foreseeable.
D: Says cost risk benefit, nothing I can do to make it any safer.

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A manufacturer is not liable of he makes his product as safe as he possibly can and the
P still purposely circumvents the safety features. [D will claim poor workplace
supervision.]

How a Plaintiff can overcome worker’s compensation:

1. Sue manufacturer and let him interplead the employer and say that it was negligent
management of the workplace that caused the injury. Manufacturer would say that it wasn’t a
defective product. [P claims foreseeable unintended use]
2. Plaintiff just needs the manufacturer to be 1% liable and then they can chose to collect
everything from the Manufacturer
3. Then the manufacturer will sue the employer for their contribution (comparative difference).
[Joint and several liability and comparative and joint tort feasors means that you can get money
from both]

Foreign Matters (which foreign matters are defects?)

• If its natural matter from the thing involved in the product (shells with peanuts, bones
with chicken) then you lose because its not a foreign substance
• If you have shards of metal in medicine then you can sue
o You can sue and win when it’s a foreign substance

Burden of Proof Rules

• If it is a manufacturing defect, the plaintiff will have to show that there was a defect
causing the injury and they win
o Have to show it was there when it left the manufacturers hands
• If it is an aspect of the design however – can show that the design aspect caused the
injury
o Can prove that you were injured because there wasn’t a roll bar, or because
motorcycle didn’t have 3 wheels, or because the thing going backwards wasn’t
beeping.
• Most jurisdictions the burden of proving the defect is on the plaintiff
• Deal with cost benefit now called risk-utility analysis
o Have a convertible – would look at if the design aspect is unreasonable dangerous
 What’s the risk of creating it this way
 What’s the benefit of creating it this way
 What’s the cost of doing it differently
• California decided that this should be a split burden (2 prong test in Cali)
o 1. Plaintiff has to prove the defect
o 2. Up to the defendant to prove that it wasn’t unreasonably dangerous after a risk-
utility benefit
 Defendant has to justify the design (reasonable, prudent, etc.)
• Doesn’t mean that everything is a defect. Just means that the defendant has to prove
reasonableness. Not that the plaintiff has to prove unreasonableness.

Definition of a defect
• Defect unreasonably dangerous (2nd restatement)
• Negligently or dangerous designed product (3rd restatement)

Linegar v. Armour of America:

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F: Cop hit and killed by a bullet while where the vest didn’t cover
P: Says design defect, unreasonably dangerous
D: Says that there are 2 designs. The cheaper design (which the police station has) has the
advantage of allowing more movement so people are more likely to wear it because its more
comfortable and that’s safer than not wearing one at all. Further, most bullets come from the
front and it protected against that.
One way of deciding if something is a design defect is to see if it performs as people
expect it to. Or can look at the common / deluxe model analysis.

Common and deluxe model

• If only sell the deluxe model then people who could afford only the common model
wouldn’t buy anything because they wouldn’t be able to afford the deluxe
• Its possible to have a cheaper product that is less safe, so long as its sufficiently safe in
and of itself, because if its at a maximum safety it would be unaffordable.

Above Ground Pool Hypo:

F: Some people have a deck around it, some have a ladder on a deck, some just have a ladder
that hooks. The cheapest model is just the ladder, safety design because you can take the
ladder away and people can’t get in the pool. Kid is swimming in the pool and someone takes
away the ladder and he can’t get out and he drowns .
P: says design defect because it’s the only way to get out of the pool and therefore its
unreasonably dangerous. This is a foreseeable unexpected use.
D: Unforeseeable that someone wouldn’t look before taking out the ladder.
If the model poses a risk that is foreseeable, yet unintended the manufacturer is still
liable.

Harley with Shift Gear Next to Gas Tank Hypo:

F: 1952 Harley, not the same as modern motorcycles, the gear shift is right next to the tank.
You use a handle to deactivate the clutch and you move the lever. Accident because you have to
have one hand off the handle bars to shift the gears.
P: Bad design
D: State of the Art
In NJ State of the Art isn’t a defense, because D put it in the stream of commerce to
make money and its too bad for them that they couldn’t design more safely.

1934 Chevy with no Seat Belt Hypo:

F: 1934 Chevy doesn’t have a seatbelt. Could have had a seatbelt. Go through the front
windshield, sue and say no seatbelt it’s a defective.
D: Defense is state of the art – we hadn’t thought of it
State of the art, consumer expectations.

