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Tort Outline

Monday, December 01, 2008


2:02 PM

There are two main types of torts:


○ Negligence
 Failure to observe the standard of care required by law under the circumstances
○ Intentional torts

1. What is tort law designed to do?


a. To maximize social wealth for everyone in society - the allocation of scarce resources to the people that value a particular resource
the most
b. Economic Purpose of Tort Law, to minimize the social costs of accidents
a. Min. L(x,y)=p(x,y)D(x,y)+A(x)+B(y)+C
1) L(x,y) = Social cost of accidents, given x and y units of precaution by A and B
2) p=probability of accident
a) Depends on many factors
b) It is a function of the amount of care taken by the victim and injurer
3) D=Victim's damages if accident occurs
4) A(x)=Potential victim's precaution cost
5) B(y)=Potential injurer's precaution cost
6) C=cost of administering legal system
b. So economic goal is to minimize this function (the goal of tort law is not to eliminate all accidents because this brings an
extraordinary cost)

• Hammontree v. Jenner
○ Defendant had a seizure while driving and drove into plaintiff's bike shop. Plaintiff was injured and property was damaged.
○ The defendant had a history of these seizures but had complied with all of the rules of the DMV
○ The court ruled that the defendant should not be held strictly liable but that he could only be liable through a theory of ne gligence.

• The traditional goal of tort law has been to restore a victim to their equivalent condition prior to the harm. (Often money damages)
• The death of a defendant rarely causes the abatement of otherwise valid lawsuits
○ Beneficiaries will argue on behalf of the defendant
• If a victim dies, there are two separate interests:
○ The victim's interest in her own bodily security
○ Victim's dependents' interest in continued economic su
• Survival Action:
○ The estate of the deceased brings suit for any harm for which the deceased could have sued had she survived.
○ This would include medical expenses, lost wages, and pain and suffering
• Wrongful Death
○ Action may be brought by and on behalf of legally designated beneficiaries, usually close family members or next of kin, to r ecover for
the pecuniary loss that the death has caused.

Vicarious Liability
• Respondeat superior:
○ An employer is vicariously liable for torts committed by employees if the employee was acting in the scope of their employmen t. This
is a doctrine of strict liability.
○ An employee is acting in the scope of their employment if all of the following are true:
 The employee must be about the employer's business and the duties assigned by the employer, as opposed to being wholly
involved in a personal endeavor.
 The employee's conduct must occur within the hours and ordinary spatial boundaries of employment
 The employee's conduct must be motivated, at least in part, by the purpose of serving the employer's interest Generally
this causes the most controversy. For example if an employee even thinks that he is serving the employer…employer can be
liable
○ Holding employers strictly liable for torts committed by employees shifts the loss from the victim
○ Vicarious liability provides the following incentives for employers:
 To select employees cautiously
 To effectively supervise employees
 To discipline employees who have committed negligence and thereby exposed the employer to liability
 To consider alternatives to employee efforts such as the mechanization of particular tasks or a reduction in the overall scale of
the employee's activities.
○ Christensen v. Swenson
 Swenson takes a 15 minute break from work and goes to café.
 Swenson is involved in an accident on the way back
 Plaintiff sues Swenson and her employer, Burns, for Swenson's negligent driving
 Summary judgment for defendant is denied because:
□ On the first test, reasonable minds could differ because Swenson claimed Burns told her that it was good for a security
guard to be seen on and around the plant.

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guard to be seen on and around the plant.
□ Burns did not specifically prohibit guards from going to the nearby café
□ Swenson could have had the employer's interest in mind in that she was going to get something to eat to be more
productive.
• Independent contractors:
○ An entity that hires an independent contractor is called a principal.
○ A principal may be held liable for the acts of its agent that are within the course and scope of the agency.
○ A principal may be liable to a third party for acts of its agent which are within the agent's apparent authority.
 Apparent authority is authority which a principal knowingly tolerates or permits, or which the principal by its actions or words
holds the agent out as possessing.
 Apparent authority will exist only where the principal creates the appearance of an agency relationship
 An apparent agency exists when all of the following are present:
□ The independent contractor is representing the principal
□ A third party relies upon that representation
 Third party has reasonable belief that contractor is in fact an agent of the principal
□ A change in position by the third party in reliance on the representation
 Third party would have acted differently had they known the independent contractor was not in fact an agent as
they believed.
1. Under Tort Law:
a. If the patient has reasonable belief that the independent contractor provides services by the employer then the employer is
vicariously liable.
2. If there are certain conducts the independent contractor was hired to perform then the principal becomes an employer and will be
held vicariously liable.
a. To be more precise, if the principal understands there are peculiar dangers in what the independent contractor is doing, then
the principal will be held liable for incidents that occur.
b. If there is a probability of harm in what the contractor is doing, this can be considered to be a peculiar danger in which the
principal can be held liable.
○ Roessler v. Novak
 Roessler alleged that a doctor was negligent in reading medical scans
 He alleged that the doctor was an agent of the hospital
 The hospital said he was an independent contractor
 The court ruled there were questions for a jury and that a defendant should not be granted summary judgment:
□ Independent contractor worked exclusively in hospital
□ The hospital assigned a doctor of the independent contractor to Roessler who originally came in seeking services from the
hospital
□ It is unclear whether or not the independent contractor was working with the apparent authority of the hospital.
○ Restatement (Second) of Torts states:
 The employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the
contractor or his servants.
 Exception: One who employs an independent contractor to perform services for another which are accepted in the reasonable
belief that the services are being rendered by the employer or by his servants, is subject to liability for physical harm caused by
the negligence of the contractor in supplying such services, to the same extent as though the employer were supplying them
himself or by his servants.

Negligence
The Standard of Care:
Adams v. Bullock
• 12 year old boy came across a railroad bridge swinging a long wire. The wire struck a trolley wire and the boy was shocked and burned
• Plaintiff filed negligence claim against trolley co.
• The court ruled that the trolley company only had a duty to adopt all reasonable precautions to minimize the resulting perils.
• The court held that the trolley co. took reasonable precautions and that only an extraordinary event could have caused peril.

• Defendants standard of care must be that of "ordinary caution" or what a reasonable person would do under the circumstances
• "Negligence is the doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably
prudent person would do, under circumstances similar to those shown by the evidence."
• "Ordinary or reasonable care is that care which persons of ordinary prudence would use in order to avoid injury to themselves or others
under circumstances similar to those shown by the evidence."

United States v. Carroll Towing Co.


• The Hand Formula:
○ B<PL
 If the burden of precaution is less than the expected accident cost (probability of an accident times the expected loss) than
the defendant was negligent. (defendant should have taken more precaution)
 If the product of the probability of the accident occurring and the magnitude of the loss that occurred exceeds the burden of
precautions, then the failure to take those precautions was negligence.
• The court found that the bargee was negligent by not being on the barge at the time of the accident.
○ The accident occurred in the middle of the day and during a time of war. Therefore the probability of an accident was rather high and

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the bargee's burden of precaution was less than the expected accident cost.

The Reasonable Person


• Bethel v. New York city Transit Authority
○ Plaintiff was injured when a wheelchair accessible seat collapsed
○ Should common carriers be held to standard of extraordinary care?
○ The court ruled that a common carrier is held to a standard of reasonable care
 The hand formula takes into account all of the circumstances of the situation. If the loss is large, the burden of precaution must
be higher. If there is a very high probability of loss, the burden of precaution must be higher.
 A reasonable person would take precautions up to the point where the burden equals the cost of the accident (PL). Once the
burden exceeds the cost of the accident, the person is losing money.
 The hand formula takes into account why sometimes a heightened amount of care is needed for example when the loss is very
great, L increases and thus B must increase in order to satisfy the hand formula.
• Objective standards are then applied to groups of people
 "What would a reasonable blind person do in this situation?"
 What would a reasonable 13 year old do?
 That will determine what a specific person should have done in a situation.
• Children engaged in adult activities are still held to a reasonable person standard
• In the case of an emergency, a "person confronted with a sudden and unforeseeable occurrence, because of the shortness of time in which
to react, should not be held to the same standard of care as someone confronted with a foreseeable occurrence."

The Roles of Judge and Jury


Baltimore & Ohio Railroad Co. v. Goodman
• The judge decided that no reasonable jury could have found that the plaintiff had not been negligent because he did not properly check for
a train before driving across the tracks.

Pokora v. Wabash Railway Co.


• Cardozo decided "in default of the guide of customary conduct, what is suitable for the traveler caught in a mesh where the ordinary
safeguards fail him is for the judgment of a jury."
• So in this case, another person was struck by a train, and now a jury will decide what conduct is "suitable" in the situation.

• "What constitutes reasonable care under the circumstances ordinarily is a question for the jury."
 Not every case is for the jury, however, because defendants sometimes fulfill their duty of reasonable care as a matter of la w and,
therefore, no question of negligence remains for the jury's consideration.
Andrews v. United Airlines, Inc.
• Passenger was injured on an airplane when luggage fell out of the above compartments
• The airline has a duty of extraordinary care as a common carrier because this was before the change to a standard of reasonable care
• There was a conflict between the district court who granted summary judgment for defendant and circuit court who said the case should be
decided by a jury
• Although most of the evidence pointed to the defendant as not negligent, there was still a small chance a jury could find the defendant did
not take necessary precautions.
• Basically, even a small risk of serious injury to passengers may form the basis of liability if that risk could be eliminated "consistent with the
character and mode of travel and the practical operation of the business"

General principle: Most of the time, a judge, even though he has his own opinion, will send the decision to the jury. (The scenario just isn't
quite clear enough to grant summary judgment)

Role of Custom
• Custom is not conclusive of due care it is just relevant. It only persuades for due care or for lack of due care.
• It can be used offensively to show that the defendant did not take proper due care because his conduct was below the custom standard
• It can be used defensively to show that the defendant's conduct was higher than the accepted standard
• When certain dangers have been removed by a customary practice, this custom may be proved to show that a person has fallen below the
required standard. To conclude negligence, it must be shown that the customary practice is reasonable conduct for a person to follow
under all the circumstances.
• The basis for proof of custom and usage is if the practice reflects the judgment and experience and conduct of many.
• Its relevancy and reliability is based upon how practical the precaution is in actual operation as well as the readiness with which it can be
employed.
• Customary practice and usage need not be universal. It suffices that a practice be fairly well defined in the same calling or business so that
"the actor may be charged with knowledge of it or negligent ignorance."

Trimarco v. Klein
• Plaintiff was badly cut when he fell through his shower's glass door
• Plaintiff sued landlord and plaintiff showed that the customary practice was to replace the faulty glass with stronger glass.
• Plaintiff presented strong evidence that this had been a practice for many years
• The court held that a person can be held liable for not following an accepted custom or usage if it is found that the custom or usage is
reasonable.
• It was for the jury to decide whether the custom practice was a reasonable undertaking for the defendant.

Role of Statutes
• General rule: Violating a statute by itself is negligence. Called negligence per se

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• General rule: Violating a statute by itself is negligence. Called negligence per se
a. Prove that a statute exists
b. Prove that the statute was violated
• Do we treat statutes the same way we treat customs? No
a. A custom whether used offensively or defensively is relevant but not conclusive.
b. A statute used offensively is conclusive. It does not matter whether the statute seems reasonable. A judge is there to enfor ce the law
not to create it.
i. Constitutional system gives the Legislature the ability to make law
ii. It is held that the Legislature has the best opportunity to "get the law right"
c. A statute used defensively is not always conclusive. (someone could follow a statute but still be negligent). These will fal l in the
category of a custom…relevant but not conclusive.
• Can a customary violation of a statute be used as grounds for violating the statute? No

Martin v. Herzog
• Plaintiff's husband was killed when their buggy was stuck by a car traveling the opposite direction
• The buggy was traveling without lights
• The car was traveling in the middle of the road
• The defendants were negligent because they were violating a highway statute (traveling in middle of road)
• However, the plaintiff could not win because they also violated a statute (contributory negligence) by traveling without lights at night.
• To omit, willfully or heedlessly, the safeguards prescribed by law for the benefit of another, is to fall short of the standard of diligence to
which those who live in organized society are under a duty to conform.

• Violating a statute that defines a standard of care and safeguards that could never add to the danger if adhered to is negligence as a matter
of law.
• When a statutory rule fixes no definite standard of care which would under all circumstances tend to protect life, limb or property, then the
rule is subject to limitations such that it not be observed when observance would subject one to more imminent danger.
• A sudden event rendering a person incapable of following a statute or making the burden of following the statute extremely high, a person
would not be required to follow the statute.
• In order for application of the negligence per se doctrine the statute violated must be intended by the legislature to prevent the kind of
harm that the plaintiff suffered.
• Ordinances (local laws) are treated like statutes.

Tedla v. Ellman
• Plaintiffs were pedestrians walking on a busy highway in violation of a statute.
• However, under the conditions, the violation of the statute was necessary because had the pedestrians followed that statute, they would
have been in even more danger.
• The court agreed that it was ok for the pedestrian to violate the statute in this instance

Proof of Negligence

Notice
• Actual
○ Direct and explicit notice
• Constructive
○ A reasonable manager/store should have known about the spill or dangerous condition
○ Most cases rely on the concept of constructive notice
• Sometimes a plaintiff can recover on the "business practice" rule if the plaintiff can prove that a merchants method of selling a product
presents a foreseeable risk that the merchant failed to protect against.
• Negri v. Stop and Shop, Inc.
○ Plaintiff slipped and fell on broken jars of baby food in defendant's store
○ Plaintiff had testimony that the jars had been there for quiet some time
○ The longer the jars are on the floor, the burden of precaution on the defendant decreases (defendant had more time to clean i t up)
○ As a result, the defendant was found to have had constructive notice of the spill and was negligent in failing to clean it up .
• Gordon v. American Musuem
○ Plaintiff slipped on a piece of paper on the stairs of defendant's building
○ Plaintiff could not prove that the defendant had constructive notice of the paper because he could not prove the paper had be en on
the stairs for a reasonable amount of time.
○ Therefore, the burden of precaution on the defendant would have been high if the paper were only their a few minutes.
○ The defendant was not negligent.

Res ipsa loquitur


• The accident speaks for itself because of the overwhelming probability that negligence took place on part of the defendant.
• Justification for res ipsa
○ The defendant is best equipped to present evidence in the case; evidence that he was not negligent.
○ This argument does not hold up as well today as modern discovery practices allow of the exchange of evidence.
• Bryne v. Boadle
○ Plaintiff was struck and injured by a barrel of flour that fell out of a window of the defendant's shop
○ It is the duty of the defendant to ensure that barrels of flour do not fall out of the window and therefore when an accident of this
nature occurs, it is presumed that it happened through negligence. (In other words, a barrel of flour could not have fallen o ut of a
window without some sort of negligence.)
Plaintiff won on a theory of res ipsa loquitur

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window without some sort of negligence.)
○ Plaintiff won on a theory of res ipsa loquitur

• If there was a 75% chance defendant was negligent and a 0% chance plaintiff was negligent, the res ipsa doctrine would allow the plaintiff
to recover because there is a strong probability that the defendant was negligent.
• It is less clear if the defendant was say, 51% negligent.
• Res ipsa loquitur provides an injured plaintiff with a common-sense inference of negligence where direct proof of negligence Is absent if:
○ The plaintiff establishes that the instrumentality causing the injury was under the exclusive control of the defendant and,
○ That the accident is one that would not, under ordinary circumstances, have occurred without negligence on the part of the on e in
control. (This means that the court does not have to be 100% sure but that it probably wouldn't have happened without the
defendant's negligence)
○ The plaintiff cannot contribute to the accident
• Most states say that res ipsa permits an inference of negligence that if a defendant does not offer evidence the jury may return a verdict
for the plaintiff.
• McDougald v. Perry
○ Plaintiff was injured when the spare tire of a tractor trailer came out of its cradle and crashed through plaintiff's windshi eld
○ The court held that the tire was in the exclusive control of the defendant and that the tire could not have escaped under ord inary
circumstances without negligence.
○ The court also held that the plaintiff is not required to rule out all other causes but rather all that is required is that r easonable
persons can say it is more likely that there was negligence associated with the cause of the event that there was not.
• Ybarra v. Spangard
○ Plaintiff was injured while unconscious during surgery. The plaintiff had been under the care of many doctors and nurses.
○ The plaintiff was unable to identify the instrumentality causing injury nor which defendants had exclusive control of it. (be cause
plaintiff was unconscious) Plaintiff also obviously did not contribute to the injury.
○ The court held that a doctrine of res ipsa still applied to the defendants because there is a very high probability that as a group, they
were negligent.
○ Therefore the burden of proof switched to the defendant to prove that he or she was not negligent
• The court still rules that res ipsa applies to a group of defendants. (When res ipsa applies we never say that defendant automatically
loses…what we're saying is that defendant will lose unless he comes forward with evidence to show he was not negligent -- the burden of
proof switches to the defendant)
• A defendant can be dismissed if it satisfies its burden of showing that it was not culpable

Medical Malpractice
• The focus in any medical malpractice case should be on the procedure performed and the question of whether it was executed in
conformity with the recognized standard of care, the primary concern being whether the treatment was administered in a reasonable
manner.
• A witness, usually a doctor, is needed to establish the proper standard of care that should have been used.
○ Although a witness is not always needed. For example, if a surgeon leaves an instrument in someone, it is pretty obvious he was
negligent.
• Any doctor with knowledge of or familiarity with the procedure, acquired through experience, observation, association, or education, is
competent to testify concerning the requisite standard.
○ The doctor does not have to be in the same field as defendant but rather the witness (doctor) must be educated or have experi ence in
the area of interest.
• Custom is conclusive and defines the standard of due care because the jury or others unrelated to the medical field are not equipped to say
that a widely held custom by doctors is "not good enough". Only doctors can identify the standard of care….
○ Without a showing of custom in medical malpractice cases, the plaintiff will normally lose.
• What is the relevant universe for determining custom?
○ It initially was the same or similar locality to prevent "country" doctors from being held to the same standard as a "city" d octor
○ However, in modern times, medical practices are well known nationwide.
○ Therefore, courts adopt a national locality for determining custom
 The court rationalizes the national locality rule by holding that a doctor will be held to a standard of care under the particular
circumstances presented to the doctor. Therefore the court is sympathetic to the differing resources of different localities but a
national locality is still the "relevant universe."
• Two schools of thought doctrine:
○ If there are two schools of thought as to a medical procedure, as a matter of law, if a physician uses one of the schools of thought, he
cannot be held liable for using one over the other. (even if say 70% use A and 30% use B, if defendant uses B he is ok)
○ If it is customary but only used by a minority group, the defendant is still protected under the two schools of thought doctr ine.
○ At some point a school of thought may be used so infrequently that the doctrine would not apply. The group must be a "respect able
group"…implying enough people to establish a standard of care.
• Sheeley v. Memorial Hospital
○ The trial judge ruled that an expert witness could not testify because he wasn't in the same exact field as defendant.
○ That decision was reversed because as long as the expert witness has been educated or trained or has experience in the area o f
interest, he can testify.
• Expert testimony CAN be used to support a res ipsa claim
○ The opposing argument is if an expert is telling you that someone is negligent, why does the jury need to make an inference o f
negligence which is the basis of a res ipsa claim
• States v. Lourdes Hospital
○ Plaintiff was injured after undergoing a medical procedure
○ The issue here was whether the plaintiff could use expert testimony to show that the plaintiff probably would not have been i njured if
the defendant had not been negligent
The court allowed the expert to testify saying:

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the defendant had not been negligent
○ The court allowed the expert to testify saying:
 "In an increasingly sophisticated and specialized society such as ours, it is not al all surprising that matters entirely foreign to the
general population are commonplace within a particular profession or specially trained segment of society."
 "expert testimony to the effect that those in a specialized field of knowledge or experience consider a certain occurrence as
indicative of the probable existence of negligence is at least as probative of the existence of such a probability as the common
knowledge of lay persons."

Informed Consent Doctrine


• A doctor is required to inform patients of medical alternatives to the standard of what a reasonable patient would want to know.
• In a case where a patient would still have chosen A even if had known about B and C…the patient cannot prove that the failure to provide
info about B and C caused the injury because there is no causation in this scenario…(the plaintiff would have chosen A anyways, it wouldn't
have changed the outcome if the doctor has presented B and C)
• Are there ever special circumstances where the doctor is not required to inform the patient?
○ On therapeutic grounds where full disclosure would be detrimental to treatment (patient is better off not knowing)
○ When the patient is incapable of giving consent
○ When the patient says (do what you want to do, I don't want to know)
○ In an emergency situation
○ Risk is so obvious as to present a presumption of knowledge (getting ready to receive a shot)
○ Risks are inherent in common procedures and risks are low
○ When the physician does not know and has no reason to know of the risks of the treatment.
• Generally courts have not held that physicians must disclose experience.
• Matthies v. Mastromonaco
○ 81 year old plaintiff fell and broke her hip.
○ The doctor prescribed her bed rest and did not disclose her other options such as surgery
○ The court found that that the doctor was negligent by not informing the plaintiff of her options even though what he prescrib ed was a
noninvasive.
○ The court held that to obtain a patient's informed consent to one of several alternative courses of treatment, the physician should
explain medically reasonable invasive and noninvasive alternatives, including the risks and likely outcomes of those alternat ives, even
when the chosen course is noninvasive.
• Georgia law requires disclosure only of alternatives that are "generally recognized and accepted by reasonably prudent physicians."
• Courts have held that a competent adult may refuse life-saving treatment.
○ "if and only if, the patient is unconscious or otherwise incapable of giving consent, and either time or circumstances do not permit the
physician to obtain the consent of a family member, may the physician presume that the patient, if competent, would consent t o life-
saving-medical treatment."
• Some courts have refused to compensate for prolongation -of-life against the patient's wishes

Duty
• There is no actionable tort if the defendant owed no duty to the plaintiff, even if there was negligence on the part of the defendant.
• In most tort cases there is a duty. In most cases duty is assumed. Only in cases of exception do defendants sometime owe no duty to
plaintiff.
• DO NOT THINK WE NEED A SPECIAL SET OF CIRCUMSTANCES TO TRIGGER DUTY. RATHER LOOK FOR SPECIAL CIRCUMSTANCES THAT
WOULD SHOW DEFENDANT OWED NO DUTY.