Bass Boat with Outboard Motor Hypo:

F: Bass boat, troll for bass, outboard motor but a little wider. Quite possible that someone can
fall off the boat. Design to keep operating even when you standing up, keeps going even when
no hand is on the outboard motor control, for ease of fishing. Boats tend to go in circles when no
one is handling them. People get run over when the boats go in circles. 8 years after they sold
this, they designed a computer chip that operated on a pressure place, so that when the weight
was removed the motor cut off.
F: Design defect, should have used the new technology.
D: State of the art, it was scientifically impossible at the time.
If it was scientifically impossible, it can be a defense.

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State of the art tends to be what they thought of at the time, not what they could do. Based on
the consumer expectations
• Seatbelt in 1932 Chevy is not defective because the expectation of the consumer

Evidence Rule
• Subsequent repair rule (applies in negligence cases) – evidence of repairs after
the accident are not admissible (p. 718)
o Idea is to encourage people to fix it so that other people won’t get injured
o If fixing it was able to be used against people then people wouldn’t repair things
because they wouldn’t want to admit there’s a safer way to do it

• Tends to be evidence of subsequent design changes to show the design was feasible – this
shows that it was possible to manufacture it differently

Subsequent modification
• Different than subsequent repair
• This is the punch press issue
• This is the manufacturer’s duty to make the product safe for specifically unintended uses
when they have a reason to know it will be used that way
o Hickies on the run is another example

Back to the punch machine when the worker rewires the machine
• Manufacturer is liable if the product is easily modifiable in a way that they know
would make it dangerous
• If you can’t modify it in a way that would make it un-modifiable, then you are
not liable for making it un-modifiable
o It gets modified and then 5/6 years later someone gets their hand punched
o Has to be defective when it left their hands
• Only liable for post sale changes when the post sale changes were induced by
the fact that it was originally defective (i.e. easily modifiable)
o P. 720 – reasonably should have been anticipated by the product seller

O’Brien v. Muskin Corp., 463 A.2d 298 (N.J. 1983)

• Legislature has overruled the judicial decision
• O’Brien v. Muskin was altered by statute in NJ which provided that “the manufacturer or
sell shall not be liable if: (1) at the time the product left the control of the manufacture,
there was not a practical and technically feasible alternative design that would have
prevented the harm without substantially impairing the reasonably anticipated or intended
function of the product”
• The Third Restatement follows the same line by requiring “that the plaintiff show a
reasonable alternative design…even though the plaintiff alleges that the category of
product sold by the defendant is so dangerous that it should not have been marketed at
all” RTT:PL §2, comment d
• Requires that the plaintiff show an alternative design

Potter v. Chicago Pneumatic Tool Co.

F: Vibrations from the tools can cause injury in arms and hands

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Court says tough luck to the manufacturer, there was all sorts of expert testimony that
told how it could be designed differently. It’s up to the jury to see if it’s defective or
not.

Unavoidable Dangerous Product

• Dangerous and you can’t avoid it and it shouldn’t be a defect
• Two typical examples
o Pharmaceuticals
 All drugs have side effects
o Gun / Knife
 All knives and guns can kill people
• Essential nature of the product that gives you the benefit also creates the risk. If you do a
cost benefit analysis you can’t get the benefit without the cost and it makes it unavoidable
• Sharp knives never get to be an issue

Halliday v. Sturn, Ruger & Co.

Bad hand guns (Saturday night specials) are defective and allowed to be banned
because they have dangerous that don’t meet consumer expectations (like blowing up
in your hands). Good guns are not defective. (A certain design aspect might make it a
defective product, but the fact that you point it at someone and it can kill them doesn’t make it
defective)

Warnings

Can make an unsafe product safe with a warning. The warning must be adequate (cannot be on
a removable tag)

Beach Rescue Hypo:

F: There is a risk at beaches of people coming close to drowning and being saved, but then get
hypothermia. Want to warm up the person after they are saved, so they take a block that’s in
plastic and put it on the guy’s chest. The problem is that it was purchased 5/6 years ago and the
warning is on the box that is now MIA. The warning on the box said not to use it on the skin. But
they use it on his skin and gets 3rd degree burns.
In adequate warning if its on a box and it is foreseeable that the box will be thrown
away.Might be perfectly okay to put warnings on the box if its something that you use
once (shortly after the purchase) the manufacturer can put warnings on a less
permanent kind of thing (such as the box).

Super Sharp Steak Knives Hypo:

F: Designing a new set of steak knives. This is going to be the sharpest steak knife available. Its
made of surgical steel, sharper than a razor. Someone is using it and cuts off their finger.
P: says that the knife is too sharp, unsuitable for the kitchen no matter what warning is used.
D: says that they gave clear warnings that it was overly sharp
In some circumstances warnings might not be sufficient no matter what you say. An
super sharp (scalpel) sharp knife is not unavoidably dangerous, its just too sharp for
its purpose.

Davis v. Wyeth Laboratories, Inc., 399 F.2d 121 (9th Cir. 1986)
F: Vaccine has risk of injury. Accurate warning (1 out of 3 million).

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Warning isn’t good enough because it wasn’t understanble. D knows that the
consumers aren’t getting properly warned because the message that gets
communicated is “almost never” (The warning intermediaries aren’t giving adequate
warnings). Warning would have been better worded as ~75 cases per year, not 1 out
of 3 million.

Theory of Large Numbers

• In large enough numbers very unusual things with increasing frequency
• Bigger the number the more likely unusual things (bad or good [winning the lottery
twice]) will happen

Warning Issues
• Communication Issue
• Understandability of the warning

Humidifier Hypo:
F: In 1940s was a bottle with a screw top, in the screw top is a metal coil and you plug it in and
it got the water boiling and the steam came out the hole in the top. Tend to use them in rooms
with elderly people and rooms with children. Put the vaporizer by the kid, might put it on a chair
and the kid gets up and the water scolds the kid.
P: Defective product – the alternative is using a plastic bottle
D: Old people want a top that comes right off, they don’t have the hand strength to unscrew the
top
Defective product, foreseeable unintended use.

Humidifier Hypo 2:
F: So now will need a latch on the top, so the top won’t come off. Get complaints from the
elderly that they can’t handle the latch. Going to make an old person model. This will have all
sorts of warnings not to use near kids. So now grandma buys it and uses it near the grandkid
when he visits and the same thing happens

Massachusetts Court held that the warnings weren’t adequate because no matter where the
warning was you would use it near kids sometimes (Vassallo v. Baxter Healthcare Corp.)
• Certain products can have warnings and not be sufficient because no matter what people
aren’t going to follow it

Crane with Cables Hypo:

F: Have a crane with steel cable. Have different size / strength steel cable (thicker is stronger).
One day the worker picks up the 5 ton instead of the 10 ton, the cable breaks and people are
injured (rainy day and can’t see the cable)
P: Fellow servant doctrine – going to sue the manufacturer of the cable. Design alternative that
is a color strip.
D: The only people that use this is trained construction people
H: Court said that despite the fact that people are trained, the manufacturer had to realize that
it could be used in situations where people don’t have the opportunity to use extreme car in
getting the cable (could be dark, etc.)
Doesn’t matter if the person using the product is trained, if it is still reasonably
foreseeable that someone could make a mistake the manufacturer is liable.

Can of Tile Glue and Pilot light Hypo:

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F: Can of tile glue and you put it on the floor and put the flooring tiles on it. Comes in a can like
a can of paint. One of the warnings says “flammable, do not use near an open flame”. Guy
decides that he needs to upgrade the cabin that he uses on the weekend, old cabin, old
appliances everything. He fixes up the floor and starts putting the stuff on with the tiles. The
whole thing blows up severely injuring. The pilot light in the stove was in side and the fumes
were flammable and they got out and the vapors ignited .
P: Defective product, the warning was inadequate because the degree of flammability of the
vapors was not adequately conveyed because of the manner that this could be used (in the
kitchen near a stove, or a concealed flame in the water heater in the basement). If it was that
flammable they should have articulated what else could start the flame.
D: Warnings were on the product.
Warnings need to sufficient to warn of the full extent of the danger.

Can of Tile Glue and Pilot light Hypo 2:

F: This time has all warnings that you could possibly have on the can. Same thing happens.
P: Says there were too many warnings, couldn’t read them all, didn’t know which ones were the
most serious.
D: The warnings were there, should have read them, presume that they are read.
H:
Defendants can presume that the warnings are read. But too many warnings is a
warning defect. Even if you don’t read the warnings, you can still sue if they are
insufficient.