Affirmative Obligation to Act


• In general there is no duty to act affirmatively to prevent harm to another.
○ Even when the burden of precaution is small to prevent the accident (merely giving a warning) (if you drop a banana peel you r
liable…if you don't drop it but see it, your not)
• An affirmative duty to act only arises when a special relationship exists between the parties.
• "Generally, a special relationship giving rise to a duty to warn is only found on the part of common carriers, innkeepers, possessors of land
who hold it open to the public, and persons who have custody of another person under circumstances in which that other person is
deprived of normal opportunities to protect himself." - Restatement (Second) of Torts section 314A (also jailer and prisoner, teacher and
pupil)
• What is common in all of these special relationships?
○ Think about the expectations of the parties and the expectation is that A will look after B (A will take care of B)….so if A will act
affirmatively to protect B, B can let its guard down because he is relying on A.
○ The nature of the relationship creates an expectation that one party does not have to be as vigilant because the other party is in
charge to protect
• Three instances identified by 7th circuit for affirmative duty
○ A contractual relationship between the parties to provide affirmative duty
○ When the victim is in the "custody" of the defendant there is an implicit contractual duty on defendant
○ The victim's peril was caused by the defendant (throwing the banana peel on the floor which caused the injury). This is true whether
you created the peril innocently, negligently, or intentionally.
• Why would we have such a doctrine?
○ Administrative difficulty, in some scenarios the burden of precaution may be close to the expected accident cost…and if there is duty
to act affirmatively…this gets difficult to sort out.
○ If you know you can be held liable for not exerting yourself to help someone else…you may not put yourself in situations wher e this
may happen. For example…people start going to the beach less because they fear that they might be liable for not helping som eone
in danger.

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in danger.
○ If its not voluntary to help then forget it…I'll take the risk of no one finding out. If I could do this out of the goodness of my heart then
I would do it.
○ We won't hold you liable for not trying to save a drowning person but we'll give you a $1000 incentive if you do.

• Harper v. Herman
○ 20 year plaintiff was a guest on Herman's boat
○ Herman stopped the boat at a popular shallow area for the guests to swim
○ Plaintiff dove out of the boat and severed his spinal cord
○ Plaintiff charged that defendant had an affirmative duty to warn him of the inherent danger of the shallow water
○ The court held that Herman did not have an affirmative duty to warn plaintiff because there was no special relationship betwe en
them.
 Plaintiff was not especially vulnerable and did not expect Herman to protect him

• Exceptions to the general rule that there is no affirmative duty to act:


○ "If the defendant does attempt to aid [a person], and takes charge and control of the situation, he is regarded as entering v oluntarily
into a relation which is attended with responsibility. Such a defendant will then be liable for a failure to use reasonable care for the
protection of the plaintiff's interests."
 What is the logic of this exception?
□ If by helping someone they would be worse off than the situation they were initially in
□ Another possibility is that by going out to save someone, you have deterred anyone else from going to save the victim
 It is a tort to make it less likely for a third party to render aid, In other words there is a duty not to make it less
likely for a third party to render aid.
□ The basis of this exception is that by trying to help someone you may make them worse off
□ Sometimes it is difficult to determine when rendering aid actually takes place.
○ Non-negligent injury: "if the actor knows or has reason to know that by his conduct, whether tortious or innocent, he has caused such
bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonabl e care
to prevent such further harm."
 Duty to render aid to a person in peril has been predicated upon the existence of a special relationship between the parties; in
such a case, if defendant knew or should have known of the other person's peril, he is required to render reasonable care under
all the circumstances."
○ Non-negligent creation of risk: "one who has done an act and 'subsequently realizes or should realize that it has created an
unreasonable risk of causing physical harm to another,' is under a duty to exercise due care to prevent the risk from occurri ng even
though at the time the actor had no reason to believe that his act would create such a risk."
• Farwell v. Keaton
○ Two teenage boys followed some girls into a restaurant.
○ The boys were chased out by some other guys and ended up badly beating one of the teenage boys
○ The court held that there was a special relationship between the two boys because they were companions in a common undertakin g
(pursuing the girls, enjoying each other's friendship during the night out)
○ "Implicit in such a common undertaking is the understanding that one will render assistance to the other when he is in peril if he can
do so without endangering himself."
○ So the court found that defendant had an affirmative duty to come to the aid of this friend especially because he knew or sho uld have
known of his friend's peril. Also, he started to render aid and therefore will be liable for a failure to use reasonable car e.

Negligent Misrepresentation (Duty to a third party)


• Randi W. v. Muroc Joint Unified School District
○ Robert Gadams was hired as vice principal in the Livingston school district where he sexually assaulted the plaintiff, then a 13 year old
student.
○ Plaintiff alleged that Gadams' former employers put in affirmative references for him despite their knowledge that Gadams had a
history of sexual misconduct. Plaintiff charged negligent misrepresentation and fraud
○ The court found that the former employers had a duty not to misrepresent the facts because there was a foreseeable risk to a third
party (the plaintiff)
○ "The writer of a letter of recommendation owes to third persons a duty not to misrepresent the facts in describing the qualif ications
and character of a former employee, if making these misrepresentations would present a substantial, foreseeable risk of physi cal
injury to the third persons."
• If the risk of physical injury against a third party is substantial and foreseeable, then a defendant owes a duty to that third party not to
misrepresent facts.
• Often the problematic question is…where do recommendations become half truths?
• The defendants feared that if they included the honest info in the letter then the plaintiff wont' get his job and he will sue the former
employers for defamation.
○ To answer this the court says that the former employers would be protected from a defamation suit under a statutory privilege for
non-malicious communications regarding a job applicant's qualifications.
○ To some extent the court trivializes the defendant's concern.
○ The defendant does not want to defend a suit using the statute. And if the defendants decided not to write a letter…they cou ld still
be subject to defamation because this implies something negative about employee.

A Psychotherapists Duty to Warn


Tarasoff v. Regents of the Univ. of CA
○ A patient of psychotherapist, Dr. Moore, gave the doctor reason to believe that he would injure Tatiana
○ The patient killed Tatiana and plaintiff brought suit that the doctor had duty to warn.

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The patient killed Tatiana and plaintiff brought suit that the doctor had duty to warn.
○ The court agreed saying:
 "in our view, however, once a therapist does in fact determine, or under applicable professional standards reasonably should
have determined, that a patient poses a serious danger of violence to others, he bears a duty to exercise reasonable care to
protect the foreseeable victim of that danger."
• "The protective privilege ends where the public peril begins."
○ The doctor-patient privilege is outweighed by the danger to the victim.
• In an instance where a patient tells a doctor he is going to kill a random person…there can be no duty imposed on the doctor because the
burden of precaution is unbearably high…there is no victim he can Identify.
• The idea here is that foreseeability is the important factor when looking at duty but that there are instances where no duty is found even
when there is foreseeability.
• The courts expressed concerning liability to future generations (pregnant mother)
○ "if liability ran to future generations 'society as a whole would bear the cost of our placing physicians in a direct conflic t between their
moral duty to patients and the proposed legal duty to those hypothetical future generations outside the immediate zone of dan ger.'"
• After Tarasoff Cal. Civil Code s 43.92 was enacted:
○ Therapists are immune from liability for failure to warn "except when the patient has communicated to the psychotherapist a s erious
threat of physical violence against a reasonably identifiable victim or victims."

When a statute can be enforced under a private right of action


• There is a three part test in determining the availability of a private right of action:
1. Is the plaintiff one of the class for whose particular benefit the statute was enacted?
2. Would recognition of a private right of action promote the legislative purpose?
 What was the Legislature's purpose when it enacted the statute?
 Would a private right of action promote that purpose?
3. Would the creation of such a right be consistent with the legislative scheme?
• Uhr v. East Greenbush Central School District
○ The plaintiffs parents sued the plaintiff's school district alleging that the district was negligent in failing to examine th e minor plaintiff
for scoliosis based on a statute that requires testing for the disease.
○ The plaintiff's scoliosis went undetected which necessitated a costly surgery for the plaintiff.
○ Could the statute, Education Law section 905(1) be enforced by a private right of action?
○ The court held that "A private right of action to enforce Education Law section 905(1) is inconsistent with the statute's leg islative
scheme and therefore cannot be fairly implied."
○ As to part 1 of the test, there was "no doubt that the infant plaintiff was a member of the class for whose particular benef it" the
statute was enacted. Thus first prong is satisfied.
○ Part 2 has two factors:
□ What was the Legislature's purpose when it enacted the statute?
□ Would a private right of action promote that purpose?
 The Legislature was seeking to promote public health and avoid costly hospitalization.
 A private right of action would promote the legislative purpose (the risk of liability for failure to screen will encourage
compliance with the statute)
○ Part 3 of the test is more difficult because public and private avenues of enforcement do not always harmonize with one anoth er.
 A private right of action would not be consistent with the statutory scheme because the statute already had an official
enforcement mechanism when it equipped the Commissioner of Education with authority to adopt rules and regulations to
enforce the statute.
 The Legislatures clearly contemplated administrative enforcement of the statute by giving the Commissioner power to withhold
public funding from noncompliant school districts.
○ The question became, could a private right of action be an addition to administrative enforcement while being consistent with the
legislative scheme?
 It would not because Education Law section 905(2) gave compelling evidence of the Legislature's intent to immunize the school
districts from any liability that might arise out of the scoliosis screening program.
 Previous cases provided persuasive evidence of the Legislature's desire to immunize school districts.

Policy Bases for Invoking no Duty: Defendant played role in creating risk but no duty exists
Strauss v. Belle Realty Co,
○ Consolidated Edison's power system failed leaving most of New York City in darkness for 25 hours
○ Plaintiff, an old man, fell on the darkened stairs of his apartments "common area"
○ Con Edison was contracted to Belle Realty to provide lighting in the common areas
○ The court held that Con Edison did not owe a duty to the plaintiff because liability for injuries in a buildings common areas should be
limited by contractual relationship
 "But while the absence of privity does not foreclose recognition of a duty, it is still the responsibility of courts, in fixing the orbit
of duty, 'to limit the legal consequences of wrongs to a controllable degree,' and to protect against crushing exposure to
liability."
 The central idea when assigning duty in these cases is to balance the defendant's duty to cover specifically foreseeable parties
with containing liability to manageable levels.
 If Con Edison is held liable in this case, this would "violate the court's responsibility to define an orbit of duty that places
controllable limits on liability."
 Separate Opinion: Preventing liability on Con Edison in the name of public policy seems backwards because essentially, the
more persons injured through a tort-feasor's gross negligence, the less the responsibility for injuries incurred.

• The court is not requiring privity to establish duty they say there must be something close to privity
• Although there is something close to privity between Strauss can Con Edison in the common areas, the court does not recognize a duty for

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• The court is not requiring privity to establish duty they say there must be something close to privity
• Although there is something close to privity between Strauss can Con Edison in the common areas, the court does not recognize a duty for
fear of crushing liability on Con Edison. (what if there were a million customers who wanted to sue for the negligence on the part of Con
Edison for the power failure. Where do you cross the line and enter crushing liability?

Reynolds v. Hicks
○ Steven, a minor, consumed alcohol at his aunt's wedding and later got in a car accident.
○ The third party that Steven crashed into sued the aunt and uncle for negligently serving alcohol to a minor.
○ The court held that social hosts who furnish alcohol to a minor do not owe a duty of care to third persons injured by the int oxicated
minor.
 Social hosts are ill-equipped to handle the responsibilities of their guests' alcohol consumption, unlike commercial vendors who
are in the business of serving and selling alcohol (better organization, more money).
 If liability was imposed on social hosts, the scope of their duties would be ill defined:
○ Is the host required to card persons at social and family gatherings?
○ Must the host hire a bartender to control and monitor the alcohol in the home so that a minor cannot obtain alcohol at a
party?
○ See top of page 185 for more
 The implications of social host liability would be wide sweeping and unpredictable because it would touch most of the adults in
the state on a frequent basis.
 The Washington statute does not protect third persons injured by an intoxicated minor but, rather, protects minors from their
own injuries as a result of their intoxication.

• The court establishes that a social host is not liable to third parties but that they are liable to 1st parties. (the minor could bring a cause of
action)
○ This seems counterintuitive because it allows the minor, who was drinking and driving, to recover and not an innocent third p arty.
• Although defendants sometimes create the risks of the plaintiff, the court tends to look at the implications and scope of imposing a duty on
that defendant. If the implications are that of crushing liability, unpredictability or if the defendant's duty would be ill-defined (meaning ok
now the defendant has a duty but the behavior they are supposed to take to meet this duty is puzzling) then court's tend not to impose a
duty.
• Most courts have struggled with type of host. States have pretty uniformly imposed liability on commercial hosts. States have been
reluctant to impose liability on social hosts.
• Arguments: Plaintiff believes that imposing civil liability on the social host will deter minors from driving drunk, defendant will argue that
criminal action is enough to deter and that over-deterrence is inefficient.

Negligent Entrustment
Vince v. Wilson
○ Plaintiff, a passenger in the car driven by defendant, was seriously injured when defendant, Wilson's grandnephew crashed car
○ The plaintiff (remember who is a third party) brought a negligent entrustment suit against Wilson who had provided the fundin g for
her grandnephew to purchase the vehicle.
○ The plaintiff also added defendants Ace Auto Sales which sold the vehicle to the driver and its president Gary Gardner who wa s the
salesman of the vehicle.
○ Evidence indicated that Wilson knew that the operator for whom she provided funding to purchase the vehicle had no driver's l icense,
had failed the driver's test several times, and also abused drugs and alcohol.
○ Evidence also showed that Wilson communicated to Ace, prior to the sale of the vehicle, that the driver had no license and fa iled the
driver's test several times.
○ The court held that there was sufficient evidence of negligent entrustment for the question to go to a jury in the case again st Wilson,
Ace, and the salesman.
 Because Wilson knew the operator for whom she provided funding to purchase the vehicle had no driver's license, had failed
the driver's test many times, and also abused drugs and alcohol, this evidence was sufficient to make out a prima facie case of
negligent entrustment to the jury.
• "The key factor is that 'the negligence entrustment theory requires showing that the entrustor know or should have known some reason
why entrusting the item to another was foolish or negligent.'"
• Now, just providing the funds for something, even if you never owned it, is enough for negligent entrustment.
• The court does draw a line. If you finance, or just give money to "a loser", that is not enough for negligent entrustment. The person must
specifically buy the instrumentality that caused the harm.
• Note:
○ An employer can be found independently negligent for hiring someone who has committed a tort.
• Liability of financing/cosigning: Courts generally do not impose liability on a defendant who finances or co-signs for someone who then
ends up causing an accident even if the defendant knew of problems. (Length of time after co-signing that the accident occurs may have
bearing on court's decision)
• Liability where instrumentality was not a car: Gun cases, one view: "one cannot be expected to owe a duty to the world at large to protect it
against the actions of third parties." Other view: "one who supplies chattels to another is not entitled to assume that it will be used
carefully if the supplier "knows or has reason to know that the other is likely to use it dangerously, as where the other belongs to a class
which is notoriously incompetent to use the chattel safely, or lacks the raining and experience necessary for such use."

The Duties of Landowners and Occupiers


Traditional View
• There are three broad classes of plaintiffs:
○ Trespassers
 All entrants to land are trespassers until the possessor of the land gives them permission to enter.
Possessor owes no duty of care

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 Possessor owes no duty of care
○ Licensees
 All persons who enter a premises with permission are licensees until the possessor has an interest in the visit such that the
visitor "has reason to believe that the premises have been made safe to receive him."
 The possessor owes a licensee the duty to make safe dangers of which the possessor is aware
○ Invitees
 Once the possessor gives the visitor reason to believe that the premises have been made safe for him, the entrant is an invitee
 The possessor owes invitees the duty to exercise reasonable care to protect them against both known dangers and those that
would be revealed by inspection
Status Duty Exceptions
Trespasser None, except 1. Known
1. No willful, wanton or intentional injuries 2. Frequent
2. No "traps" 3. Tolerated
• 4. Trapped
Licensee Above plus
Warn of or make safe dangers ACTUALLY known
Invitee Above plus
Reasonable inspection of property
• A person becomes an invitee if the landowner:
○ Extends an invitation to the public generally; or
○ The person brings some tangible benefit for the landowner
Carter v. Kinney
○ The Kinney's hosted a bible study at their home
○ It had snowed and Mr. Kinney shoveled the driveway. However, more ice formed overnight
○ Carter came early the next morning, slipped on the ice, and sued the Kinney's
○ The court held that Mr. Carter was a licensee because the Kinney's did not open their house to the public generally and becau se Mr.
Carter was not bringing some sort of tangible benefit that would make him an invitee.
○ Therefore, Mr. Kinney only had to make safe dangers actually known, and the ice that formed was an unknown danger.
• What about child trespassers?
○ The landowner can be liable for the injury to a child trespasser if the landowner had an "attractive nuisance".
○ An attractive nuisance must be attractive to children, children must not know the dangers of it or appreciate the dangers inv olved
with it.
Heins v. Webster County
○ The court abandons the traditional licensee-invitee status and instead implements a standard of reasonable care for all lawful visitors.
 The court does keep the trespasser status so basically you have two categories: trespassers, and everyone else.
○ Heins went to visit is daughter who is an employee at a hospital. He slipped and fell on snow when exiting the hospital's ma in
entrance
○ He sued the hospital and the court thought it was ridiculous to classify Heins as a licensee just because he came to visit hi s daughter
and not a patient and because he didn't bring a tangible benefit
○ Among the factors to be considered in evaluating whether a landowner or occupier has exercised reasonable care for the protec tion
of lawful visitors will be:
○ The foreseeability or possibility of harm
○ The purpose for which the entrant entered the premises
○ The time, manner, and circumstances under which the entrant entered the premises
○ The use to which the premises are put or are expected to be put
○ The reasonableness of the inspection, repair, or warning
○ The opportunity and ease of repair or correction or giving of the warning and
○ The burden on the land occupier and/or community in terms of inconvenience or cost in providing adequate protection
• Adopting the new rule places the focus where it should be, on the foreseeability of the injury, rather than on allowing the duty in a
particular case to be determined by the status of the person who enters upon the property.
• Another issue, liability of a landlord to tenant.
○ Landlord could be liable if landlord knew of a dangerous situation that the tenant did not know of.
○ Negligent repairs by the landlord brings about liability
○ The modern trend is that you can sue in contract and tort when a contract guarantees some sort of safety
• What about natural causes where something on your land triggers an injury off your land
○ First, the landowner owed no duty
○ Now courts are changing their mind and saying that landowners can be liable for injuries occuring off their property do to a natural
cause on their land.
• There was a heightened sense of duty with artificial conditions. A baseball flying off of your property and injuring someone.
• Courts have found that landlord's have a duty to protect tenants from criminal activity:
○ "his duty is to take those measures of protection which are within his power and capacity to take, and which can reasonably b e
expected to mitigate the risk of intruders assaulting and robbing tenants."

Duty Business Owners Have to Protect Customers from Third Party Attacks
• "The foreseeability of the crime risk on the defendant's property and the gravity of the risk determine the existence and the extent of the
defendant's duty." : this is basically PL…is an attack probable (P)…what is the magnitude of the loss (L)? However, courts also should look at
the burden on the defendant.
• Courts have determined foreseeability in many ways:
a. Specific Harm Rule- a landowner does not owe a duty to protect customers from the violent acts of third parties unless he is aware of

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• Courts have determined foreseeability in many ways:
a. Specific Harm Rule- a landowner does not owe a duty to protect customers from the violent acts of third parties unless he is aware of
specific imminent harm about to befall them
b. Prior Similar Incidents - a duty exists if there were prior incidents similar to the incident at hand.
i. The problem is what is a similar incident?
ii. Secondly, if similar incidents are established how many do there have to be to be enough to trigger duty?
c. Totality of Circumstances-Anything that could affect foreseeability will be taken into account here.
i. The court is essentially saying that this test takes into account PL in the hand formula. The court doesn't like this.
d. Balancing Test - Instead, the court uses this test which takes into account PL like tot. of circ. But also considers the burden on the
defendant.
Posecai v .Wal-Mart Stores
○ Plaintiff after shopping at Sam's club was robbed at gunpoint in the parking lot
○ The court adopted the balancing test because it takes into account the foreseeability of an attack by a third party (P and L) but also
considers the burden on the defendant.
○ The court held that Sam's did not owe a duty to the plaintiff because the burden on the defendant outweighed the foreseeabili ty of
an attack
 Given the large number of customer's that use Sam's parking lot, the previous robbery of only one customer in all those years
indicates a very low crime risk.
• However, "a landlord is not entitled to one free assault before the failure to take appropriate security measures subjects him or her to the
risk of civil liability."
• If a robber holds a customer and gunpoint and tells the clerk to give him money or the customer dies. Is the clerk liable for the customer's
injuries if they do not comply with the robber's demands?
○ The CA Supreme Court said there is a right to engage in passive resistance. The shopowner has no duty to comply with the dem ands
of a criminal even when someone else is at risk.
 Although this seems cruel, the court realized that if they allowed the clerk to be liable to the customer that was injured, this
would just encourage robbers to take "hostages" and make demands knowing with more certainty that the clerk will obey.
○ Say, the robber threatened the clerk with the gun and the clerk leaped over the counter and engaged in a struggle with the ro bber.
The gun goes off in the struggle and injures a third party. This is active resistance. Some courts have held that if the cl erk engaged in
active resistance, the clerk has a duty.

Intrafamily Duties
• Spouses were originally immune from actions against one another
• Now, spouses can sue each other
• Claims by children against parents for intentional harm are almost universally permitted. Parent-child injuries from negligently inflicted
harm is more troublesome.
Broadbent v. Broadbent
○ Defendant mother was watching her 2 and a half year old son swimming at the family residence when the phone rang.
○ She went inside to answer the phone and when she looked outside and could not see her son, she ran out and found him at the
bottom of the pool.
○ The boy was revived but suffered severe brain damage and lost his motor skills.
○ The father filed a negligence suit against the mother on behalf of their son.
○ the court abolished parent immunity and implemented the "reasonable parent test" in which a parent can be held liable if the
parent's conduct does not comport with that of a reasonable and prudent parent in a similar situation.
○ "In this case, the trier of fact may find that the mother did not act as a reasonable and prudent parent would have in the si tuation.
 Primary justifications for parent immunity:
○ Suing one's parents would disturb domestic tranquility
○ Suing one's parents would create a danger of fraud and collusion
○ Awarding damages to the child would deplete family resources
○ Awarding damages to the child could benefit the parent if the child predeceases the parent and the parent inherits the
child's damages; and
○ Suing one's parents would interfere with parental care, discipline, and control.
 The court rejects the justifications for parent immunity:
○ The injury to the child disrupts the family tranquility more than the lawsuit.
○ The danger of fraud is present in all lawsuits. We should not deny recovery to an entire class of litigants
because some litigants might try to deceive the judicial system.
○ A damage award for the child will not deplete the family's financial resources. These cases usually are not
brought if no insurance coverage is available. The opposite is actually true…a successful lawsuit when a child
is severely injured could ease the financial burden on the family.
○ The possibility that the parent might inherit the money recovered by the child is remote. This is a concern for
the probate courts and the laws of intestate succession, not tort law.
○ The justification for allowing children to sue their parents would undercut parental authority and discretion
has more appeal than the other rationales.
• Approaches to Parental Immunity
○ Goller: Retain parental immunity only where:
 The negligent act involves an exercise of parental authority over the child; or
 The act involves an exercise of ordinary parental discretion with respect to the provision of food, clothing, housing, medical and
dental services, and other care
○ California & Broadbent:
 Impose liability when defendant fails a test of the reasonable prudent parent in similar circumstances
○ New York: Refuse to recognize theory of negligent parental supervision, though recognize parental liability in other contexts (In New
York, Broadbent would not be a case.)

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York, Broadbent would not be a case.)
○ Restatement 2d: No family immunity based solely on that relationship, but no liability unless conduct is "palpably unreasonab le" or is
"otherwise privileged"
• The reasonable parent standard which sounds good in theory actually contains a lot of gray area.
• In some states, like New York, parents are still immune from negligent supervision actions. (some states parents are immune unless parent
was reckless or willful in their negligent supervision). In these instances, a child could not sue parent for negligent supervision and the
parent is also immune from a third-party.
• Courts have differed on harm to a fetus: some courts allow a child, after birth, to sue a third-party or the mother for harm sustained before
birth. Some court's have rejected this: (defendant drove negligent and hurt fetus…baby could not sue because mother owed no duty)
• Just a note: at one time charities were immune. This is not so today.
○ A lot of states have retained immunity for the officers of those charities. You cannot enforce personal liability on individ uals of charity
but you can on the charity itself.

Government Entity
• "Sovereign" immunity requires that the defendant be a "sovereign"
○ The state itself and the federal government are sovereigns
• "Governmental" immunity applies when the defendant is a sovereign or any other government body
○ A city has governmental immunity but not sovereign immunity. The state has sovereign immunity and governmental immunity.
• Why does tort liability effect public entities differently?
○ Governmental officials make many policy choices, balancing costs and benefits for public or political gain; and
○ Much of governmental activity is in the affirmative duty sphere: protecting the public from risk create by others.

Municipal and State Liability


Riss v. City of NY
○ Plaintiff was twice refused police protection from a previous boyfriend who had threatened her.
○ A thug hired by the boyfriend threw lye in plaintiff's face, leaving her permanently scarred, blind in one eye, and with litt le vision in
the other.
○ Plaintiff filed suit claiming that the municipality was liable for her injuries in its failure to provide special protection to a member of
the public who was repeatedly threatened with personal harm and eventually suffered dire personal injuries.
○ The court held that the municipality owed no duty to the plaintiff to protect her from her injuries
 If the court ruled in favor of the plaintiff this would be going against the fundamental principle of no affirmative duty to act.
There would be a slippery slope in that affirming duty in this case, the public would target the municipality for lack of protection
for every crime committed.
 The amount of protection that can be provided to the public is limited by the resources of the community and it is the
legislatures duty to decide how those resources are deployed.
• Cuffy Factors: No Immunity When "Special Relationship"
1. Assumption by the municipality through promises or action of an affirmative duty to act on behalf of the party who was injured;
2. Knowledge on the part of the municipality's agents that inaction could lead to harm;
3. Some form of direct contact between the municipality's agents and the injured party; AND
4. That party's justifiable reliance on the municipality's undertaking
• The solicitation of public help to find a wanted criminal creates a different situation than Riss. The court held sustained the plaintiff's claim
in the case where a person helped law enforcement catch a criminal and then was killed three weeks after his life was threatened.
Lauer v. City of NY
○ After the death of 3-year-old Andrew, a NY City Medical examiner performed an autopsy and concluded the death was a homicide
○ They began to investigate father. The medical examiner performed another autopsy and realized it was not a homicide but fail ed to
notify law enforcement.
○ The medical examiner's conduct was an act of ministerial negligence meaning he was negligent in adhering to a governing rule.
 A municipality is immune to an act of discretion, conduct involving the exercise of reasoned judgment, but is NOT immune to
ministerial negligence (that is why this case proceeded to a question of duty).
○ Plaintiff sued city for negligent infliction of emotional distress
○ The court held that the medical examiner (the city) owed no duty to the plaintiff
 "we have consistently refused to impose liability for a municipality in performing a public function absent "a duty to use due
care for the benefit of particular persons or classes of persons."
 The plaintiff cannot point to a duty owed to him by the Office of the Chief Medical Examiner so his negligence claim must fail.
 Additionally there is no special relationship between the Medical Examiner and the plaintiff.
○ He made no promises or assurances to plaintiff
○ Never undertook to act on plaintiff's behalf
○ Assumed no affirmative duty upon which plaintiff might have justifiably relied
○ Plaintiff alleges no personal contact with Medical Examiner, thus failing the "direct contact" requirement of the test
 Dissenter: "To immunize the kind of alleged misconduct described by the pleading of this case would reward the government
agents who hide the truth and seep wrongdoings under a rug of tort impunity. In such instances, truly responsible public
employees have little to no incentive to own up to wrongdoings, since their official information is usually their secret."
• To sustain liability against a municipality, the duty breached must be more than owed the public generally.
• "Violation of a statute resulting in injury gives rise to a tort action only if the intent of the statute is to protect an individual against an
invasion of property or personal interest."
• If you find duty here, there will be massive liability against the city
• Why in general would government have immunity?
○ Courts often grant immunity because they believe it is not their place to impose duties on governments. When you allow a sui t
against the government it presents a judicial incentive for the government to do something different to avoid liability which interferes
with legislature.

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with legislature.
• In sum, to sustain liability against a municipality, the duty breached must be more than owed to the public generally meaningthere must
be a special relationship between plaintiff and municipality that would indicate a duty. Governed by the Cuffy Factors above.
Friedman v. State of New York
○ In general if you owe a duty to everyone, you do not owe a duty to any specific individual. However there are exceptions:
 governmental body may be held liable when it does not perform a study or if its study of a traffic condition is plainly
inadequate or there is no reasonable basis for its traffic plan
 Once the State is made aware of a dangerous traffic condition it must undertake reasonable study thereof with an eye toward
alleviating the danger. Moreover, after the State implements a traffic plan it is under a continuing duty to review its plan in the
light of its actual operation.
 "once a decision has been reached to go forward with a plan intended to remedy a dangerous condition, liability may result
from a failure to effectuate the plan within a reasonable period of time."
○ Above are theories that support liability, what will not support:
○ If the city does an adequate study, a plaintiff cannot challenge the study with their own expert. As along as a reasonable study
is performed and action is taken, the city is not liable…..

• In 1946, the United States waived its general tort immunity.


○ 1346(b): The district courts have exclusive jurisdiction of civil actions on claims against the U.S. for money damages for in jury caused
by the negligent or wrongful act or omission of any federal government employee acting within the scope of his employment und er
circumstances where the U.S., if a private person, would be held liable in accordance with the law of the place where the act or
omission occurred.
 It is not enough for liability that a state or municipal entity would be liable for the negligence of a state or local inspector. (the
defendant is not of a "private person" entity)
 The U.S. could be liable if a private employer could be held liable in "like circumstances"
• The exception to 1346(b) is the "discretionary function" exception. (basically the government is immune if acting with "discretion"
○ this exception was designed to prevent the courts from "second guessing" the way that government officials choose to balance
economic, social, and political factors as they carry out their official duties
• The Supreme Court has established a two step test to determine whether an action is exempt from suit under the discretionary function
exemption:
a. Whether any "federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow." I f a specific
directive exists, then the employee had no "choice" and the only issue is whether the employee followed the directive. "Becau se no
choice is involved where a "specific prescription" exists, the discretionary function exception is not applicable."
b. The second test is whether the decisions that require choice are "susceptible to policy judgment" and involve an exercise of "political,
social, or economic judgment." "Only discretionary actions of greater significance - those grounded in "social, economic, or political
goals" - fall within the protection of the statute."
• Legal Constraints that eliminate choice:
○ Constitution
○ Statute
○ Administrative rule or order
○ Administrative practice or policy

Cope v. Scott
○ On a rainy evening in 1987, Cope was driving on a two -lane road through Rock Creek Park.
○ An opposing vehicle, driven by Scott, rounded a curve, slid into Cope's lane and hit Cope's car.
○ Cope alleged he suffered neck and back injuries.
○ He sued Scott and the Park Service alleging that the Service was negligent "in failing to appropriately and adequately mainta in the
roadway…and in failing to place and maintain appropriate and adequate warning signs along the road."
 Applying the second test, the government's determination as to the appropriate course of action would require balancing
factors such as the road's overall purpose, the allocation of funds among significant project demands, the safety of drivers and
other park visitors, and the inconvenience of repairs as compared to the risk of safety hazards. These balances are apparent
because the 1988 study placed maintenance on the section of the road in question in the middle of a priority list of work. "Such
decisions require the agency to establish priorities for the accomplishment of its policy objectives by balancing the objectives
sought to be obtained against such practical considerations as staffing and funding,"
 The Manual on Uniform Traffic control Devices offers guidance for the installation of signs and therefore the reliance of the Park
Service on the Manual involves the exercise of discretion.
 On the second test however, the discretion regarding where and what type of signs to post is not the kind of discretion
protected by the discretionary function exception. It is true that the placement of signs involves judgments of engineering and
aesthetic concerns but these judgments do not involve difficult policy decisions such as balancing the preservation of the
environment against the blight of excessive signs.

Non-Physical Harm
Emotional Harm
Sources of Emotional Distress:
• Fear of sustaining physical injury
○ Injury imminent
○ Injury distant (in time)
• Embarrassment over one's own physical injury
• Distress over physical injury to another

Outline Page 13
• Embarrassment over one's own physical injury
• Distress over physical injury to another
○ Past injury complete
○ Injury imminent or contemporaneous
○ Injury in distant future
○ Misperceived injury (erroneous notification of death)
• Distress over mishandling loved one's corpse
• Distress over property damage, job loss, or other economic harm
• Distress over injury to one's reputation (distinct from defamation)

• Originally courts would only recognize emotional harms due to physical injury from a physical impact. Reasons:
○ Whether someone actually suffers emotional distress is sometimes hard to prove
○ The courts feared trivial suits claiming emotional distress. The emotional harms may not be serious and secondly, they make be fake.

Injury imminent
Falzone v, Bush
○ Falzone claims that the defendant's negligently driven automobile came so close to her as to put her in fear for her safety a nd as a
direct result, she became ill and required medical attention.
○ The court found that she could recover:
 The court held that "where negligence causes fright from a reasonable fear of immediate personal injury, which fright is
adequately demonstrated to have resulted in substantial bodily injury or sickness, the injured person may recover if such bodily
injury or sickness would be regarded as proper elements of damage had they occurred as a consequence of direct physical
injury rather than fright."

• So the court said that she could recover even if there was no physical impact but the stipulation is that the emotional distress must have
caused some sort of physical injury. In this case she became ill and required medical attention.
• The court relies on a "zone of physical danger"
• Most jurisdiction fall under the recovery when physical impact, in danger zone, or emotional harm is foreseeable
• Suppose the plaintiff said she was scared to death from the incident but did not suffer any physical injury from it. Could she recover?
○ The court does not answer this question. You could make an argument either way.
○ There is a legitimate reason to limit recovery in cases where physical injury occurred because if no physical injury occurred , it would
be easier to "fake" the injury. For example a plaintiff that wants to recover for lost sleep, unable to do certain things ou t of fear….this
is hard to prove…she may be faking.
○ However, is it fair to those who have legitimate emotional distress?

Injury Distant (in time)


Metro-North Commuter RR v. Buckley
○ Buckley was a pipefitter for the Metro-North Railroad Co.
○ While removing insulation from pipes on a daily basis, he would often cover himself with insulation dust exposing him to asbe stos.
○ Buckley attended an "asbestos awareness" class and feared that he would develop cancer.
○ Periodic medical check-ups revealed no evidence of cancer or any other asbestos -related disease.
○ Buckley sued Metro-North under the FELA statute that permits a railroad worker to recover for an injury resulting from his employer's
negligence.
○ He sought damages for emotional distress and to cover the cost of future medical checkups.
 The court held that he could not recover for emotional distress until he manifested symptoms of a disease
○ The court relied on Gottshall:
 First, recovery for emotional distress requires immediate traumatic harm from a threatened physical contact
 Second, "Physical impact" does not encompass every form of "physical contact." It does not include a contact that
amounts to no more than an exposure to a substance that poses some future risk of disease and which contact
causes emotional distress only because the worker learns that he may become ill after a substantial period of time.
 Third, common law precedent has denied recovery to plaintiffs that are disease and symptom free.
 Fourth are policy issues. Judges and juries would have difficulty separating valid claims from invalid claims, allowing
recovery here would threaten "unlimited and unpredictable liability, and there would be a potential "flood" of
trivial claims.
• The court said that a lack of physical impact does not take away emotional distress but this case differs from others because there is no
threat of immediate traumatic injury.
• The court may allow recovery if plaintiff immediately contracted a disease that may lead to a worse disease in the future. In this case, the
plaintiff had no signs or symptoms of disease.
• So plaintiff may recover if physical injury results from emotional distress. In Falzone, physical injury occurred from emotional distress.
physical manifestations may allow for recovery. Plaintiff may also recover from a physical impact, however exposure to a substance that
may lead to disease in the future without any symptoms does not count as a physical impact.
• The problem here is what qualifies as physical manifestation? (heart attack is a physical manifestation, not eating for 20 days is a physical
manifestation but a large gray area still exists)

Distress over mishandling a loved one's corpse


(Negligent Infliction of Emotional Distress)
Gammon v. Osteopathic Hospital
○ Plaintiff's father died in defendant hospital and the plaintiff asked defendant funeral home to make the arrangements.
○ After finding an amputated limb in a bag that was supposed to contain the personal effects of plaintiff's father, the plainti ff began
having nightmares, his personality was affected and his relationship with his wife and children deteriorated.
○ Plaintiff brought suit for negligent infliction of severe emotional distress

Outline Page 14
Plaintiff brought suit for negligent infliction of severe emotional distress
 The court held that the man had a case for negligently inflicted severe emotional distress
○ "A jury could conclude that the hospital and mortician reasonably should have foreseen that members of Gammon's
family would be vulnerable to emotional shock at finding a severed leg in what was supposed to be the decedent's
personal effects."
• The court throws out the previous standards and creates a new standard of foreseeability
• Could it be foreseen that a reasonable person would suffer emotional distress under the circumstances? That is the new limitation which is
more broad than the previous requirements.
• The foreseeability rule does make sense in situations without risk of imminent physical injury. The zone of danger rule does not really apply
in cases like Gammon.

Distress over a physical injury to another


Portee v. Jaffee
○ Plaintiff and her 7 year old son, Guy, lived in an apartment owned by defendant Jaffee.
○ One afternoon, Guy became trapped in the building's elevator between its outer door and the wall of the elevator shaft.
○ The plaintiff "watched as her son moaned, cried out and flailed his arms" for 4 and a half hours while police tried to free h im.
○ The son died while still trapped
○ The mother filed suit against defendants for mental and emotional distress.
 The court held that the plaintiff could prove a case of negligent infliction of emotional distress if she proved the following 4
elements:
○ The death or serious physical injury of another caused by defendant's negligence
○ A marital or intimate familial relationship between plaintiff and the injured person
 "embodies the judgment that only the most profound emotional interests should receive vindication for their
negligent injury."
○ Observation of the death or injury at the scene of the accident and
 "as physical proximity between plaintiff and the scene of the accident becomes closer, the foreseeable likelihood
that plaintiff will suffer emotional distress from apprehending the physical harm of another increases"
○ Resulting severe emotional distress
 "a cause of action for emotional distress would require the perception of death or serious physical injury."
• Suppose the child died but the mother was grocery shopping and did not witness the accident:
○ A person would still suffer emotional distress so is this an arbitrary restriction?
 Its not an arbitrary restriction because allowing recovery in that situation would be too much…any time someone is seriously
injured or killed there will be a rippled effect, somewhere there will be plaintiffs arguing emotional distress from an accident.

Johnson v. Jamaica Hospital


○ Plaintiffs' daughter, Kawana, was born in defendant hospital.
○ After the mother was discharged, the child was kept for further treatment.
○ When the mother visited a week later, the child was missing and apparently had been abducted that day.
○ Plaintiff's brought suit for the emotional distress brought about by defendant's negligence.
 The court acknowledged that it is foreseeable that the parents would experience severe distress from an incident such as this,
but the foreseeability test isn't enough in this situation because the hospital owes no duty to the parents (who are third party
representatives).
○ Allowing recovery here would "invite open-ended liability for indirect emotional injury suffered by families in every
instance where the very young, or very elderly, or incapacitated persons experience negligent care or treatment."
 The court said that the hospital only has a duty to the child.
• The mother did have a contractual relationship with the hospital but generally, courts do not allow emotional distress actions for breaches
of contract
• Problems this causes:
○ So what would be the hospitals incentive to make sure babies are not abducted?
 The hospital owes a duty to the child but it is difficult to identify an injury the child suffered.
 The hospital is contractually obligated to parents when the mother goes to give birth. So there is a breach of contract…but
courts have generally refused to grant emotional damages in a contract action.
 So essentially this case eliminates any legal incentive for hospitals to ensure safety against abduction.
 The only real incentive here is a market incentive.
• What about emotional distress associated with property damage?
○ Most courts do not allow emotional harm from damage to property.
○ Some courts may allow recovery if house is damaged.
○ HI and CA have been more permissive for recovery in these situations
• In general, most courts treat pets as property and therefore would not allow emotional distress recovery for injury or death to pets
○ Several states, however, do and have allowed recovery
• Spouses can recover for negligent interference of consortium (loss of consortium)
• What about emotional distress from loss of consortium?
○ Courts generally do not allow a child to recover emotional damage for loss of consortium unless parent dies.
○ Courts have both allowed and rejected loss of consortium claims of parents for the injuries or death of their children

Economic Harm
Duty of Care: Accountants to Non-Clients
• Foreseeability test: If it is foreseeable that a nonclient would rely on the work (reports) of the accountant, then the accountant is liable
○ Unpopular
• Near-Privity: The accountant was must a near-privity relationship with the nonclient
Pretty restrictive but somewhat popular

Outline Page 15
• Near-Privity: The accountant was must a near-privity relationship with the nonclient
○ Pretty restrictive but somewhat popular
• Second Restatement: One who supplies false information for the guidance of others in their business transactions is subject to liability for
pecuniary loss caused to them by their justifiable reliance upon the information if he fails to exercise reasonable care or competence in
obtaining or communicating the information. This liability is limited to loss suffered:
□ By the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or kno ws that
the recipient intends to supply it; and
□ Through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a
substantially similar transaction.
□ The court interprets this as liability to third parties who can demonstrate "actual knowledge on the part of accountants of t he
limited group of potential third parties that will rely upon the report, as well as actual knowledge of the particular financ ial
transaction that such information is designed to influence.
 More Popular
Nycal Corp. v. KPMG Peat Marwich LLP
□ The defendant prepared an auditors' report of the 1990 financial statements of Gulf Resources & Chemical Corporation and the
report was included in Gulf's annual report.
□ Plaintiff entered into discussions with Gulf about buying a large block of Gulf shares and Gulf provided the plaintiff with a copy of the
1990 annual report.
□ Plaintiff then purchased about 35% of Gulf's outstanding shares and the corporation ended up filing for bankruptcy about two years
later.
□ The plaintiff filed a complaint against defendant seeking damages and costs incurred as a result of its alleged reliance on t he auditors'
report. Specifically that the report materially misrepresented the financial condition of Gulf.
 The court held that the accountant breached no duty owed to the non-client
○ The facts failed to show that the defendant knew or intended that the plaintiff, or any limited group of which the plaintiff
was a member, would rely on the audit report in connection with an investment in Gulf.
○ The defendant did not prepare the report for the plaintiff' s benefit.
○ The defendant did not intend to influence the transaction entered into by the plaintiff and Gulf nor knew that gulf
intended to influence the transaction by use of the audit report.
• In sum, an accountant cannot be liable to a nonclient when:
□ The accountant had no knowledge that a nonclient, or a limited potential group of nonclients, would rely on the accountants w ork;
or
□ The accountant had no knowledge of the transaction his report would influence.