Inadequate warnings
• Long term product with a short term warning (on a tag or something)
• If you have too many warnings so they are so overwhelming that no one reads them
o Can assume that the warnings are read, but even if they weren’t and they are
inadequate, the P can still sue.

Drano Under the Sink Hypo:

F: Drano used to be sold in a can. Takes the Drano out from under the sink and blows up in her
hands. And the chemicals splash allover her face and cause injuries and blindnessWoman sues
the manufacturer and the A&P (strict liability applies to the retailer as well). Don’t know why the
can blew up, but the only way it could have happened is because moisture got into the can
(powder kind, not liquid), it expanded. It exploded because it was a metal can with a screw top,
and the weakest part of the cans were the seems not the top. Eventually the seems blew and
the whole thing blew. If this had been a brand new can, she wouldn’t have had any problem.
There was a warning about not getting moisture into the package. She testifies that she didn’t
get any moisture into it.
P: Two defects: Manufacturing Defect, the moisture must have gotten in the can at the
manufacturer because she didn’t do it [if there was a leak in the can the vapors would have
escaped and it wouldn’t have blown up]. Design Defect: Moisture must have gotten in (res ipsa –
she doesn’t know how it happened) and the top should have been a pop top so that it blew at
the weakest point and didn’t explode.
P can use the new design with a plastic top to show viability of an alternative design (but not
admissible for negligence). She also says that it was foreseeable that this would be stored under
the sink, that’s where everyone stores it. So it should have been made so water didn’t get in or
warn not to store under the sink.
H: She gets to the jury on the defect design, jury finds against Drano, but for A&P. (Jury
nullification - Jury didn’t like the idea that the retailer should be liable just for selling the stuff)

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Jury Nullification
• When the jury finds contrary to law, they are nullifying or rejecting the subsistent law
o i.e. in England where the difference between a misdemeanor and a felony was
stealing 1 additional pound, the jury would often find people who stole more than a
pound guilty of the misdemeanor b/c they didn’t want to convict of a felony.

Dangerous Antibiotic Hypo:

F: There’s a pharmaceutical product – antibiotic. High powered antibiotic that’s been approved
for certain infections. Approved in a limited use because it has rare and serious side affects. It
can cause aplastic-anemia. This drug becomes one of the largest selling antibiotics in the US.
Drugs are sold by pharmaceutical companies, used to be sold by “detail men”. 11 year old girl
has a cold and goes to the doctors (doctor 1) and the doctor prescribes the antibiotic for 10
days. Mom calls the doctor and he wont’ give another dose, so she calls another doctor (doctor
2) who prescribes it over the phone. Then the girl still isn’t better so the mom goes to the
pharmacist and gets a 3rd prescription from the pharmacist. The daughter keeps getting worse
and its found out she has aplastic-anemia and she dies. Warnings are on the product that go to
the doctor.
P: Mother sues doctor 1, doctor 2, the pharmacist and the drug manufacturer
Doctor 1 (Defense): Not me it was the other 2.
Doctor 2 (Defense): Not me it was the other 2.
Pharmacist (Defense): She was already taking the drug, the harm was already done (causation
defense), my prescription didn’t matter. [I wasn’t negligent, Pharmacists can only be sued in
negligence. ]
Manufacturer (defense): Nothing wrong with the product, we gave warnings (doctor 1 ignored
the warnings)
• P gets around this by saying: very popular, they are responsible because it was marketed
extensively through the detail men
o Overly marketed and the information was distributed by the detail men
• Plaintiff puts together the over-sale with the detail men
o The detail men are undercutting (undermining) the warning of the product
o Manufacturer is now responsible for doctor 1
• Drug itself can cause aplastic-anemia, undermines the cause in fact
o Jury can consider
H: The jury finds everyone liable, Pharmacist – shouldn’t give a prescription, Doctor 2 – should
have found out that there was a prescription available, Doctor 1 – once you get past the
causation defense, he had clear warnings and shouldn’t have used it. He’s negligent in
prescribing, even though the manufacturer is liable for a warning defect (because the
undermined the warning). She just had a cold, didn’t have one of the more serious diseases.