532 Madison Ave. Gourmet Foods v. Finlandia Center


□ A section of wall of 540 Madison Ave. partially collapsed during a construction project and bricks, mortar and other material s fells
onto Madison Avenue at 55th Street which is a prime commercial location.
□ New York City officials closed blocks from 42nd to 57th Street as wells as side streets between Fifth and Park.
□ Gourmet Foods that was a half block south of 540 and 5th Ave. Chocolatiere, 2 blocks away, alleged on behalf of businesses be tween
42nd and 57 street that defendants' negligence led to loss of income. (also filed public nuisance claim not as important in t he opinion)
 The court held that a plaintiff cannot recover for purely economic loss. That the plaintiff must have suffered some property
damage or personal injury to recover in tort
• What is the purpose of the rule?
□ It is difficult to determine how much economic loss would be suffered and therefore is difficult to know how much precaution to take.
□ Unless you have some idea of what the magnitude of loss is you can't be expected to take the optimal amount of precaution.
□ I would imagine the administrative costs of figuring out what the loss should be would support this rule as well.
□ "the economic los rule marks the fundamental boundary between the law of contracts, which is designed to enforce expectations
created by agreement, and the law of torts, which is designed to protect citizens and their property by imposing a duty of re asonable
care on others. The economic loss rule was designed to prevent disproportionate liability and allow the parties to allocate risk by
contract."
• All you need however, is a personal injury or property damage to accompany economic damage and then you can recover for both.

Wrongful Birth & Wrongful Life


Wrongful Life Child Disabled
Wrongful Birth Parent(s) Disabled
Wrongful Conception/Pregnancy Parent(s) Usually Healthy
Relevant Variables
• Identity of the plaintiff - parents or child;
• Condition of the child - impaired or healthy;
• Kind of negligence alleged - failure to prevent pregnancy or failure to diagnose abnormality; and
• If applicable, reason parents sought to avoid pregnancy - economic or other.
Reasons to Avoid Pregnancy
• Economic burden
• Fear that child would be deformed ("eugenic")
• Concern for mother's health ("therapeutic")

• There are three general remedies as compensation for negligent procedures resulting in unwanted pregnancies:
□ Wrongful Conception, Healthy Baby: Limited -recovery rule
○ Medical expenses of ineffective sterilization procedure;
○ Medical and hospital costs of pregnancy
Expense of a subsequent sterilization procedure;

Outline Page 16
○ Expense of a subsequent sterilization procedure;
○ Lost wages;
○ Sometimes emotional distress arising our of unwanted pregnancy;
○ Sometimes for loss of consortium to spouse arising out of unwanted pregnancy; and
○ medical expenses for prenatal care, delivery, and postnatal care.
□ Full recovery with benefit offset rule
○ Plaintiff can recover all of the damages available under the limited recovery rule plus the cost of child rearing, but the court
must offset the benefits, either economic or emotional, derived by the parents from having a healthy child.
□ Full recovery without benefit offset rule
○ The plaintiff can recover all of the damages available under the limited recovery rule plus the cost of child rearing. There is no
offset from benefit.
• Unhealthy child: No Notice
○ If the defendant had neither actual nor constructive notice of the parent's reasonable expectation of a disabled child, then the
parents can recover the extraordinary medical and educational expenses, but not the costs of raising a normal child, offset b y
economic benefits from the government or other sources.
• Unhealthy child: Notice
○ If the defendant had actual or constructive notice of the parent's reasonable expectation of a disabled child, then the paren ts can
recover all costs.
Emerson v. Magendantz
○ After the birth of their first child, the Emersons decided for financial reasons to limit their family to one child
○ Diane Emerson underwent a surgical tubal ligation performed by defendant but became pregnant despite the operation.
○ The husband and wife sued alleging that the birth was caused by defendant's negligent performance of the tubal ligation proce dure.
○ The Emersons also allege that as a result of defendant's negligence, Diane suffered severe physical pain and required additio nal
invasive medical treatment, that they have suffered mental anguish and distress, that they have lost wages and earning capaci ty, that
they have incurred an obligation to expend monetary resources for the medical care and maintenance of child.
○ The court adopted the limited recovery rule for the plaintiffs
○ "Their decision to forgo the option of releasing the child for adoption constitutes most persuasive evidence that the
parents consider the benefit of retaining the child to outweigh the economic costs of child rearing."
○ No recovery would be allowable for emotional distress arising out of the birth of a healthy child.
• If the child is mentally or physically handicapped, the parents may recover for emotional distress
• Courts have generally not recognized a wrongful life action brought by a disabled child.
○ The idea here is, is it better to be non-existent than be alive with a handicap or disability?
○ Courts do not want to make that distinction.

CAUSATION
5. Actual (factual)
a. Did the defendant's conduct ACTUALLY cause the plaintiff's injury?
b. If so can proceed to question of proximate cause.
6. Proximate
a. In order to be a proximate cause, cause must be an actual cause. But not all actual causes are proximate.
b. Here, "the question is whether, granting that defendant's negligence has been an actual cause of the plaintiff's harm, the in jury
occurred under circumstances that allow the defendant to argue plausibly against being required to compensate the plaintiff f or that
harm."
Actual Causation (Cause in Fact)
Stubbs v. City of Rochester
○ The City of Rochester supplied Hemlock system water for drinking and Holly system water for firefighting.
○ Due to the city's negligence in May 1910, the systems became intermingled near the Brown Street Bridge causing contamination of
the Hemlock water.
○ The plaintiff contracted typhoid fever and attributed the illness to the negligence of the city.
i. The court held that the plaintiff provided sufficient evidence to reasonably infer the cause of the plaintiff's illness was due to
the defendant's negligence.
○ The plaintiff was employed in the immediate locality where the water was contaminated.
○ He drank the water daily
○ The consumption of contaminated water is a very frequent cause of typhoid fever.
○ Near 60 individuals who drank the water and had suffered from typhoid fever in that neighborhood appeared as
witnesses on behalf of plaintiff.
○ Medical testimonies were presented indicating his illness was caused by drinking contaminated water.
○ He did not leave the area during the summer of the water incident.
• A plaintiff only has to prove causation to a reasonable certainty. A plaintiff does not have to disprove all other theories of causation in
order to be sufficient.
• Suppose a reservoir kept their levies in a negligent fashion but then a rainstorm of epic proportion came through and floodedthe
reservoir and would have caused flooding regardless of negligence.
○ They would not be liable because absent negligence, the same harm would have occurred.
• Two components of Actual Causation:
○ But For component
○ Causal link component
 It must be the case that before anything takes place, engaging in negligence increases the probability that an action takes
place.

Outline Page 17
 We need to prove that the happening of A increases the probability that B happened.
• If one is missing, you don't have actual cause.

• Causation and the Hand Formula:


○ B<PL ---> Negligence
○ P = Pn-Pc Pn is probability with negligence, Pc is probability with due care
○ B<(Pn-Pc)L ----> Liable (1)
○ B<PnL-PcL -----> Liable (2)

Where: Defendant Liable For:


Pn=Pc Zero
Pn>.50>Pc L
.50>Pn>Pc (normally enhanced risk) (Pn-Pc)L
or This is called proportionate recovery
Pn>Pc> (or equal to) .50 (normally lost opportunity)
 The example where the negligent speeding driver's car hit by a falling tree:
□ The probability of the tree falling is the same whether there was negligent or not so that would fall under Pn=Pc
• Enhanced Risk: Alternative Approaches (Probabilistic recovery for harm in the future)
○ Permit proportionate recovery at the time of exposure, but before actual harm, if negligent exposure increases the risk of th e actual
harm.
○ Permit full recovery before onset of condition, but only if the condition is likely to occur (Pn>.5)
 Courts would do this because if they wait until injury actually occurs, it may be a number of years later where evidence has
disappeared and it is more difficult for both parties to prove their sides. So they would allow recovery before injury
materializes.
○ Deny all recovery for the loss itself unless and until it materializes.

Zuchowicz v. United States


○ Plaintiff was prescribed double the maximum dosage of a drug
○ Plaintiff was later diagnosed with PPH, a fatal disease
○ Plaintiff ultimately died
○ Husband sued and alleged that doctors had negligently instructed his wife to take the overdoses which led to PPH and her deat h
○ Doctors admitted negligence but challenged causation
○ Plaintiff offered two expert testimonies:
○ Dr. Richard Matthay testified that the progression and timing of plaintiff's disease in relation to her overdose supported a
finding of drug-induced PPH. He also ruled out all previously known drug-related causes of PPH.
○ Dr. Tackett testified that hormonal changes due to the overdose of PPH likely caused a dysfunction of the endothelium leading
to PPH.
○ The court concluded that the expert testimony satisfied a but for cause and the causal link necessary to show actual causati on.
• "if a negligent act was deemed wrongful because that act increased the chances that a particular type of accident would occur, and a
mishap of that very sort did happen, this was enough to support a finding by the trier of fact that the negligent behavior caused the harm."
• Side note:
○ Four guiding factors presented by the Supreme Court in order to make a preliminary assessment of expert testimony:
○ Whether the theory can be (and has been) tested according to the scientific method;
○ Whether the theory or technique has been subjected to peer review and publication;
○ In the case of a particular scientific technique, the known or potential rate of error; and
○ Whether the theory is generally accepted.
• The Zuchowicz court used the "substantial factor" test. Before the overdose could be shown to be a substantial factor, but-for causation is
required. However, with multiple causes, a substantial factor test has been employed and but-for abandoned because but-for runs into
problems with multiple causes.

Lost Opportunity
Lost Opportunity: Proportionate Recovery
• Suppose
○ Pn=1
○ Pc=.80
○ Recovery: (Pn-Pc)L=0.2L
• Lost Opportunity: Alternative approaches
○ Traditional: Allow full recovery if and only if there is more than a 50% probability that plaintiff would have avoided harm a bsent
defendant's negligence (if Pn>.5>Pc, plaintiff may recover L)
○ Relaxed Causation: Allow full recovery for physical harms suffered if the defendant's negligence increased the risk of such h arm
○ Proportional: if defendant's negligence increased the risk of loss, but the probability of loss given due care is greater tha n 50% (Pc>.5),
allow recovery in proportion to the increased probability of the harm, or in other words, the extent of the lost opportunity.
• Before a plaintiff can get a "lost chance" award, the plaintiff must suffer death or debilitating injury.
• "Evidence of the physical progression of the patient's disease during a negligent delay in diagnosis or treatment may be sufficient to
establish that the plaintiff was "injured" by the delay."
Alberts v. Schultz
○ On July 14, 1992, Dee Alberts went to Dr. Schultz with a condition known as "rest pain" in which his right leg hurt in the ab sence of
any activity.
Dr. Schultz did not order an arteriogram and he did not conduct any other tests.

Outline Page 18
○ Dr. Schultz did not order an arteriogram and he did not conduct any other tests.
○ Mr. Alberts' requested referral to Dr. Reddy did not occur until July 27th where upon seeing Mr. Albert, Dr. Reddy immediate ly sent
Mr. Alberts to the hospital and ordered an arteriogram.
○ Several procedures were then unsuccessfully performed and on July 28th, bypass surgery was attempted but failed and the leg w as
then amputated.
○ Plaintiff sued doctors for lost opportunity to save his leg and offered expert testimony:
i. The Alberts presented expert testimony of Dr. Hutton:
a. He said that the probability that Mr. Alberts' leg could have been saved decreased significantly because of the inaction of
both physicians.
b. However, Dr. Hutton could not pinpoint a time when earlier intervention would have changed the outcome.
○ The court held that ,"The Alberts through their expert, were unable to prove to a reasonable medical probability that the phy sicians'
alleged negligence proximately caused the lost chance to avoid the amputation…"
○ The Alberts cannot show, to a reasonable degree of medical probability that timely and proper medical intervention would have
saved Dee's leg.
○ "The Alberts cannot demonstrate that there was a window of time during which measures could have been taken to foreclose
the need to amputate Dee's leg."
 There was no testimony as to what should have been done
 and when Dr. Hutton testified that bypass surgery would have had a strong chance of being successful, that was under
the stipulation that Dee's leg exhibit "a good saphenous vein" but no evidence could be provided as to any suitable veins
in Dee's leg because of incomplete medical records.
• The problem with providing the traditional but-for cause does not work here. The plaintiff cannot prove that but for the negligence he
would have kept his leg.
• Therefore, some courts have adopted a proportionate recovery for lost opportunity.
• However this court still does not allow proportionate recovery because the plaintiff could not prove that the probability of loss with
defendant's negligence increased the risk of loss.
Some Limitations on Lost Chance proportionate Recovery
• Opportunity lost must be "substantial"
○ For example if Pn is 1 and Pc is .99, this is not a large enough increase in risk to allow recovery.
• Loss suffered must be severe

Multiple Defendants
Multiple Defendants: Common-Law Doctrines
• Joint and several liability: Two (or more) defendants may be sued together or separately. Plaintiff may recover the full amount of damages
against either one - or if sued together in any proportion he chooses.
○ But total recovery cannot exceed amount of judgment
• No contribution: Multiple defendants found liable for an injury to plaintiff have no right to force each other to share judgment.
• Indemnity: In some cases, a defendant from whom plaintiff has obtained payment of a judgment has the right to obtain full reimbursement
from some other tortfeasor (e.g. respondeat superior)

Kinds of Joint Torts


• Simultaneous: victim suffers a single or indivisible injury as result of tortious activity of two or more other persons.
○ The injury may be caused:
 By the tortfeasors acting in concert; or
 If an indivisible ( don't know who causes injury) injury results, by the tortfeasors acting independently.
○ All tortfeasors are jointly and severally liable
• Successive: One tortfeasor aggravates an injury inflicted by the other.
○ If the first tortfeasor had used due care the entire injury to the plaintiff would have been avoided, whereas if only the sec ond had
used due care, only the incremental damage would have been avoided.
○ Rule:
 Second tortfeasor is liable only for the aggravation (assuming he can prove what the aggravation was, if he can't prove that then
he is liable for everything)
 First tortfeasor is always liable for the initial injury, and he will also be jointly and severally liable for the aggravation if the
possibility of negligent aggravation by another was reasonably foreseeable.
• R3, "a defendant who is negligent because of a failure to protect the plaintiff from the specific risk of an intentional tort is jointly and
severally liable for the intentional tortfeasor's share of fault."
• Fault may be assigned to non-parties so long as the non-party is identified, and the defendant seeking to do so provides adequate notice to
the other parties. The defendant bears the burden of proof of the non-party's liability.

Recent changes:
• Contribution often allowed
○ So if plaintiff decides it is easier to recover everything from defendant 1 even though defendant 2 is just as responsible, t his would
allow defendant 1 to then sue defendant 2 to get half the payment back.
• Joint and several liability abolished in some circumstance
○ And replaced by several liability where defendants are only liable for the damage they have caused.

Summers v. Tice
○ Plaintiff and defendants Tice and Simonson were hunting quail when both defendants fired in plaintiff's direction.
○ One shot struck the plaintiff in the eye and another his lip.
○ Both defendants were using the same gauge shotgun and same size pellets.
○ Plaintiff filed suit claiming defendants negligence led to his injuries.

Outline Page 19
Plaintiff filed suit claiming defendants negligence led to his injuries.
○ Tice argued that there was evidence to show that the shot which struck plaintiff came from Simonson's gun because of admissio ns
allegedly made by him to third persons and no evidence that they came form his gun.
 The court held that the defendants were jointly liable for the plaintiff's injuries.
○ When two or more defendants are negligent and it cannot be determined who actually caused the injury, it would be
unfair to the plaintiff to exonerate all defendants of liability.
○ Therefore, each defendant has the burden of proof to absolve himself of liability.
○ Moreover, defendants are in a far better position to offer evidence to determine which one caused the injury.
○ Because neither defendant could prove the shot came from the others gun, both defendants were held jointly liable.
• Suppose the hunters had shot at a quail and one shot hit the plaintiff and it can be identified whose gun it came from. They are both jointly
liable because they were acting in concert.
• Holding the defendants jointly and severally liable in this situation allows the plaintiff to recover for the wrong done to him and requires a
defendant to prove his innocence since defendants will probably have more information about the accident.
• It also rests on the notion that because there are typically a small number of defendants, the likelihood that any one of them injured the
plaintiff is relatively high.
Hymowitz v. Eli Lilly & Co.
○ Plaintiffs allege that they were injured by the drug DES ingested by their mothers during pregnancy.
○ The DES manufacturers were sued and there were nearly 500 similar actions pending in New York at the time.
○ The plaintiffs main barrier was that it was impossible to identify the manufacturer of the DES that caused injury, which is g enerally
required in products liability actions.
 The court noted that alternative liability (like in summers v. tice) was not appropriate because there were many more
defendant so the probability an individual defendant was liable was much smaller. Also, many years elapsed between ingestion
and injury so the defendants did not have more information than the plaintiffs.
 The court also noted that a concerted action did not apply because the defendants did not have a common plan to commit a
tort.
 Market Share Liability:
○ Majority
 In DES cases, where plaintiff cannot identify the manufacturer who sold the drug that ingested by her mother,
manufacturers who sold the drug for pregnancy use can be held liable for damages based upon:
□ Their shares of the national market
□ In sales for pregancy use
 Liability is several only
○ Dissent
 Impose (1) joint and several liability on manufacturers, but (2) allow each to exculpate himself by disproving
causation
 For those who could not exculpate themselves:
□ Impose joint and several liability; but
□ Allow contribution based on national market share
 So if one defendant ended up paying entire recovery, that defendant could go after another defendant
for whatever percentage of the market that defendant had.

• The essential difference between the majority and the dissent is that the plaintiff can recover full amount in the dissents view. Also the
majority's view does not allow a defendant to escape liability because the damage is for the risk to the public at large (unless the defendant
can show it never marketed the drug for pregnancy purposes)
• Under the majority's view, if a defendant who had 30% of the market no longer exists, the plaintiff cannot recover for that 30%.
• The dissents view is more generous to the plaintiff.

Proximate Cause
Does event, condition, etc. break
The chain of legal causation
Plaintiff's tortious act ------------------------------> Defendant's injury
1. Preexisting Condition (the plaintiff's own condition)
2. Third-party Act
3. Plaintiff's act
4. Act of God
 The key question is do these causes break the chain of legal cause so that the defendant is not
liable.
 Remember any proximate cause must be an actual cause but an actual
Unexpected Harm
Benn v. Thomas
○ Plaintiff's decedent, Benn, who had a history of coronary disease, died of a heart attack six days after suffering a bruised chest and
fractured ankle in a car accident caused by defendant's negligence.
○ Benn's executor sued defendant for Benn's injuries and his death.
○ Plaintiff provided a medical expert who testified in his view that the accident was the cause of Benn's death.
○ The trial judge refused to instruct the jury on the "eggshell plaintiff" rule, which requires the defendant to take the plain tiff as he finds
him, even if that means that the defendant must compensate the plaintiff for harm an ordinary person would not have suffered.
 The court held that the trial judge should have instructed the jury on the eggshell plaintiff rule which holds the defendant liable
for all of the injuries sustained to the plaintiff even if the injuries were worse than an ordinary person. (take the plaintiff as they
come)
• The eggshell plaintiff rule is applicable once the plaintiff shows that the defendant caused some injury to the plaintiff, which the plaintiff has
done. ("Once the plaintiff established that the defendant caused some injury to the plaintiff, the rule imposes liability for the full extent of

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done. ("Once the plaintiff established that the defendant caused some injury to the plaintiff, the rule imposes liability for the full extent of
those injuries, not merely those that were foreseeable to the defendant.")
Possible justifications of "Egg Shell skull" Rule
a. Insufficient incentive for tortfeasors to take care
b. Excessive incentive for tort victims to take care
c. High administrative costs of permitting recovery for no more than normal injury
• Emotional distress: when plaintiffs suffer greater damages than those that were foreseeable because of preexisting "physical or mental
conditions," the plaintiff may recover for all such harm.
Polemis
○ The defendant's negligent conduct on a ship caused a wooden board to fall into a hold.
○ The board came in contact with a substance which created a spark and eventually led to the destruction of the ship by fire.
○ The owners of the ship sought to recover damages from the defendants who chartered the ship based on a contract of charter wh ich
would hold the charterers responsible for damage caused by fire.
 Court held that it does not matter if the defendant can foresee damages that are caused that the defendant is still liable for all
damages as long as the damages were a direct consequence of defendant's actions.
Wagon Mound
○ Plaintiffs were refitting a ship in their wharf.
○ Meanwhile, in a nearby wharf, a ship chartered by defendants was taking on bunkering oil.
○ A large quantity of oil spilled into the bay and some of it concentrated near plaintiffs' property.
○ The oil ended up catching fire causing extensive damage to the plaintiffs' wharf and equipment.
○ Plaintiff sued for damages.
 the court said that it is unreasonable for a defendant to be held liable for extensive unforeseen damages when the negligence
only resulted in trivial foreseeable damage
 Basically that defendant only liable for foreseeable damages.
Suppose negligence would cause foreseeable damage of $10,000 from plank injury (Polemis) or cloggage (Wagon Mound):

Actual Damage Polemis Wagon Mound


$50,000 Fire Allow Disallow
$5,000 Fire Allow Disallow
$50,000 (plank hits someone on head) Allow ?

Categories of Unforeseeable Loss


• Unexpected extent of harm
• Unexpected kind of harm
• Unexpected manner of harm
• Unexpected victim

The question is if there is a uniform way U.S. courts deal with this.
• Doesn't seem to be…Wagon Mound seems to go against eggshell plaintiff. For instance, was it foreseeable that the man would die of a
heart attack 6 days after the car accident….probably not. Yet the defendant can be liable for ALL of the plaintiffs injuries if it is found to be
connected.
Superseding Causes
Doe v. Manheimer
○ The plaintiff was raped by an unidentified assailant on property owned by the defendant.
○ Overgrown sumac bushes and tall grass on the defendant's property shielded the area where the crime occurred.
○ Plaintiff's expert stated that the shielded area served as an inducement for crime.
○ Plaintiff brought an action against the property owner for personal injuries claiming that the defendant failed to remove the
overgrown vegetation when he knew or should have known, due to the dangerous neighborhood, that third persons might use the
area for crimes against pedestrians.
 The court held that the harm the plaintiff suffered cannot reasonably be understood as within the scope of the risk created
by the defendant's conduct.
 The court did not feel the landowner should reasonably foresee that a condition on his property such as overgrown vegetation
might provide a substantial incentive for the commission of a violent criminal assault between strangers.
 The harm suffered by the plaintiff was not of the same general type that allegedly made the defendant negligent. If the
overgrown vegetation would have caused physical injury, then the harm suffered would be of the same type that allegedly
made the defendant negligent.
• Plaintiff argues that absent the overgrowth either the rape would not have occurred at all or it would not have lasted as long.
• The court rules that the defendant's conduct was not the proximate cause of the attack.
Third-Party Criminal conduct
• Criminal conduct within the "scope of risk" defining the defendant's duty of due care: Defendant can be liable. (E.g., Hines)
• Criminal conduct not within the "scope of risk": Defendant cannot be liable (no proximate cause, or no breach of duty) (E.g., Doe, Phan Son
Van)
• Restatement (Second) of Torts:
 "a negligent defendant, whose conduct creates or increases the risk of a particular harm and is a substantial factor in causi ng that
harm, is not relieved from liability by the intervention of another person, except where the harm is intentionally caused by the third
person and is not within the scope of the risk created by the defendant's conduct."
• The question to ask when considering proximate cause is:
○ "whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's negligence ."

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"whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's negligence ."

Unexpected Harm
Palsgraf v. Long Island Railroad Co.
○ Plaintiff was standing on a platform of defendant's railroad after buying a ticket.
○ A train stopped at the station and two men ran forward to catch it.
○ The second man, who was carrying a package, seemed unsteady when jumping aboard the car so a security guard tried to help by
pushing him from behind.
○ In the process, the man dropped his package containing fireworks, and a subsequent explosion injured the plaintiff many feet away.
○ The plaintiff sued the railroad company for negligence.
 The court held that the railroad company owed no duty to the plaintiff but only had a duty to the passenger whose property
was destroyed.
 "The risk reasonably to be perceived defined the duty to be obeyed, and risk imports relation; it is risk to another or to others
within the range of apprehension.
 It would not be foreseeable that plaintiff would be injured by the guards negligence.
○ A dissenter said this case was all about causation and that the defendant's negligence was a proximate cause of the
plaintiff's injury.
Kinsman
• Two large chunks of ice floating down river collected a ship whose crew acted inadequately to the situation, a second ship was collected
because it was improperly moored to a dock, and finally city was negligent by not raising bridge and the river was damned at the bridge and
property damage was sustained due to flooding. Not ALL of these damages are foreseeable for the defendant owners of the ships,
however:
○ "we see no reason why an actor engaging in conduct which entails a large risk of small damage and a small risk of other and g reater
damage, of the same general sort, from the same forces, and to the same class of persons, should be relieved of responsibilit y for the
latter simply because the chance of its occurrence, if viewed alone, may not have been large enough to require the exercise o f due
care."
• In the Kinsman cases, the courts state that although the defendant may not have foreseen the extent of the damage, the damage was of a
kind that could be expected.

DEFENSES
The Plaintiff's Fault
Contributory Negligence ("only a handful of states adhere to traditional contributory negligence")

• Simple negligence
○ x<x * ---> injurer liable
○ x> or equal to x * ---> injurer not liable
• Negligence with contributory negligence
○ x<x * and y> AND equal to y * --> injurer liable
○ x> or equal to x * OR y<y* ---> injurer not liable

Where : x * is legal standard of precaution for injurer


y* is legal standard of precaution for victim
x is actual level of precaution taken by injurer
y is actual level of precaution taken by victim

Contributory Negligence and Assorted Issues


• Negligent rescuers
○ Courts have said that they would relax the standard of negligence when applied to rescuers
• Statutes for protection of victim
○ Courts have said this was an exception to contributory negligence as well
• Reckless injurer, negligent victim
○ Contributory negligence was not a defense when the defendant was more than negligent (reckless). Even if victim was negligen t
• Last clear chance
○ The plaintiffs negligence would not be a defense if the defendant had the last clear chance to avoid the plaintiff's injury.
• Reluctance to impute negligence to plaintiff
○ For example, if a child was negligent and was killed, would the child's negligence be imputed to the mother in her emotional distress
case?
○ The courts were reluctant to impute negligence from one party to another claim.
• Jury "nullification"
○ Juries would sometime nullify contributory negligence even though they were instructed by the judge to prevent recovery if pl aintiff
was at all negligent.

Comparative Negligence (Some states use "Pure" but most use "Greater Fault Bar")
• x<x * and y≥y* ---> injurer 100% liable
• x≥x * ---> victim 100% liable

Otherwise…

Forms of Comparative Negligence

Outline Page 22
Forms of Comparative Negligence
• Pure: Plaintiff's damages reduced by percentage responsibility
○ Plaintiff 90% negligent can recover 10% of damages
• Slight-gross: Plaintiff can recover if defendant's negligence is gross and plaintiff's negligence is relatively slight; damages reduced in
proportion to plaintiff's negligence
○ Plaintiff 45% negligent cannot recover
○ Plaintiff 10% negligent can recover 90% of damages
• Equal fault bar ("Wisconsin" rule): Plaintiff can recover if and only if his negligence was not as great as defendant's negligence; Plaintiff's
damages reduced proportionately
○ Plaintiff 49% negligent can recover 51% of damages
○ Plaintiff 50% negligent cannot recover
• Greater fault bar: plaintiff can recover if and only if his negligence was no greater than defendant's negligence
○ Plaintiff 49% negligent can recover 51% damages
○ Plaintiff 50% negligent can recover 50% of damages
○ Plaintiff 51% negligent cannot recover

• How often will a finder of fact attribute equal negligence to both plaintiff and defendant?
○ Allocating fault equally is a fairly easy thing for a jury to do
○ Therefore, there is large impact between the usage of equal fault bar, and greater fault bar.

Pure Slight/Gross Equal Fault Bar Greater Fault Bar


P 90% Recovery No Recovery No Recovery No Recovery
D 10%
P 51% Recovery No Recovery No Recovery No Recovery
D 49%
P 50% Recovery No Recovery No Recovery Recovery
D 50%
P 49% Recovery No Recovery Recovery Recovery
D 51%
P 10% Recovery Recovery Recovery Recovery
D 90%

Comparing Fault
• Comparative negligence can be measured as a ratio: Relative difference between parties' actual levels of precaution and legal standards of
precaution
• (x * - x)/(y*-y)

Example
• Two cars collide in area with speed limit of 30 mph. P's car is damaged. P going 35 mph, D 40 mph.
○ (x*-x)/(y*-y)
○ (30-40)/(30-35) = 10/5=2/1
• D 66.7% responsible and would bear $2 in damages for every $1 borne by P, who was 33.3 % responsible.

See pages 447-459 for examples, the book goes over all of these scenarios
Multiple Defendants: Common-Law Doctrines
• Joint and several liability: Two(or more) Ds may be sued together or separately. P may recover the full amount of damages against either
one - or if sued together in any proportion he chooses.
○ But total recovery cannot exceed amount of judgment
• No contribution: multiple defendants found liable for an injury to plaintiff have no right to force each other to share judgment.

Uniform Comparative Fault Act: No state has adopted it but statutes that states have adopted take variety of pieces of it.
• Does the Act adopt comparative negligence? Yes
• The Act adopts a pure form of comparative negligence. So plaintiff will recover proportionately regardless of how great of fault plaintiff
contributed.

Statutory Revisions
• Uniform Act: Joint and several liability; right of contribution based on relative fault
• Several liability only (Ds only liable for their share)
○ A problem arises here: what if a D is insoluble? P will just not be able to recover damages from that D.
• Joint and Several liability, contribution on equal share basis
○ Suppose 3 defendants D: 40%, D: 20%, D:10%...under this approach, each D would be liable for one third of the judgment in
contribution.
• Joint and several liability above a fault threshold; several liability only below threshold

Aggregation Insolvency (D3) Set-Off Settlement

Outline Page 23
Aggregation Insolvency (D3) Set-Off Settlement
I II
P 30% 40% 40% 40% ($40K) 0% ($50K)
D1 40% 30% 30% 30% 50%
D2 10% 10% 10% 10%($25K) 50%
D3 20% 20% 20% 20%

For I, if there is no aggregation, Plaintiff cannot recover from D2 or D3 because P is more negligent
P can recover against D1, and if liability is joint and several, P can recover 70%. If there is contribution, D1 can seek repayment from D2 and
D3.

F or II, if there is no aggregation, P cannot recover because P is more at fault than all three defendants separately. If there is aggregation, P
can recover because Ds fault are added together, joint and several liability with aggregation would allow 60% recovery from any defendant.

In the Set-Off, suppose there is a car accident and damage to plaintiff's car and defendant's car are in the table above. Should one damage
set-off the other? The Uniform Act says there are no set-offs unless parties agree.

Majority approach keeps joint and several liability, but removes contribution. The insolvent defendant's share is spread among the solvent
Ds in proportion to their relevant fault. So the amount that would have been borne by D3 in the above table would be distributed
proportionally by fault to D1 and D2.

If Ds were severally liable, the plaintiff bears the loss associated with the insolvent D. This is the minority approach (plaintiff bears all of the
loss of that D)

The Uniform Act says that amount of the insolvent defendant will get distributed to all of the parties in the proportion of fault. So from the
above table, D3 is insolvent and plaintiff would bear half the loss and the other half would get distributed to D1 and D2 according to their
fault.

If one party settles, can that party seek contribution from another liable party for a share of the settlement?
○ Under the Uniform Act, D1 can get contribution from D2 for part of that settlement if that would extinguish D2's liability. The
contribution must also be reasonable.
○ So the two rules:
 Must distinguish liability on the part of the non settling party
 Contribution must be reasonable
○ Say the case proceeds, can the parties held liable seek contribution from the settling party?
 No, The non-settling Ds cannot get any contribution from a settling defendant. If this was allowed, this would deter settling.
○ What can the plaintiff get from the non-settling D?
 The plaintiff can only recover from the non-settling defendants the total amount minus the settling defendant's equitable share.
So if the loss was 50,000 and D1 and D2 are both 50% liable. If D1 settles for 10,000 P can still only get 25,000 from D2.

Under the Protanto rule, the P could try to get 40,000 from D2.

Fritts v. McKinne
○ Plaintiff's decedent was drinking and driving and suffered serious injuries when his vehicle crashed
○ During a medical procedure to repair his injuries, a complication led to the death of plaintiff's decedent
○ Plaintiff's decedent filed a medical malpractice claim
○ Defendant used a comparative negligence defense arguing that decedent's injuries were due to his negligence from driving drun k
 The court held that "a physician simply may not avoid liability for negligent treatment by asserting that the patient's injuries
were originally caused by the patient's own negligence."
 However, plaintiff's drug and alcohol abuse is relevant to damages (life expectancy for loss of future earnings)
• "There are limited circumstances under which reasonableness of patient conduct can be an appropriate consideration in medical negligence
cases":
 Evidence of a patient's failure to reveal medical history
 Patient who furnishes false information about his condition
 Failure to follow a physician's advice and instructions, or delay or failure to seek further recommended medical attention
• Avoidable consequences:
○ If the plaintiff had taken some action, the injury would not have been avoided but it would have been reduced.
○ This is a valid doctrine.
○ The clearest form of avoidable consequences issue involved the plaintiff's failure to obtain medical attention or to follow m edical
advice.
 "if the proposed treatment could result in an aggravation of the existing condition or the development of an additional
condition of ill health, or if the prospect for improved health is slight, then there should be no duty to undergo the treatment. If
the risk is clearly remote, the exception should not apply. But the risk need not be significant or even probable in order to
rigger the exception."
○ Example: a seat belt. The accident would still have occurred and injury would probably have resulted, but it would have been less
severe so damages should be reduced.

Assumption of Risk
Express Agreements:

Outline Page 24
Express Agreements:
○ Express Agreements (a waiver of liability)
 An agreement that plaintiff will assume any loss that occurs.
○ Why should an express agreement be enforced?
 If parties agree, why should it not be enforced….
○ But the idea of escaping liability for one's own negligence is not always favorable
Dalury v. S-K-I, Ltd
○ While skiing at defendants' resort, plaintiff was badly hurt when he collided with a metal pole that was part of the ski lift line.
○ Prior to skiing, plaintiff purchased a season pass and signed an exculpatory agreement to release the ski resort from any lia bility in the
event of an accident.
○ Plaintiff alleges that the ski resorts negligence led to the accident and that the release from liability agreement was "ambi guous as to
whose liability was waived and that it is unenforceable as a matter of because it violates public policy.
 The court held that public policy demands that the disclaimer be voided
 The court held that the ski resort had the expertise and opportunity to foresee and control hazards, and to guard against the
negligence of their agents and employees and therefore the exculpatory agreement violates the public policy underlying
business invitee law.
 "If defendants were permitted to obtain broad waivers of their liability, an important incentive for ski areas to manage risk
would be removed, with the public bearing the cost of the resulting injuries. It is illogical, in these circumstances, to undermine
the public policy underlying business invitee law and allow skiers to bear risks they have no ability or right to control."
• Although the skier assumes the risks that comes with skiing, this does not mean that the ski resort should be immune from liability of its
own negligence
• The disclaimer does not give the ski resort any incentive to take due care, other than for marketing purposes
• If, on the flip side, the resort would be held liable for ALL injuries:
○ The price to consumers would increase dramatically in order for resort to cover their risks.
• Why might a firm disclaim liability for injuries resulting from its negligence?
○ To avoid a mistaken finding of negligence
○ Informational asymmetry about expected risk
 Maybe the skier really wouldn't appreciate the risks involved
Tunkl Factors: Disregard Disclaimer If: (Do not need to satisfy all 6)
1. Agreement concerns type of business thought suitable for public regulation.
a. Something like a common carrier
2. Party seeking exculpation engaged in performing a service of great public importance - practical necessity.
3. Party holds himself out as willing to perform the service for anyone satisfying established criteria.
4. Party invoking exculpation possesses decisive advantage of bargaining strength.
5. Party confronts public with standardized adhesion contract of exculpation, and makes no provision for paying additional, reasonable fees
and for protection against negligence.
6. As a result, the purchaser's person or property is placed under control of seller, subject to risk of seller's carelessness.
• Express Assumption of Risk
○ Nature of the activity
 Courts more likely to enforce releases pertaining to recreational or entertainment activities than "necessary" activities
○ Clarity of the release
 Must be "unambiguous"
○ Nature and extent of risk
○ Voluntary acceptance
○ There is no argument about the clarity of the release.
○ Here the court did not enforce the release even though the nature of the activity was recreational.
• Courts generally agree that gross negligence or recklessness may never be disclaimed by agreement no matter what words are used.

Implied Assumption of Risk


Murphy v. Steeplechase Amusement Co.
○ Plaintiff was injured on a "moving belt" attraction at defendant's amusement park.
○ The attraction featured a moving belt running upward on an inclined plane where people are often unable to keep their footin g and
are thrown backward and aside.
○ The plaintiff alleges that the jerk from the belt was dangerous to life and limb in that it stopped and started violently and suddenly
and was not properly equipped to prevent injuries to persons who were using it without knowledge of its dangers.
 The court held that because the plaintiff observed visitors tumbling about the belt to the merriment of onlookers when he
decided to join them, the hazard was invited and foreseen and by taking the chance of a like fate, the amusement park is not
liable.
 Even if an irregular jerk was established, this would do little to add to the plaintiff's case because the risk at greatest was a fall.
"this was the very hazard that was invited and foreseen."
 (It helped that no similar injury had occurred on the ride in the past)
• Take Away Rule:
○ Plaintiff who voluntarily takes part in activity that involves apparent risks cannot recover if one of those risks materializ es and
causes injury
• Different case if:
○ Dangers were obscure or unobserved;
○ Dangers were so serious as to justify belief that precautions must have been taken to avert them; or
○ So many accidents had occurred as to show that "game in its inherent nature was too dangerous to be continued without change. "
• Implied Assumption of Risk
○ Primary (defendant not negligent): A defendant cannot be held liable because (1) he is under no duty to plaintiff or (2) there has be en

Outline Page 25
no breach of duty (i.e. negligence) because plaintiff's conduct has limited the duty owed him by defendant.
○ Secondary (plaintiff contributorily negligent): A defendant cannot be held liable for its established breach of duty because of the
plaintiff's behavior - assumption of risk is used as an affirmative defense.
• Sports Cases
○ Participants
 Assume risks except for intentional or reckless conduct
○ Spectators
 Limited-duty rule
○ This comes from a string of baseball cases, spectator gets hit by foul ball.
○ The duty a stadium owner has is simply to provide enough screened seating for most fans that want protected seating as
well as having screened seating for the most dangerous areas.
 The court said the limited-duty rule applies to injuries only occurring in the seats.
Davenport v. Cotton Hope Plantation
○ Davenport was injured while descending a stairway near his apartment
○ For two months before his fall plaintiff had been reporting to management that the middle stairway's floodlights were not wor king,
but he continued to use the stairway.
○ The plaintiff alleges that his fall was due to the defendant's negligence in improperly maintaining lighting in the stairway.
 The court merged "Secondary" assumption of risk with comparative negligence. Here, both the plaintiff and defendant have
been negligent and the defendant wants to use an assumption of risk affirmative defense. The court will allow the plaintiff to
recover proportionally as long as the plaintiff's fault is not greater than defendant's.
 In accordance with Judge Sanders logic, "the defendant's fault in causing an accident is not diminished solely because the
plaintiff knowingly assumes a risk.
 "In our comparative fault system, it would be incongruous to absolve the defendant of all liability based only on whether the
plaintiff assumed the risk of injury."
• Express assumption of risk and primary implied assumption of risk continue to exist and can bar recovery altogether.
• The court says that it is a jury question whether the plaintiff's negligence exceeds negligence of the defendant. The plaintiff cannot recover
if their negligence exceeded that of defendant's. This may become complicated for jury….and it is important to note that this is greater
fault bar doctrine because if jury finds equal negligence, plaintiff can still recover.
• In SC, there are four requirements to establish the defense of assumption of risk
○ The plaintiff must have knowledge of the facts constituting a dangerous condition;
○ The plaintiff must know the condition is dangerous
○ The plaintiff must appreciate the nature and extent of the danger; and
○ the plaintiff must voluntarily expose himself to the danger
• Firefighter's Rule (Assumption of Risk)
• The common-law firefighter's rule provides that a firefighter or police officer who enters a private property in the exercise of his duties
occupies the status of a licensee and, therefore, is owed a duty of care by the property owner that is less than that owed to an ordinary
invitee.
• Licensee, thus the fireman takes the property as he finds it (an argument could be posed that the fireman would be an invitee because he is
bringing about a tangible benefit to someone, saving their house. The firefighter's rule emerged before this idea of tangible benefit. So
courts found that since he didn't have an invitation but he had permission to be at the residence, that would make him a licensee not an
invitee )
Levandoski v. Cone
○ Plaintiff, a police officer, and another officer received a complaint about a noisy party.
○ Upon arriving at the residence, the plaintiff saw the defendant hide sandwich size plastic baggies in his pants which the pla intiff
believed to be marijuana.
○ The plaintiff approached the defendant and requested that he remove the baggies from his pants.
○ The defendant, to avoid arrest, ran into the woods nearby and just as the plaintiff was about to apprehend the defendant, he fell off
of a ledge onto some rocks, severely injuring him.
○ Plaintiff then sued defendant for injuries negligently caused by the defendant while the plaintiff was pursuing the defendant on
private property.
 The court held that the firefighter's rule did not apply in this case because there would not be reasonable expectations on the
defendant, as the defendant was not the property owner
 Also, there would not be double taxation because the defendant does not pay taxes on the property
• "Double taxation": Public policy against awarding damages to professional safety officers for hazards that create a need for their services
and for which they are compensated.
• The court here says that the most important justification for the firefighter's rule is the licensee analysis. The firefighter's rule doesn't
apply to this case because the defendant is not the landowner so the licensee analysis necessary to enforce the firefighter's rule doesn't
apply.
• In most states, if D1's negligence brings a safety officer to the scene of an accident, and the officer is then hurt by D2, a merely negligent
motorist, the officer may sue D2 but not D1.
• Some states allow officer to sue D2 only if D2 is more than merely negligent ( engaged in willful or intentional misconduct).
• Zanghi (New York)
○ "Firefighter rule precludes a police officer or firefighter from recovering in tort when the performance of his or her duties increased
the risk of the injury happening, and did not merely furnish the occasion for the injury."
○ This is a lot like causal link in negligence cases. Plaintiff must show a causal link, the defendant's actions increased the probability of
the plaintiff's injury.
Pre-Emption
Geier v. American Honda Motor Company
○ Plaintiff driving a 1987 Honda Accord, collided with a tree and was seriously injured.
The car was equipped with manual shoulder and lap belts but was absent airbags or other passive restraint devices.