Can’t do anything about the mom because she wasn’t negligent in her care (Her conduct may
have been foolish). The defendants have a duty to keep her from practicing medicine.

Plaintiff’s Conduct
• Contributory negligence and Assumption of the risk, Patent defects, modifying machines
are all plaintiffs conduct
• Can have two different meanings / implications
o 1. Misuse of the product
 Daly v. General Motors Corp.
 Rule of law that causes problems: Requirement that manufacturers that

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 design products that are safe for foreseeable unintended uses
o 2. Foreseeable misuse  Comparative law in the area of products, called
Comparative Causation
 There’s a defect, and the plaintiff wouldn’t have been hurt if he didn’t do
anything
 Dissenting judge in Daly says that once you permit comparative
constructions in the tort/definition of product defects, you’ll come up with
baby splitting rules
o Will come up with a finding that the product was defective as
well as misuse
o 3. Can be something wrong with the product and something wrong with what the
product did
Clear demarcation between a product that is defective and one that isn’t
• Defective product – injures someone because its defective and its used in a foreseeable
unintended use
• Non-Defective product – injures someone because it was misused
o Used in an improper dangerous way

Dissent / Concur in Daly

• Says that shouldn’t knock out anything

Circus Knife Thrower Hypo:

F: Guy joins the circus and talks a girl into joining the circus with her to be a knife thrower. He
decides to use regular kitchen knives, but they aren’t balanced for throwing.
P: Girl sues the guy for being negligence and wants to sue the manufacturer, saying that it’s a
foreseeable unintended use.
Throwing kitchen knives is a misuse of the product.

Daly v. General Motors Corp.

Using a chain saw to cut your toe nails (in the dissent) is a non-defective product that
is misused

Texas Carburetor Hypo:

F: Distributes gas through the car. Sits on the engine. The carburetor fails after a few months, it
was a bad carburetor. There was a manufacturing defect in this carburetor. This guy is handy, so
he takes out the old carburetor and replaces it with a new one. He’s making a left turn and the
car stalls and he’s left in the middle of the street. The car stalls because he put the replacement
carburetor in backwards. The original carburetor has a defect, it didn’t cause the accident, but
caused him to replace the carburetor.
P: Foreseeable that when a manufacturer sells something with a defect people will try to fix it.
D: He modified it, it was an after market item. And its not foreseeable that he’d install the new
one wrong.
H: Court said that it was a defective product, you will. However you have comparative causation
and the jury determines how much of the accident was caused by the negligence backwards
installation and reduces the verdict
Note: Can’t sue the new carburetor manufacturer because there were clear instructions.
Comparative causation can mitigate the defendant’s liability, if the act is so wrongful it
can’t be considered a foreseeable unintended use, its just a misuse. [This is a good
example of inappropriate plaintiff’s conduct]

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What kind of conduct do we compare? What kind of conduct don’t we compare?
• Have the case where they said that it is as if you read the warnings
• If the defect isn’t communicated then the manufacturer should be liable if there’s too
much warning, because the most important warning isn’t read
• Assume that you read the instructions and then look to see if the warning was adequate

Ayers v. Johnson & Johnson Co., 818 P.2d 1337 (Wash. 1991)
Presume that an adequate warning would have made a difference (this is like Lone
Palm Hotel) can’t defend on the ground that the warning wouldn’t have made a
difference.

LeBouef v. Goodyear Tire & Rubber Co., 623 F.2d 985 (5th Cir. 1980)
F: Car is going over 100 miles per hour& driver is drunk. Claimed defect is in the tires. There
was a warning
P: Bad warning, the manual didn’t state whether the tires on the car were or were not of high
speed caliber. Not an adequate warning. It also assumed you would investigate to make sure the
tires were the right type.
D: says he was drunk and he was speeding
P: Not just foreseeable, but expected that it would be driven at over 85mph because of the
allure of the speed of the car
D: says misuse of the product (as far as being drunk), theory is that if he wasn’t drunk he
wouldn’t have been going 105mph
P: says that everyone speeds and everyone drives after drinking. Can’t sell a car that’s only safe
for someone sober to drive. Foreseeable undesired behavior.
Drunk driving and speeding are foreseeable misuses of cars. Cannot make vehicles
that are only safe for sober, law abiding citizens to drive.

Latch on the Screen Window:– Foreseeable misuse

F: Screen window with the bad latch, kid falls through the window and is injured
H: Using the screen as a safety guard is not a foreseeable use, it’s a misuse
Not all accidents are foreseeable unintended use. You can have pure misuse if the
defect is something that the manufacturer didn’t foresee and didn’t have a duty to
protect against.
This is a proximate cause issue – the defect is not the proximate cause of the injury because the
manufacturer had no duty to make the screen safe as a restraint. Limiting duty to certain design
aspects.

Hernandez v. Barbo Machinery Co., 957 P.2d 147 (Or. 1998)

F: Didn’t know that the machine was on
P: Manufacturer is responsible for normal inattentiveness.
D: The Plaintiff’s conduct comparative by him not being attentive.
Is the plaintiff’s conduct inattentiveness (not perceiving the danger)?
H: The court held that inattentiveness is foreseeable unintended conduct and it is not
comparative.
Inattentiveness can be foreseeable unintended conduct and it is not comparative.

§17 Apportionment of Responsibility Between or Among Plaintiff, Sellers and

Distributors of Defective Products and Others
• (a) A plaintiff’s recovery of damages for harm caused by a product defect may be reduced
if the conduct of the plaintiff combines with the product defect to cause the harm and
plaintiff’s conduct fails to conform to generally applicable rules establishing appropriate

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 standard of care
o Means that the plaintiff’s conduct is separate conduct to reduce liability when it is
the kind of conduct that justifies reducing liability
o Looks at whether it was foreseeable unexpected use or not
• (b) The manner and extent of the reduction under Subsection (a) and the apportionment
of plaintiff’s recovery among multiple defendants are governed by generally applicable
rules concerning responsibility

Kassouf v. Lee Brothers, Inc. 26 Cal. Rptr. 276 (Cal. App. 1962)
F: Guy eats the worms and maggots (doesn’t look at the bar while eating it)Question is whether
this would violate the responsibility to eat in a normal and prudent manner? Or whether the
normally expected rules of the second restatement
D: says that anyone who ate it would have notice, and the only people who didn’t notice it would
be negligent
H: P was under no duty to discover latent defects in D’s product
Plaintiffs don’t have the duty to discover latent defects in products.

Warnings and Instructions

Hood v. Ryobi America Corp.:

F: Guy removes the blade guard on the saw and the blade comes off injuring him. He thought
the guard was just to protect things from getting in the blade. There are warnings about how not
to use it. Also in the instructions.
Warning and instructions can blur.

Hair Care Product Hypo:

F: Put stuff in your hair and you put on the curlers. And then you wash it out. Instructions say to
only use for 30 minutes and test before using. It says “no more than ½ an hour”. P leaves it on
too long gets burns on his scalp.
P: Inadequate instructions, didn’t tell me all the dangers.
D: Says that the warnings was in the warnings and instructions and everyone is presumed to
read the instructions.
H: If you leave it in too long you can’t sue.
Note: If the formula changes then there will have to be significant warnings to alert to the
changes in the product (if the changes are so severe that it would cause you injury if used in the
old manner)
Instructions are perceived as more likely to be followed, and clearer limitations on the
product and its also perceived that people will read the instructions. Perceived to be
read.

Over Inflated Tire Hypo:

F: Tire, says don’t inflate to higher than 60 pounds. When you are driving you only have 30 or
so. This is a tubeless tire, they come with no air in them.You usually put in a lot of air (to make
sure that there isn’t a leak, over fill it some) and then let the air out to the proper pressure. Guy
doesn’t have a gage but he has access to the air pressure pump. Fills it up and at about 80 lbs it
blows up causing injury.
P: Product liability, the defect is in the warning. The warning of the 60 lb max isn’t sufficient.
D: Manufacturer says that on a cost benefit analysis they wouldn’t want a tap that blows out
because it would destroy the tire and it would have to be thrown out. Say that they have a
sufficiently great toleration that this shouldn’t be a problem. There are no other viable designs.

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H: The warning is insufficient because it doesn’t say anything about explosion and it isn’t severe
enough to give people sufficient incentive to have a guage.
Warnings that don’t detail the most severe consequence often are not sufficient
because they do not give a significant incentive to take care.

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