Outline Page 26
Plaintiff driving a 1987 Honda Accord, collided with a tree and was seriously injured.
○ The car was equipped with manual shoulder and lap belts but was absent airbags or other passive restraint devices.
○ Plaintiff claimed that American Honda had designed its car negligently and defectively because it lacked a driver's side airb ag.
○ The defendant argues that the Motor Vehicle Safety Act pre -empts the tort claim because there is already a federal standard under
FMVSS 208 and the tort claim would establish a new standard.
 FMVSS 208 requires auto manufacturers to equip some but not all of their 1987 vehicles with passive restraints.
 The Motor Vehicle Safety Act has an express pre-emption provision:
○ "Whenever a Federal motor vehicle safety standard established under this subchapter is in effect, no State or political
subdivision of a State shall have any authority either to establish, or to continue in effect, with respect to any motor
vehicle or item of motor vehicle equipment, any safety standard applicable to the same aspect of performance of such
vehicle or item of equipment which is not identical to the Federal standard."
 The provision also had a "saving" clause which states:
○ "compliance with a federal safety standard does not exempt any person from liability under common law"
 So would liability under a common law tort action of defective design be a standard as in the above statute?
Arguments could be made either way.
 The court says this question does not need to be answered because the saving clause does not exempt any person
from liability under common law even when complying with a federal safety standard.
 "No airbag" tort suit not expressly preempted because of saving clause.
 "No airbag" tort suit conflicts with the objectives of FMVSS 208, a standard authorized by the Act, and is therefore
[implicitly] pre-empted by the Act under the operation of ordinary pre-emption principles."
 The objectives being that the DOT deliberately made the standard in order to provide the manufacturer with a
range of choices among different passive restraint devices so as to win widespread consumer acceptance, lower
costs, overcome technical safety problems…etc.
• So when analyzing whether a suit is pre-empted, it is important to look at the objectives of the legislature
• The legislature intends for suits to be preempted when they do not want judicial decisions to establish their own regulations.
• However, an argument can be made that legislature would not intend to pre-empt all claims because that would essentially provide
complete immunity for an industry.
Freightliner: Federal Preemption
○ Express Preemption
 Depends upon the precise terms of federal statute
○ Implied Preemption
 Scope of a statute indicates that Congress intended federal law to occupy a field exclusively; or
 State law is in actual conflict with federal law:
○ Impossible for private party to comply with both state and federal requirements; or
○ State law stands as obstacle to accomplishment and execution of full purposes and objectives of Congress. (This is Geier -
if manufacturer were forced to have airbags, that would still comply with both state and federal requirements but it
would stand as an obstacle to objectives)

STRICT LIABILITY (Liability in the absence of negligence)


B<PL ---> Negligent
B>PL ---> Not negligent, but still liable
• So the only thing strict liability adds to negligence is making a defendant liable in cases where burden of precaution was greater than the
expected accident cost.
Fletcher v. Rylands
○ The defendants had a reservoir constructed on their land that when filled with water, burst into the shafts of a mine damagin g
plaintiff's property
• The court held that a "person who for his own purposes brings on his lands and collects and keeps there anything likely to do
mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is
the natural consequence of its escape."
• (The defendant was held strictly liable for the damages to plaintiff's mine)
○ The court uses a but for reasoning saying that but for the defendant constructing a reservoir on his land, the plaintiff's
mine would have incurred no damages therefore the defendant should be strictly liable for the natural and anticipated
consequences.
• The court would not have held defendant liable under ordinary negligence. So in this case, we can assume that B>PL.
• The court held the defendant was liable anyways under strict liability. (he brought something unnatural to his land, it escaped and caused
damage to neighbor's property)
• It is not self evident why the cattle and unruly horse cases were decided how they were.
• The question is, why apply strict liability when negligence liability works well?

Some Categories of Strict Liability:


○ Escaping water
 See, e.g., Rylands
 But see, e.g., Turner
○ Explosion
 See, e.g., Sullivan; Hay
 But see, e.g., Losee
○ Wild animals kept by defendant
○ Falling airplanes
Sullivan v. Dunham
○ Defendant land owner employed two men to dynamite a 60-foot tree on the land.
The blast hurled a fragment of wood 412 feet onto a highway where it struck plaintiff's decedent and killed her.

Outline Page 27
Defendant land owner employed two men to dynamite a 60-foot tree on the land.
○ The blast hurled a fragment of wood 412 feet onto a highway where it struck plaintiff's decedent and killed her.
○ Decedent's representative sued for damages
 The court held that the defendant was strictly liable for the plaintiff's decedent's death
 To support its ruling, the court noted that strict liability in these cases:
 Protect person and property from direct physical violence, which although accidental, has the same effect as if it were
intentional
 Lessens the hardship by placing absolute liability upon the one who causes the injury
• "The question was not whether it was lawful or proper to engage in blasting but who should bear the cost of any resulting damage -- the
person who engaged in the dangerous activity or the innocent neighbor injured thereby?
• Strict liability is usually imposed for unintended explosions of stored dynamite
Standards:
○ Restatement 2d: one who "carries on an abnormally dangerous activity is subject to liability for harm…resulting from the acti vity,
although he has exercised the utmost care to prevent the harm."
○ In determining whether an activity is "abnormally dangerous" there are six factors for consideration:
1. Existence of a high degree of risk of some harm to the person, land, or chattels of others;
2. Likelihood that the harm that results form it will be great
3. Inability to eliminate the risk by the exercise of reasonable care;
4. Extent to which the activity is not a matter of common usage;
5. Inappropriateness of the activity to the place where it is carried on; and
6. Extent to which its value to the community is outweighed by its dangerous attributes
Economic Arguments supporting Strict Liability
1. Reduce activity level
a. (negligence liability does not do this) This argument is based on the concept that one party is more capable of reducing acti vity level
than another.
2. Minimize administration costs
a. Never have to determine what the burden of precaution was or should have been
b. Countering this, more cases would be filed under strict liability. So the costs minimized may be counterbalanced by an incre ase in the
number of strict liability cases.
3. Encourage long-run technological development
a. If B is 100,000 and PL is 50,000. D will not take precaution under strict liability because the D is liable anyway. However strict liability
will encourage technological development to lower B (find a cheaper precaution).
4. Minimize costs of evidentiary uncertainty
a. Strict liability eliminates the systematic decision to go above and beyond the precaution that is necessary to ensure the jur y will not
make a mistake and hold me negligent.
b. So essentially strict liability may lead to less precaution…but this is ok because it eliminated the unnecessary "extra" prec aution.
Indiana Harbor Belt RR v. American Cyanamid
○ Defendant, American Cyanamid Company, is a major manufacturer of acrylonitrile.
○ Defendant loaded 20,000 gallons of liquid acrylonitrile into a railroad tank car that it leased from the North American Car C orporation.
○ The next day, a train of the Missouri Pacific Railroad picked up the tank car and carried it to the Blue Island railroad yard of Indiana
Harbor Belt Railroad, which is the plaintiff.
○ The plaintiff is a small witching line located in the Chicago metropolitan area.
○ After arriving at the Blue island railroad yard, some of the acrylonitrile leaked out and the plaintiff was forced to take
decontamination measures that cost the line $981,022.75, which plaintiff sought to recover.
 Although their was a high degree of risk to others and the potential harm was great, the court said that this was a case of
negligence and not a case of strict liability
 "It is easy to see how the accident in this case might have been prevented at reasonable cost by greater care on the part of
those who handled the tank care of acrylonitirle. It is difficult to see how it might have been prevented at reasonable cost by a
change in the activity of transporting the chemical. This is therefore not an apt case for strict liability."
• The court basically says that a strict liability standard should not be used when a negligence standard will work.
○ The court is trying to reduce the number of these kinds of accidents by inducing the parties to take more care.
○ So why ever impose strict liability because wouldn't we always want to induce more care?
○ Strict liability gives an incentive missing in a negligence regime, "to experiment with methods of preventing accidents that
involve not greater exertions of care assumed to be futile, but instead relocating, changing, or reducing the activity givingrise
to the accident."
• SO, IF A GREATER EXERTION OF CARE WOULD NOT HAVE HELP PREVENT THE ACCIDENT AND RELOCATING, CHANGING, OR REDUCING
THE ACTIVITY GIVING RISE TO THE ACCIDENT IS FEASIBLE, THEN STRICT LIABILITY IS PROBABLY APPROPRIATE
• If an activity is extremely common, the more valuable that activity and therefore the argument for strict liability is weakened because
we do not want to reduce the occurrence of activities that are really valuable.
• So essentially the court explained how acrylonitrile is a valuable chemical and it isn't clear that any activity levels should be reduced. Strict
liability is not the proper standard here especially when negligence will work.
• When evaluating strict liability: look at the justifications of strict liability in comparison to the categories of strict liability.

• Why an enterprise should be strictly liable:


○ An enterprise has superior risk-bearing capacity compared to victims who would otherwise bear the costs of accidents, and
○ An enterprise is generally better placed to respond to the safety incentives created by liability rules than is the party suf fering harm

PRODUCTS LIABILITY
MacPherson v. Buick Motor Co.
○ Defendant automobile manufacturer sold an automobile to a retail dealer.
The retail dealer resold the vehicle to the plaintiff.

Outline Page 28
○ The retail dealer resold the vehicle to the plaintiff.
○ While the plaintiff was in the car, a defective wheel crumbled injuring the plaintiff in the accident.
○ There was evidence that its defects could have been discovered by reasonable inspection, and that an inspection was not perf ormed.
○ The court held that the car manufacturer owed a duty to the plaintiff, who the manufacturer did not directly sell to, because
the nature of the defendant's work is to produce cars and it is foreseen that a defect in its construction would endanger persons
other than the buyer (retail dealer)
• Standard imposed:
○ Manufacturer liable to user despite absence of privity:
○ When manufacturer has knowledge that product is reasonably certain to place user in danger if negligently made; and
○ Manufacturer has knowledge that the product will be used by persons other than immediate purchaser without new tests;
○ If manufacturer is negligent; and
○ Its negligence proximately causes harm
• Justification: Privity is a bad standard because a lot of the time, the person or party in privity is not the one who is actually using the
product. This case does not impose strict liability…the manufacturer still had to be negligent. This case just eliminated the privity standard.
• "Other developments included treating a retailer who sold a product under its own brand name as though it were the manufacturer and
thus holding it liable for negligent manufacture. Also, manufacturers who incorporated component parts in the final product were held
liable for the negligence of the subcontractors. Eventually, courts began holding architects and builders liable for negligence in construction
that hurt patrons or tenants."
• Early Requirements of Tort and Warranty Recovery
Privity Negligence
Tort Required Required
Warranty Required Not Required

Development of Warranty Law


• Originally applied to failure of products to perform, not personal injuries
• Warranty law extended to personal injuries caused by food products
• Extended to other products causing personal injury in Henningsen
• Privity requirement now virtually eliminated in consumer cases
Escola v. Coca Cola Bottling Co.
○ Plaintiff, a waitress, was injured when a soda bottle broke in her hand as she moved it from the case to the refrigerator.
○ The defendant bottler used pressure to bottle carbonated beverages.
○ An engineer from the bottle manufacturer testified that the tests performed on the bottles to check for defects were "pretty near"
infallible.
○ The court held that a manufacturer should be held strictly liable when a product he has placed on the market proves to have a
defect that causes injury to human beings.
Justifications:
 "It is evident that the manufacturer can anticipate some hazards and guard against the recurrence of others, as the
public cannot."
 "…the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing
business."
 "Against such risk [of defective products] there should be general and constant protection and the manufacturer is
best situated to afford such protection."
 The consumer no longer has means enough to investigate for himself the soundness of a product and therefore rely
on the reputation of the manufacturer to produce a sound product.
Limitation:
 "The manufacturer's liability should, of course, be defined in terms of the safety of the product in normal and
proper use, and should not extend to injuries that cannot be traced to the product as it reached the market."
• So first courts eliminated privity as a requirement. Then they allowed res ipsa doctrine to allow plaintiff to recovery. Now manufacturers
are held to a strict liability ONLY when they sell a defective product.
• So essentially, if a product injures a person, the manufacturer will not be held strictly liable unless the product was actually defective when
leaving the manufacturer.
• This causes future problems because what is a defective product? How do we determine if a product is defective?
• Traynor does not induce actors to take more care by enacting strict liability rather he induces actors to reduce activity level or look for
alternative activities they may be safer.
• Courts generally do not imposed strict liability on sellers of used goods nor occasional sellers
Extension From Sellers to Others
• Restatement 3d Section 1:"one engaged in the business of selling or otherwise distributing products who sells or distributes a defective
product is subject to liability for harm to persons or property caused by the defect."
○ "Strict liability has been limited to sellers who were in the business of selling the product involved"
R3 Section 20: Definition of "one Who Sells or Otherwise Distributes"
• (a) One sells a product when, in a commercial context, one transfers ownership thereto either for use or consumption or for resale leading
to ultimate use or consumption…
• (b) One otherwise distributes a product when, in a commercial transaction other than sale, one provides the product to another either for
use or consumption or as a preliminary step leading to ultimate use or consumption…
Manufacturing and Design Defects
• Section 2 provides that for purposes of determining whether a product is defective, there are three types of defects. A product:
○ Contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in
the preparation and marketing of the product;
"The most common and straightforward cases of defective products involve the aberrational mass-produced item that has

Outline Page 29
the preparation and marketing of the product;
○ "The most common and straightforward cases of defective products involve the aberrational mass-produced item that has
come off the assembly line different from (and more dangerous than) the intended product"
○ Is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adop tion
of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distributi on, and the
omission of the alternative design renders the product not reasonably safe;
○ Liability for design defects is a lot like negligence (due care). This differs from manufacturing defect because manufacturing
defect is strict liability. It doesn't matter what kind of care manufacturer took, if a defective product is sold, the manufacturer is
liable.
○ The original seller of a product with design defect is liable under a theory similar to negligence. The sellers in the chain
following the original seller is strict liability
○ Is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could hav e been
reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecess or in the
commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe."
• "a private contractor who followed government specifications in making a product could not be held liable for inadequacies in the design as
long as certain requirements were met."
• Successor Liability
○ A successor corporation or other business entity that acquires assets of a predecessor corporation or other business entity i s subject
to liability for harm caused by the predecessor's products if the acquisition:
○ Is accompanied by an agreement for the successor to assume such liability; or
○ Results from a fraudulent conveyance to escape liability for the debts or liabilities of the predecessor; or
○ Constitutes a consolidation or merger (stocks not assets)with the predecessor; or
○ Results in the successor becoming a continuation of the predecessor (only a few jurisdictions recognize this)
• Generally a successor corporation is not liable for harm caused by predecessor's products
• Liability of Commercial Seller or Distributor of Product Components for harm Caused by Products Into Which Components are Integrated
Can be liable if:
○ The component is defective
○ The seller or distributor of the component substantially participates in the integration for the component into the design of the
product;……….
General Rule Governing Causal Connection Between Product Defect and Harm
• Whether a product defect caused harm to persons or property is determined by the prevailing rules and principles governing causation in
tort.
• A manufacturer who produces a defective product is liable to consumer and rescuer of the consumer.
• Increased Harm due to product defect
○ When a product is defective at the time of commercial sale or other distribution and the defect is a substantial factor in in creasing the
plaintiff's harm beyond that which would have resulted from other causes, the product seller is subject to liability for the increased
harm.
○ If proof supports a determination of the harm that would….
• Everyone down the chain from a defect can be held liable
○ Cannot go up the chain because everyone above where the defect took place didn’t' actually sell or distribute a defective pro duct.
• "The failure to preserve the product is not always fatal to plaintiff's case if there is enough evidence of the malfunction to permit an
inference of defect." (for example, a two month old battery that exploded)

• There are two tests to determine whether a product has a design defect:
○ Cost-benefit test
○ Consumer Expectation Test
• Cost-Benefit Test
Design Defect: Cost-Benefit (or Risk-Benefit) Analysis

B = IC + RV + PL2

Where:
IC = Incremental direct cost of best alternative design (D2), relative to the actual design (D1)
RV = Reduction in net value derived from the product by consumers of it
○ (an example would be the reduction in gas mileage of a safer steel car compared to the better gas mileage of a less safe
aluminum car)
PL2 = Summation of marginal expected accident costs associated with alternative design (D2)
○ (alternative design might reduce the expected accident cost of one type of accident buy may increase the expected accident
cost of another)

B<PL1 ----> product defective

IC+RV+PL2<PL1 ---->product defective


(so if the extra cost of alterative design plus cost of reduction in net value plus costs associated with new risks of altern ative design is
less than expected accident cost, then product is defective.
• Consumer expectations test: Product failed to perform as safely as a reasonable consumer would expect
• So which test should we use?
○ Knife Hypothetical
○ Suppose knife is designed without a handle
 Seems to pass consumer expectations test. (The product did not fail the consumers expectations, the consumer expected
it to fail.)

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it to fail.)
 Seems to fail cost-benefit test (handle would not be very expensive….)
 Consumer expectations test implies that product with open and obvious dangers does not contain design defect
• Arguments for Competing Test
○ Consumer expectations test:
○ Con: When used defensively, may allow defendant to avoid liability for dangerous product that fails cost-benefit test
○ Con: When used offensively, may allow jury to find defect when design is cost justified (alternative is not reasonable, yet
defendant held liable)
○ Pro: When used offensively, may allow plaintiff to avoid needless burden of establishing defect through expert testimony under
cost-benefit test.
○ Cost-benefit test:
○ Pro: Prevents defendant from avoiding liability for product design with obvious danger that is not cost justified
○ Pro: Insures that cost-justified design is not found defective
○ Pro: Burden on plaintiff can be lessened by recognizing defect ipsa loquitur
○ Conclusion: No independent need for consumer expectations test
• That is what the Restatement says. Consumer expectations test is no longer used. Cost-benefit test will be used as long as plaintiff can rely
on defect ipsa loquitur in situations where it is warranted. Consumer expectations are a factor in the cost-benefit analysis.
Soule v. General Motors Corporation
○ Plaintiff's car was struck in the area of the left front wheel (estimated closing speed 30 to 70 mph)
○ The wheel collapsed into the floorboard and injured the plaintiff.
○ The plaintiff sued General Motors claiming that defects in her automobile allowed its left front wheel to break free, collaps e
rearward, and smash the floorboard into her feet.
○ The issues of defect and causation were addressed through numerous experts produced by both sides.
○ The court held that the consumer expectations test could not be used in this case because whether the automobile was
defective in design was outside the common knowledge of lay jurors.
○ The Cost-benefit test must be used
○ "The crucial question in each individual case is whether the circumstances of the product's failure permit an inference that
the product's design performed below the legitimate, commonly accepted minimum safety assumptions of its ordinary
consumers."
• If consumer expectations test is used, Defendant may not defend by proving that design passes cost-benefit test
• Expert testimony on the subject of consumer expectations inadmissible except when (1) product is specialized - used only by select group-
and (2) jury is not familiar with reasonable expectations of that group. Then, expert testimony can be introduced to prove expectations of
that select group of users.
• Question as to whether evidence permits use of consumer expectations test one of law for the judge
• In this case, the burden was on the defendant to show that the benefit of its actual design outweighed the risks.
○ However, courts in the future have considered this a large burden on the defendant and have switched the burden onto the plai ntiff
to present an alternative design would have been better without being overly expensive .
• Various Positions on Defective Design Tests
○ Some states emphasize consumer expectations test
○ Other states emphasize cost-benefit test, or the search for "excessive preventable danger"
○ Some states let plaintiff choose between the two, or try both
○ California identifies circumstances in which one or the other test must be used
○ The restatement 3d eliminates consumer expectation and uses cost -benefit as long as defect ipsa loquitur is at the plaintiff's disposal.
• Prescription Drugs and Design Defects R3 section 6©
○ "A prescription drug or medical device is not reasonably safe due to defective design if the foreseeable risks of harm posed by the
drug or medical device are sufficiently great in relation to its foreseeable…
• Prescription Drug cases in Court
○ Many courts have in fact applied explicit cost-benefit analysis, rather than Restatement 3d's test, in prescription drug cases.
• Swimming pool Case, Page 582:
○ "Still other products, including some for which no alternative exists, are so dangerous and of such little use that under the risk-utility
analysis, a manufacturer would bear the cost of liability of harm to others."
Crashworthiness Doctrine
○ A motor vehicle manufacturer may be liable in negligence or strict liability for injuries sustained in a motor vehicle accide nt where a
manufacturing or design defect, though not the cause of the accident, caused or enhanced the injuries. (manufacturer has a du ty of
reasonable care to minimize the injurious effects of a foreseeable collision by employing common -sense safety features)
• Camacho v. Honda Motor Co.
○ Plaintiff suffered severe leg injuries when his motorcycle collided with a car.
○ Plaintiff and his wife sued the various parties in the chain of distribution, claiming that the absence of crash bars to prot ect the legs
made the product defective under a strict liability analysis.
○ Should consumer expectation test or cost-benefit test be used?
○ The court held that the consumer expectation test diverts the appropriate focus because it allows a defendant to escape
liability for an open and obvious danger when really the design could be defective because another reasonable and efficient
alternative is available
• Note: If the motorcycle driver was negligent in getting into the crash, that can reduce the damages received from a defective product
liability.
• When weighing risks and benefits of a design, one should consider:
○ The usefulness and desirability of the product - its utility to the user and to the public as a whole(this would be "RV")
○ The safety aspects of the product - the likelihood that it will cause injury and the probable seriousness of the injury (this is "PL1")
○ The availability of a substitute product which would meet the same need and not be as unsafe (this is like "RV" and "PL2")
○ The manufacturer's ability to eliminate the unsafe character of the product without impairing its usefulness or making it too
expensive to maintain its utility (this is like "IC" and "RV")

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○ The user's ability to avoid danger by the exercise of care in the use of the product
○ The user's anticipated awareness of the dangers inherent in the product and their avoidability because of general public know ledge of
the obvious condition of the product, or of the existence of suitable warnings or instructions
○ The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liabi lity insurance.
• "It may be inferred that the harm sustained by the plaintiff was caused by a product defect existing at the time of sale or distribution,
without proof of a specific defect, when the incident that harmed the plaintiff:
○ Was of a kind that ordinarily occurs as a result of product defect; and
○ Was not, in the particular case, solely the result of causes other than product defect existing at the time of sale or distri bution
Safety Instructions and Warnings
• A product "is defective because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have
been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor, or a predecessor in the
commercial chain of distribution, and the omission of the instructions or warnings renders the product not reasonably safe."
• A seller is liable to inadequate warnings if manufacturer failed to provide adequate warnings. (it is down the chain of distribution,
remember sellers are strictly liable down the chain of distribution)
• Comment I
○ "Instructions inform persons how to use and consume products safely"
○ "Warnings alert users and consumers to the existence of and nature of product risks so that they can prevent harm either by
appropriate conduct during use or consumption or by choosing …
• Better distinction:
○ Safety Instructions: The words used may reduce risk by inducing consumers to use or consume the product in a certain way.
○ Warnings: The words simply notify the user that certain dangers exist when the product is properly used; risk can be reduced only by
not using or consuming the product al all.
• Proposed Theoretical Principle
○ Issuing an instruction should render the manufacturer's design non -defective when the cost to user of conforming their conduct to
the appropriate use of the product is cheaper precaution than is the net cost of a safer design.
• Current Law
○ Some courts recognize that one cannot completely separate analysis of design from analysis of instructions and warnings
○ Cost-benefit analysis of design requires inquiry into probability of accident, and probability is affected by instructions
○ Still, as formal matter, some courts conduct analysis of design and warnings separately.

If consumers typically ignore the instructions, X<B; and B<PL,


○ Courts generally would then hold the manufacturer liable for a defective design.
○ One could say that given the proclivity of consumers, their cost of precaution is not in fact less than the cost of alternati ve design.
• Obvious Danger
○ Suppose risk from improper use of a product is obvious, so that reasonable consumers will know without being specifically inf ormed
by seller what precautions they should take (i.e., that they should incur cost X).
○ E.g., suppose knife manufacturer does not instruct users, "Do not grasp blade."
○ Instruction will entail cost but produce no benefit (because the danger is obvious). Manufacturer will not be held liable fo r
inadequate warning or instruction).
• Legal Implications
○ Open and obvious dangers:
○ Do not preclude design defect claim; but
○ Do preclude warning or instruction defect claim
• Unforeseeable Misuse
○ Suppose some consumer tacks a bed sheet to the rose trellis and tries to use it as a hang glider
○ In general, product does not contain instruction defect if it fails to instruct against unforeseeable and dangerous misuse
○ Thus, no duty to provide instructions against unforeseeable misuse
○ Also, no duty to design against unforeseeable misuse
• Distinguishable Cases
○ Manufacturer did not intend actual use, and actual use unforeseeable
○ Manufacturer did not intend actual use, but actual use foreseeable
○ Manufacturer did intend actual use, but manufacturer expressly instructed against it
○ E.g., ladder manufacturer instructs, "Do not climb on this device."
• Comment p
○ Misuse, modification, and alteration are not discrete legal issues. Rather, when relevant, they are aspects of the concepts of:
○ Defect;
○ Causation; and
○ Plaintiff's fault"
• Warnings of Irreducible Risks
○ Suppose a product, e.g., a drug, cannot be made safer at reasonable cost or consumed in a way that reduces danger.
○ Thus, B>PL and X>PL (remember X is the consumer changing their activity)
○ Nevertheless, a certain number of accidents will occur.
○ Manufacturer cannot be held liable for defective design
○ But manufacturer can be held liable for a defective warning
• Questions to think about:
○ Is an instruction or warning unnecessary because the danger was obvious?
○ Is a warning unnecessary because the plaintiff's conduct was an unforeseeable misuse of the product?
○ Did the risk arise because a third party altered the product?
○ Is a warning unnecessary because the risk incident to the intended use of the product was unknown and unknowable by the
manufacturer when time it parted with the product?

Outline Page 32
manufacturer when time it parted with the product?
○ Is the warning that was issued inherently adequate?
○ Did the defendant convey the warning to the appropriate addressee?
• If any of these questions are answered in the affirmative then manufacturer will most likely not be held liable for inadequate warning.
• Did the absence of a required, adequate warning cause the plaintiff's injury--would the plaintiff have acted differently and avoided the
injury if an adequate warning had been given?
• Hood v. Ryobi America Corp.
○ Plaintiff, Hood, purchased a miter saw which included a number of warnings in the operator's manual and affixed to the saw it self
that stated the user should operate the saw only with the blade guards in place.
○ Hood, despite reading the warnings, removed the blade guards when operating the saw and consequently suffered personal injury .
○ Hood contends that defendant failed to adequately warn of the dangers of using the saw without the blade guards (specifically
defendant failed to explain the consequences of using the saw without blade guards.
○ The court held that the warnings given were adequate because a manufacturer need not warn of every consequence of not
using the product safely
• Basically, a manufacturer only needs to warn that serious injury may result if used in a certain way, but the manufacturer does not need to
warn of the consequences of the misuse.
• Was it even necessary to warn of this danger…it is pretty obvious that a spinning blade without the guards would be dangerous.
○ Manufacturers still place warnings to protect themselves from liability (just in case as a precaution)
○ On the other hand, placing too many warnings may deter consumers to purchase product so it’s a balance.
• Puzzle
○ Instructions and warnings are assessed under standard of reasonableness, which requires balancing cost of additional warning against
benefit in reducing expected accident cost.
○ What is the cost of a more detailed warning?
• Costs of Warning
○ Direct incremental cost (e.g. more ink)
○ Trivial
○ Label clutter: Reduce the impact of the most serious warnings
○ Significant
○ But how is this cost measured?
Pittman v. Upjohn Co.
○ The warning must adequately indicate the scope of the danger;
○ The warning must reasonably communicate the extent or seriousness of the harm that could result from its misuse;
○ The physical aspects of the warning must be adequate to alert a reasonably prudent person to the danger;
○ A simple directive warning may be inadequate when it fails to indicate the consequences that might result from failure to fol low it
and,
○ The means to convey the warning must be adequate
• Question of Fact
○ Though most courts hold that the adequacy of a warning is a question of fact, some courts have held that adequacy, in some or all
circumstances, is a question of law
• Causation and the "Heeding Presumption"
○ Some courts invoke a 'heeding presumption":
○ Causation is presumed, but defendant can rebut by showing that the user would not have heeded an adequate warning. (shifts
burden on defendant to show that plaintiff would not have heeded adequate warning)
• Addressee
○ Normally, warning (or instructions) must be given by the seller to expected user
○ Sometimes:
○ Warning to expected user not feasible
 For example it is probably infeasible for a manufacture of a dangerous chemical who produces it in barrels to give a
warning to the employees of nursery who uses the pesticide
○ Warning to expected user not effective in reducing risk to others
 A cigarette lighter may likely fall into the hands of a child
○ Warning to intermediaries more effective
• Categories:
○ Dangerous products intended for adult use that are likely to fall into the hands of young children.
○ Seller may be required to notify the intended user of dangers to children, or seller may be required to notify children
themselves.
○ Products that are distributed through learned intermediaries.
○ Seller generally required to notify only the intermediary but there are exceptions to the exception
○ Products that the manufacturer who supplies in bulk
○ Generally required to notify only the employer
Learned Intermediary Doctrine
Edwards v. Basel Pharmacy
○ Alpha Edwards brought a wrongful death action for the death of her husband who died of a nicotine -induced heart attack as a result
of smoking cigarettes while wearing two Habitrol nicotine patches.
○ Plaintiff alleges that the warnings given in conjunction with the Habitrol patches were inadequate to warn her husband of the fatal
risk associated with smoking and overuse of the product.
○ Defendant contends that the "learned intermediary doctrine" bars liability because the doctrine only requires that the prescr ibing
physicians be given complete warnings regarding the use of the patches (which the defendant complied with)
○ The learned intermediary doctrine operates as an exception to the manufacturers duty to warn the ultimate consumer, and shiel ds
manufacturers of prescription drugs from liability if the manufacturer adequately warns the prescribing physicians of the dan gers of

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the drug.
○ "the reasoning behind this rule is that the doctor acts as a learned intermediary between the patient and the prescription drug
manufacturer by assessing the medical risks in light of the patient's needs."
• Two (Three) exceptions have been recognized:
○ Mass immunizations fall outside the contemplated realm of the learned intermediary doctrine
 Individualized attention may not be given by medical personnel in assessing the needs of the patient
○ When the FDA mandates that a warning be given directly to the consumer.
○ Manufacturer advertises drug to consumers? (grounds for this is when the patient does not rely on the doctor to see if they
should use the drug but rather the doctor just acts as a facilitator of the drug to the patient)
□ The court saw no reason that the FDA exception should not apply to nicotine patches
Unknown Danger
Vassallo v. Baxter healthcare Corporation
• Plaintiff alleged that silicone gel breast implants had been negligently designed, accompanied by negligent product warnings, and that
the manufacturer breached the implied warranty of merchantability.
• The current law at the time regarding the duty to warn under the implied warranty of merchantability presumes that a manufact urer
was fully informed of all risks associated with the product at issue, regardless of the state of the art at the time of the s ale, and
amounts to strict liability for failure to warn of these risks.
○ Public policy was used to justify the law at the time
 The court rejects the implied warranty of merchantability. A manufacturer will now be held to the standard of knowledge
of an expert in the appropriate field, and will remain subject to a continuing duty to warn (at least purchasers) of risks
discovered following the sale of the product at issue.
○ The goal of the law is to induce conduct that is capable of being performed. This goal is not advanced by imposing
liability for failure to warn of risks that were not capable of being known.
• A defendant is not liable under an implied warranty of merchantability for failure to warn or provide instructions about risks that were not
reasonably foreseeable at the time of sale or could not have been discovered by way of reasonable testing prior to marketing the product.
• A manufacturer will be held to the standard of knowledge of an expert in the appropriate field.
• A manufacturer will remain subject to a continuing duty to warn (at least purchasers) of risks discovered following the sale of the product at
issue.
• You may have an allegation to notify prior purchasers once a danger is discovered.
• Prescription Drug Resellers
• Resellers of prescription drugs, unlike resellers of other products, are not strictly liable for harm caused by defective des ign or
warning; they are liable only if they fail to exercise due care in selling product with design or warning defect.
• The pharmacist will be strictly liable for a manufacturing defect.
• A manufacturer may have a duty to warn post sale if:
• The seller knows or reasonably should know that the product poses a substantial risk of harm to persons or property;
• Those who would benefit from the warning can be identified and are likely unaware of the risk;
• A warning can effectively be communicated to and acted upon by recipients; and
• That the "risk of harm is sufficiently great to justify the burden of providing a warning."
R3 Section 9: Misrepresentation
• "One engaged in the business of selling or otherwise distributing products who, in connection with the sale of a product, makes a
fraudulent, negligent, or innocent misrepresentation of material fact concerning the product is subject to liability for harm to persons or
property caused by the misrepresentation."
○ Intentional misrepresentation - fraud
○ There must be a reliance on that misrepresentation
○ Negligent misrepresentation - you didn't intend to misrepresent product but you were negligent in representing product and
someone relied on that misrepresentation.
○ Innocent - it does not matter if you had no intent and were not negligent
Defenses
• Contributory negligence…is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to
guard against the possibility of its existence.
• On the other hand the form of contributory negligence which consists in voluntarily and unreasonably proceeding got encounter a known
danger, (or) assumption of risk, is a defense under this Section as in other cases of strict liability.
○ If the user or consumer discovers the defect and is aware of the danger, and nevertheles...
• R3 Section 17: Apportionment
○ See angel
○ Comment a
○ Comment d
General Motors Corp. v. Sanchez
○ Decedent mis-shifted into park when stopping his truck close to a gate.
○ When decedent walked toward the gate, the gear shift slipped from the perched position of hydraulic neutral into reverse and rolled
backwards.
○ Decedent got caught between the truck and the gate and in struggling to free himself, severed an artery and bled to death.
○ Plaintiffs sued General Motors and the dealership that sold the pickup for negligence, products liability, and gross negligen ce based
on the defect in the truck's transmission.
○ The court held that a consumer has no duty to discover or guard against a product defect, but a consumer's conduct other than
the mere failure to discover or guard against a product defect is subject to comparative responsibility.
○ "We believe that a duty to discover defects, and to take precautions in constant anticipation that a product might have a
defect, would defeat the purposes of strict liability."
○ The court held that there was legally sufficient evidence to support the jury's verdict that decedent breached the duty to use
ordinary care and was fifty percent responsible for the accident.

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ordinary care and was fifty percent responsible for the accident.
○ "although we do not expect the average driver to have the engineering background to discover defects in their car's
transmission, we do expect the reasonably prudent driver to take safety precautions to prevent a runaway car. Decedent
had a responsibility to operate his truck in a safe manner. The fact that the precautions demanded of a driver generally
would have prevented this accident does not make decedent's negligence a mere failure to discover or guard against a
mis-shift."
• So if plaintiff's conduct takes any form other than failing to discover or guard against a defect, plaintiff's recovery can be reduced as subject
to comparative responsibility.
• Express Assumption of Risk
○ Some courts refuse to enforce them in products liability cases
○ Other courts enforce them
• Disclaimers generally do not bar a plaintiff from a products liability action
Work-Related Injuries
• Workers injured on the job can generally sue third parties they believe violated tort obligations toward them.
Jones v. Ryobi
○ The printing press where plaintiff was employed had been modified by removing the guard and disabling the interlock switch th at
would allow the press to run without the guard in place.
○ Plaintiff seriously injured her hand when she caught it in the moving parts of a press.
○ She sued the manufacturer and distributor of the press alleging negligence and strict product liability for defective design.
○ The court held that the defendants were not strictly liable because plaintiff's evidence showed a third party's modification, not
a defect existing when the press was sold, was the sole cause of her injury.
○ "Jones failed to meet her burden because her evidence showed the press had been substantially modified by removing
the safety guard and disabling the interlock switch, and showed the modification caused her injury."
• Majority:
○ Under Missouri law, when a third party's modification makes a safe product unsafe, the manufacturer and seller are relieved o f
liability EVEN IF THE MODIFICATION IS FORESEEABLE.
○ Plaintiff did not submit sufficient evidence to show that press was unsafe as originally sold, that is, before the modificati on.
Liriano v. Hobart
○ Liriano, a 17 year old, was employed in the meat department of a grocery store.
○ He lost his right hand and lower forearm when his hand was caught in a meat grinder manufactured and sold by defendant.
○ The safety guard had been removed from the grinder while in the possession of the grocery store and there was no warning on t he
grinder about the danger of using it without a guard.
○ Liriano sued Hobart, the manufacturer, under theories of negligence and strict products liability for defective product desig n and
failure to warn.
○ Hobart impleaded Super
○ Product modification took place in the hands of the grocery store but not by the plaintiff himself
○ Plaintiff alleges a design defect theory and a failure to warn theory
○ Robinson: Manufacturer not liable under defective design theory for injures resulting from substantial alterations or
modifications of a product by a third party that render the product defective…..
○ Lopez: Plaintiff may recover for injuries suffered as a result of removing a safety feature if the product is purposefully
manufactured to permit its use without the feature. So this would be an exception to Robinson.
○ So when is a product purposefully manufactured to permit its use without the feature?
○ What if a manufacturer attaches a safety guard with conventional screws, which can be removed, rather than more
expensive one-way screws?
○ What if the two kinds of screws cost the same amount?
○ In New York, if you create a product that is unusable unless the safety feature is removed, you can be held liable
○ Back to Liriano, holdings:
○ Manufacturer can be held liable under failure to warn theory for risks posed by foreseeable modifications of a product in
cases in which the substantial modification defense might otherwise preclude a design defect claim
○ Because failure to warn liability is intensely fact specific, whether it is barred in this case is appropriately addressed by
Second Circuit in light of the substantive law question we have now resolved.
○ The court rules this way because slapping a warning on product (warning of foreseeable modifications) is much cheaper
than designing a product that alleviates the risks of modification.
• Modification (3 possibilities)
1. Unforeseeable
a. Uniform Rule: No liability under design or warning defect theory
2. Foreseeable, but Unintended
a. MO: No liability (at least under design defect)
b. NY: No liability under design theory; liability possible under warning theory
c. Majority: Liability possible under design and warning theory (so you have to design a product applying the cost -benefit analysis taking
into account the foreseeability of modifications)

3. Intended ("Purposeful") (and foreseeable)


a. MO: ?
b. NY: Liability possible under design (or warning) theory
c. Majority: Liability possible under design (or warning) theory

Why in New York can a manufacturer not be held liable under a design defect theory for modifications that are not "purposeful" but are
foreseeable?
• Court's Answer: Robinson - a manufacturer's duty does not extend to designing a product that is impossible to abuse or one whose safety

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foreseeable?
• Court's Answer: Robinson - a manufacturer's duty does not extend to designing a product that is impossible to abuse or one whose safety
features cannot be circumvented.
○ This, however, does not actually answer the question. The question should you be held liable for not designing a product MOR E
resistant to foreseeable modifications not to design a product that is resistant to all modifications.
• Bulk Supplier and Warnings
○ Factors in Texas
○ The likelihood of serious injury from a supplier's failure to warn;
○ The burden on the supplier of giving a warning;
○ The feasibility and effectiveness of a supplier's warning;
○ The reliability of employers to warn their employees;
○ The existence and efficacy of other protections; and
○ The social utility of requiring, or not requiring, suppliers to warn
• Meshing Worker Compensation and Tort
○ Employees can recover against parties other than the employer through the tort system despite recovery though workers'
compensation; to this extent, the systems are not mutually exclusive.
○ However, the employee generally cannot recover more than the full amount of her damages
○ Further, some states prohibit suits against co -workers.
○ In a few states suits are barred against any third party who is contributing to the compensation system.
• Workers compensation does not include pain and suffering. This is why WC provides less benefits than a tort claim. So the employer is
liable for a greater spectrum of injuries under WC but for less amount than a tort claim. The employee can not recover against the
employer in tort.

Suppose:
• Employee receives workers' comp benefits
• Employee sues third party and recovers damages
• Third part seeks indemnification or contribution from the employer ( you the employer allowed the employee to get hurt)

1. Majority Approach: Most states will not allow a third party found liable in a tort action brought by an employee to recover any
compensation from the employer.
○ But the employer (or insurance carrier) has a lien for its worker compensation payments that it will satisfy from the employe e's tort
recovery.
 Thurs, under the majority approach, a negligent employer pays no compensation for the injuries
○ In all:
 The employee is denied double recovery; but
 The entire amount of compensation is paid by the third party; and
 The employer (or carrier) pays nothing, even if he was negligent in allowing the employee to use the third party's product.
2. Some jurisdictions apply a new tort approach and apportion burdens of compensation among all negligent actors, including the employer,
thereby requiring the employer to pay its full proportionate share of the tort judgment.
○ But a negligent employer may have to pay more than the worker compensation scheme deems appropriate.
3. Require employer to contribute a share of the damage award against the third party in proportion to its relative fault, but only up to the
amount of the employer's financial exposure to pay workers' compensation benefits.
○ Let third party assert the workers' comp payment as a setoff against the employee's tort claim against it, so that
a. Implications of this approach
i. Employer does have to pay an amount up to the workers' comp benefits - the employer does not escape scot-free - but is not
exposed to greater liability than that specified by the workers comp system. But here are two problems:
1) Introduces an additional and expensive contest over the employer's fault into the dispute between employee and third
party about the safety of a product.
2) Complex calculations are necessary to work out the appropriate reductions and setoffs whenever tort claim is settled,
usually for a fraction of tort damages, where full workers' comp benefits have already been paid.
4. Uniform Product Liability Act: State workers' comp statutes are altered to provide for the following:
a. Eliminate the employer's lien (or right of subrogation) against the employee's tort award; and
b. Reduce the tort award against the third party by the amount of worker comp benefits.

So basically, employee gets tort award, employer pays the workers comp. part of tort award.
Third party pays the rest of the tort award

4 is a lot simpler than 3

Beyond Products
Royer v. Catholic Medical Center
○ Catholic Medical Center, the defendant, provided and implanted a prosthetic knee on Plaintiff.
○ The prosthetic knee turned out to be defective and P underwent a second operation to remove the old prosthetic and plant a ne w
one.
○ Plaintiff alleged that CMC "was strictly liable because it had sold a prosthesis with a design defect that was in an unreason ably
dangerous condition."
○ The defendant moved to dismiss arguing that it was not a "seller of goods" for purposes of strict products liability.
○ The court held that where a health care provider in the course of rendering health care services supplies a prosthetic deviceto
be implanted into a patient, the health care provider is not "engaged in the business of selling" prostheses for purposes of strict
products liability.
• Here, the hospital has given the patient a tangible material (the prosthetic) and billed the patient for it. The court appears to view the

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products liability.
• Here, the hospital has given the patient a tangible material (the prosthetic) and billed the patient for it. The court appears to view the
prosthetic as a product but this is incidental to the services the hospital offers.
• Essentially, the hospital is in the business of providing services, not selling products.
• One argument is that the prosthetic was not a product
• The other argument is that the prosthetic was a product but the hospital was not in the business of selling prosthetics
• Although an architect produces designs, it provides a service. Not a product.
• Here, the hospital has given the patient a tangible material (the prosthetic) and billed the patient for it. The court appears to view the
prosthetic as a product but this is incidental to the services the hospital offers.
• Essentially, the hospital is in the business of providing services, not selling products.
• In N.H., is a bicycle retailer liable for sale of a replacement tire that contains a manufacturing defect?
○ Yes, the bicycle retailer is in the business of selling bikes and is down the chain of distribution. From Royer, defendant m ay argue that
the shop was not in the business of selling replacement tires. This doesn't seem to mesh with Royer however because the hosp ital is
not in the business of selling any products
• In N.H., is a bicycle retailer liable for sale of a bicycle that contains a design defect?
○ No, not in N.H. In N.H., you would have to sue the manufacturer to assert strict liability.
• Why not impose strict liability on the seller of services?
Suppose a physician accurately states that you have cancer, that the best medical option is surgery, and that there is a 90% chance
that the surgery will fail. She performs the operation as well as humanly possible, and you die. Does "strict liability" me an that the
surgeon is liable for wrongful death?
○ No strict service liability
• Arguments for "Strict" service provider liability
○ Supplier has more info about service quality than consumer
○ Physician is in better position to improve quality
○ Patient's reliance on doctor's skill is even greater than the purchaser's reliance on the manufacturer's skill
○ Plaintiffs have difficult time proving negligence of physicians
○ Hospitals and doctors can spread risk of loss better than can patients
• Imposing a standard of strict liability on services would cause an increase in the price of services. Those providing services would be held to
a higher standard than even ordinary negligence.
Intersection of Tort and Contract
East River Steamship Corp. v. Transamerica Delaval Inc.
○ Defendant Delaval made and sold turbines to plaintiff charterers that turned out to be defective causing damage to the turbin es
themselves.
○ The charterers' brought tort claims for the cost of repairing the ships and for income lost while the ships were out of servi ce.
○ Whether a cause of action in tort is stated when a defective product purchased in a commercial transaction malfunctions, inju ring
only the product itself and causing purely economic loss.
○ The court held that their was no cause of action in tort.
• Cost of repairing turbines; and
• Profits lost while ships were out of commission

Competing Approaches
1. Majority land-based: Tort liability not available if defective product injures merely itself and thereby causes purely monetary harm -- relief is
confined to warranty and contract
2. Intermediate: Tort liability available if and only if defective product endangers users (analogous to zone of danger discussed for emotional
distress)
3. Minority land-based (majority in admiralty): Tort liability available when defect injures only product itself, whether or not defect
endangered others.

• Court adopts the majority land-based approach.

Differences between tort and warranty (contract) actions


• Measure of damages?
• Privity?
• Ability to limit damages?

Court's Rationale:
• Intermediate positions too indeterminate to allow business planning. (when will a product endanger someone…who knows)
• Minority land-based position fails to "account for the need to keep products liability and contract law in separate spheres and to maintain a
realistic limitation on damages."

UCC section 2-714


(2) The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods
accepted and the value they would have had if they had been as warranted, unless special circumstances show proximate damages of a
different amount.
(3) In a proper case any incidental and consequential damages under the next section may also be recovered.

UCC section 2-715


(2) Consequential damages resulting from the seller's breach include
(a) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had r eason to
know and which could not reasonably be prevented by cover or otherwise; and
(b) injury to person or property proximately resulting from any breach of warranty

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know and which could not reasonably be prevented by cover or otherwise; and
(b) injury to person or property proximately resulting from any breach of warranty

A seller can put limitations on their liability in a warranty. The same cannot be said in tort law.
• Tort law tends to interfere with the arrangements between the seller and user.

Hypothetical
• A manufacturers a boat and sells to B
• B installs a skiff and sells to C
• Boat sinks because of defect
• Can C recover against A and/or B for loss of skiff?
○ C can recover against A and B for loss of skiff because skiff is "other property" under East River
• Respond to this argument against allowing recovery for loss of the extra equipment: If a subsequent user can recover against the original
seller for damage a defective product causes to property added by the initial user, then a user might recover against the product
manufacturer formajo damage a defective component causes the manufactured product, contrary to East River

Saratoga's Response
• Majority: the relevant relations among initial users, manufactures, and component suppliers are typically different from those at issue here

UCC Section 2-314: Implied Warranty of Merchantability


(1) Unless excluded or modified (2-316), a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a
merchant with respect to goods of that kind…
(2) Goods to be merchantable must be at least such as:
a. Pass without objection in the trade
b. In the case of fungible goods, are of fair average quality
c. Are fit for the ordinary purposes for which such goods are used
d. Run…of even kind, quality and quantity
e. Are adequately contained, packaged, and labeled; and
f. Conform to the promises or affirmations of fact made on the container or label if any…

• Privity is a requirement under this section….

UCC Section 2-315: Implied Warranty of fitness for Particular Purpose


○ Applies to an unusual purpose (as opposed to ordinary in 2-314) of the goods
UCC Section 2-316
Section (3)(a): all implied warranties can be excluded with wording such as "as is"
UCC Section 2-313: Express Warranty
(a) affirmation of fact or promise
(b) any description of the goods which is made part of the basis of the bargain
c
UCC Section 2-316(1)
○ With respect to express warranties, language creating the warranty and that tending to limit it should be construed as consis tent
whenever possible, but limitation is inoperative to the extent that the construction Is unreasonable.
DAMAGES
Outline of Damages
1. Compensatory
a. Pecuniary loss
i. Past
1) Lost earnings
2) Medical expenses
3) Economic value of household contributions
ii. Future
1) Lost earning capacity
2) Medical expenses
3) Economic value of household contributions
b. Nonpecuniary loss
i. Pain and suffering
ii. (Hedonic)
2. Punitive
Lost Earning Capacity: Step One
1. Construct wage profile based on current conditions
○ Assume P is 55 year old laborer in Chrysler assembly plant with 20 years experience at time of accident and judgment
○ Salary increases with seniority
○ P expected to retire at age 65
○ P earns 50,000 per year
○ P earns no other income

Step Two
2. For each year, make adjustments to reflect real utility of present income
a. Add fringe benefits
i. Such as a car

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a. Add fringe benefits
i. Such as a car
ii. Or free food
b. Subtract taxes (so victim is not overcompensated, but underdeterring the tortfeasor because instead of paying 50,000 the tort feasor
only has to pay 30,000. so the tortfeasor only has to take a burden of precaution of 30,000 not 50,000. The government is b earing
the loss in taxes)
c. Subtract employment-related costs avoided
i. So now that the plaintiff can't work, identify the costs plaintiff was bearing because of working (uniforms, gas money) and
subtract those.
Step Three
3. For each year, make adjustments to reflect probable changes over time
a. Multiply by actuarial probability
i. Plaintiff may die. Identify the probability that the plaintiff may die before retirement and adjust wages accordingly
ii. Multiply by probability of avoiding lay-off
iii. Adjust for changes in job category if not speculative (there must be enough evidence to support the assertion that you would
have been promoted, not just the fact that you were a good worker and it seemed likely)
□ Such as a job promotion (salary increases)
iv. Multiply for expected productivity gains
1) If economy is predicted to grow, productivity increases, salaries will rise accordingly
v. Perhaps adjust for inflation
□ Depends on method of discounting to present value

Interlude: Discounting to Present Value


• Because of the time-use value of money, a dollar is worth more to a person if he has it today than if he will have it in the future
• If a person would receive, say $100, in the future, he must be given less than $100 now to make him whole
○ He could invest the amount and earn interest
• The entitlement to $100 in the future must be discounted to present value.
• Discounting a future sum to present value is the analytical flip-side of awarding pre-judgment interest on a past sum.
• (so in other words, how much do we have to pay you today so that in five years it would equal the amount we have proposed you would
have made in that year)

Present Value Example


• As discount rate (an interest rate) increases, present value decreases
• Present value of lost earnings of 25,000 per year for 10 years ….

Methods of discounting to Present Value


• Use market interest rate as discount rate or
• Use real interest rate as discount rate

Market Interest Rate


• Three Components
○ Risk Premium
 Plaintiff is entitled to a riskless investment. See bullet point below
○ Real opportunity cost of capital
○ Anticipated inflation
• Eliminate the risk premium by using a riskless investment instrument (e.g. U.S. government bond)
○ Market interest rate for this instrument will reflect only "b" and "c"

Effect on Income Adjustment


• If market interest rate is used to discount to present value, the discount rate will include inflation, and future salary must also be increased
to reflect inflation

Real Interest Rate


• Calculate real interest rate-net of (a) risk and c inflation-and use it as discount rate
• If real interest rate is used as discount rate, do not increase salary for inflation

Suppose market interest rate for U.S. treasury bond is 10%


Inflation component 8%
Real cost of riskless capital 2%
• Market interest rate
○ Use discount rate of 10%
○ Increase salary by 8% for inflation
• Real interest rate
○ Use discount rate of 2%
○ Do no increase salary inflation

Which Method?
• Method chosen does not matter as long as adjustments to (1) discount rate and (2) anticipated income are symmetrical.
• Still, Supreme Court in Pfeifer expressed preference for real interest rate method

Expected Net Income Discount Rate used

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Expected Net Income Discount Rate used
Increase for inflation Market interest rate
Do not increase for inflation Real interest rate

Step Four
4. Calculate the present value of each future annual adjusted income sum by applying discount formula
Present Value of $1 is 1/(1+r) n where r=discount rate
n=number of years at issue
Step Five
5. Add together the present values of each future adjusted income amount
Seffert v. Los Angeles Transit Lines
○ Plaintiff was in the process of entering defendant's bus when the doors closed suddenly catching her right hand and left foot .
○ The bus started and dragged her some distance before throwing her to the pavement
○ Plaintiff suffered serious, painful, disabling and permanent injuries, particularly to her left foot.
○ She was crippled and will suffer pain for life. (Since the accident and because of it, plaintiff has undergone nine operation s and has
spent eight months in various hospitals and rehabilitation centers)
○ Defendants did not challenge evidence of liability but rather they allege that the damages awarded to the plaintiff, especial ly for pain
and suffering, were excessive.
 The court held that while the amount of the award is high, it could not say as a matter of law that it is so high that it shocks the
conscience and gives rise to the presumption that it was the result of passion or prejudice on the part of the jurors.
○ "In the instant case, the nonpecuniary items of damage include allowances for pain and suffering, past and future,
humiliation as a result of being disfigured and being permanently crippled, and constant anxiety and fear that the leg will
have to be amputated."
○ Also, when plaintiff used a mathematical formula to calculate damages for pain and suffering, the defendant did not
object, assign it as misconduct or ask that the jury be admonished to disregard it and as a result the point was waived and
cannot be raised on appeal
• Are nonpecuniary (pain suffering) damages recoverable?
○ Arguments for recovery
 Individuals are not wholly compensated: leads to under-deterrence (tortfeasors do not have to pay as many damages)
○ Arguments against recovery
 It is difficult to quantify pain and suffering. This ultimately leads to higher administrative costs. The legal system is better off
not allowing recovery
• Proper jury instruction? Suppose nonpecuniary damages will be awarded. How is the jury instructed?
○ The court in Seffert did not reveal how to instruct jury. It is difficult to quantify and therefore difficult to instruct.

• There are two elements of pain and suffering:


○ Physical Component
○ Emotional component
 Embarrassment/humiliation
 Fear
• Should these elements be divided into two separate actions?
○ It is difficult to quantify emotional pain
• Standard of appellate review?
○ Seffert: Award "shocks the conscience and necessarily implies that the verdict must have been the result of passion and prejudice."
○ N.Y. Statute: Award "deviates materially from what would have been reasonable compensation"

Monetary Guides to Aid Jury


• Per diem? (could we say nonpecuniary damages are 100 dollars a day and we expect the pain to continue for the next 20 years)
○ Should plaintiffs be allowed to use a per diem approach?
 Plaintiffs like this approach because it will likely lead to a larger reward. Plaintiff is able to produce an award in their favor by
changing the amount per day or the number of days to consider
• Risk analysis?
○ As probability of death increases the amount rewarded increases non -linearly.
• Compare to awards in "similar" cases?
○ Tell jury that if it wants to make an award in the top or bottom quartile of past results it must justify that result by poin ting to facts in
its case that tilt the outcome to the high or low side of the range.
 Thus, the middle range (25% - 75%) of prior awards of a similar nature should be given "presumptive" validity
 Unexplained outlier - an award in the top or bottom quartile - constitutes a prima facie case for remittur or additur by the trial
judge or reversal by the appellate court.
○ The problem with this is how do we identify similar cases?
• Awards for future pain and suffering generally not discounted to present value
○ Is this sensible?
 Yes because pain and suffering is so speculative that it does not make much sense to discount pain and suffering to present
value. It doesn't make much sense to discount something imprecise in a precise manner.
McDougald v. Garber
○ Plaintiff was left in a "permanently comatose condition" due to the defendant's malpractice
○ Plaintiff sued and the parties agreed that plaintiff could recover for the usual pecuniary damages but that the plaintiff cou ld not
recover damages for conscious pain and suffering unless she were found to have been aware of experiencing them.
○ The parties disagreed as to whether plaintiff had the requisite level of awareness to support recovery for pain and suffering .
• There are two issues:

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• There are two issues:
○ Whether an award of damages for loss of enjoyment of life to a person whose injuries preclude any awareness of the loss
serves a compensatory purpose
○ Whether loss of enjoyment of life should be considered a category of damages separate from pain and suffering.
• The court held that an award for damages for loss of enjoyment of life to a person whose injuries preclude any awareness does not
serve a compensatory purpose. And that cognitive awareness is a prerequisite to recovery for loss of enjoyment of life but t hat a fact
finder need not sort out varying degrees of cognition.
○ An award of money damages in a circumstance where the victim has no cognitive awareness has no meaning or utility.
○ An award for loss of enjoyment of life " cannot provide such a victim with any consolation or ease any burden resting on
him…He cannot spend it upon necessities or pleasures. He cannot experience the pleasure of giving it away."
○ Its punitive not compensatory
• The court also held that loss of enjoyment should not be considered a category of damages separate from pain and suffering.
○ The majority feels that "suffering" can easily incorporate the frustration and anguish associated with loss of enjoyment of life.
○ That excessive damages would be awarded if separated.
 As evidenced by plaintiffs arguing for separate categories
○ Breaking down nonpecuniary damages into component parts would not make the award more accurate. If anything, the
distortion will be amplified by repetition.
• Rubric for recovery:
○ Majority would allow hedonic (loss of enjoyment of life) damages to be recovered but only as an element of pain and suffering
 Under majority, there would be two awards: one for pecuniary damages and one for pain and suffering which includes loss of
enjoyment of life
○ Dissent would allow pain and suffering to be recovered as one category and hedonic damages to be recovered as separate catego ry.
 So under dissents view there would be three separate awards: one for pecuniary damages, one for pain and suffering, and one
for loss of enjoyment of life
• The majority argues that separating loss of enjoyment of life as its own award will lead to larger rewards for the plaintiff. Even if this is true
that does not necessarily mean that the larger reward is less accurate. The majority has no argument there.
• So the question becomes, which view leads to the most accurate reward of full compensation
• Relevance of victim's awareness:
○ Majority would require some awareness for recovery of damages for pain and suffering, including hedonic damages.
○ Dissent would require awareness for recovery of (1) pain and suffering damages, but not for (2) hedonic damages
 So the dissent agrees with majority in that awareness is necessary for pain and suffering but differs for hedonic damages
○ Both sides agree that a person must have awareness in order to experience pain and suffering.
○ The dissent takes its own view on hedonic damages saying that awareness doesn't matter with loss of enjoyment of life. Regar dless
of awareness, the person lost their enjoyment of life.
• Who has the better argument?
• Only five states permit loss of enjoyment of life as a separate award
• Death Cases
○ Survival actions
 "Loss of life" damages ambiguous
 Representative can recover for the pain and suffering of decedent
○ Wrongful death actions
 Beneficiaries recover for their own loss from the death (what income were they deprived of because of the decedent's death)
 Cannot recover for the pain and suffering of decedent.
 So can beneficiaries recover for any nonpecuniary damages?
 Yes, their own suffering (their own nonpecuniary loss). Such as loss of companionship.
 These actions are always governed by statute

Non-Wage Earners
• Homemaker
○ Pecuniary damages can be awarded for the homemaker's services around the home
○ Courts will allow evidence such as how good a cook the homemaker was in order to decide the amount of damages
○ Courts may evaluate opportunity costs. So if an attorney decides to give up practice and become a homemaker…the opportunity cost
is the difference between the money he would have made as an attorney and the monetary worth of his services. So a court may
conclude that his services as a homemaker must have been worth his salary has an attorney because it was worth giving up his
practice
• Children
○ Plaintiff would argue that the child would have grown up to make a lot of money and they should be entitled to that. The pro blem is
that this is highly speculative
○ Some courts will not allow lost income damages for what a child "was going" to make in the future. Those courts will only al low for
loss of companionship damages.
○ Courts have struggled with this topic
• Employer
○ Could employer recover lost wages from the death of an employee
○ The loss is going to be the marginal value of the services provided by the employee and the costs of finding and training a n ew
employee
○ The general rule is that an employer cannot recover for the loss of an employee
 The justification for that was that it treats the employee like chattel
Collateral Source Rule
• Benefits received by the plaintiff from a source other than the defendant (i.e., a "collateral" source) as a result of the tort do not reduce the
defendant's liability.

Outline Page 41
defendant's liability.
• Justifications?
○ Helps to insure full compensation
 Plaintiff has to pay attorney's fees, often about a third of the award. So if compensation is determined to be $100,000 the
plaintiff will not actually get the $100,000 after paying attorney's fees.
 The difficulty of quantifying pain and suffering may lead to a plaintiff not receiving an award that is fully compensating.
Collateral Source Rule will allow the plaintiff to receive more money…
○ Creates incentives to engage in value -increasing conduct
 It creates an incentive for people to buy insurance
Arambula v. Wells
○ Plaintiff was injured in a rear-end collision.
○ He was employed in a family-owned business and despite missing work because of his injuries, he continued to receive his $2,800
weekly salary
○ Plaintiff sought recovery for lost wages from the defendant.
○ The defendant argued that the plaintiff should not receive damages for lost wages because he received payments by means other
than disability insurance, pension, or from utilizing sick time or vacation time.
○ Further the defendant argued that the plaintiff failed to provide any documentation or demand that the monies received from h is
employer will be required to be reimbursed.
○ The Plaintiff relied on the collateral source rule which allows a plaintiff to recover full damages even if they already rece ived
compensation for their injuries from such "collateral sources" such as medical insurance.
 The court held that the gratuitous payment plaintiff received would not offset his tort recovery
• Gratuitous payments from employer in lieu of wages are subject to the collateral source rule and do not offset the defendant's liability
• Gift presumptively given for benefit of donee (victim)
○ Presumption can be rebutted by showing that donor's intent was to benefit tortfeasor

Question
• Why does application of collateral source rule to gratuitous payments promote the interests served by the rule?
○ If the gratuitous payment didn't apply, then family members would not want to give gifts because that would help the tortfeas or by
reducing the amount they must pay the plaintiff.
○ So by taking away the incentive to provide those gifts, they will no longer give them
○ The rule partially serves to compensate for the attorney's share and does not actually render "double recovery"
○ Pain and suffering damages are hard to calculate so plaintiff probably wouldn't be receiving "double recovery" In those insta nces.
• Plaintiff's needs
○ Gratuitous
 In Kind (in kind benefits are services provided they may be given a monetary worth)
□ Majority: Rule Applies
□ Minority: Rule Does NOT Apply (offset)
 Money
□ Rule Applies if donor intended to benefit victim ( Arambula)
○ Contractual (such as insurance)
 Rule Applies in both cases (no offset)
○ Governmental
 It is unclear. The Rule has applied in some cases but not others.

Notes
• Collateral source rule functions both as substantive rule of damage liability and as rule of evidence
• Can distinguish between two questions:
○ Should the defendant receive the benefit of the payment form the collateral source, so that his liability is reduced? Arambula tells us
no
○ If the defendant's liability is not reduced, may collateral source recover its payment from plaintiff's tort recovery?
 i.e., does collateral source have right of subrogation?
Punitive Damages
Economic Justifications for punitive damages
1. Account for losses suffered by those with incognizable injuries
a. Lets someone recover more than full compensation because of these "incognizable" injuries
2. Account for probability of apprehension and sanction that is less than 1
3. Induce market transactions where wrongdoing constitutes pure coercive wealth transfer
a. Incentive for market transactions and not just "taking" someone elses property
4. Create more efficient civil alternative to criminal prosecutions of minor crimes

Adjustment for Probability < 1

S = L/p
Where:
S = Sanction (penalty)
L=Victim's loss
p=Probability of apprehension and sanction

Expected sanction from wrongdoing = p(S)


Taylor v. Superior Court
Defendant, Stille, had a history of driving while intoxicated (he had previously caused a serious accident while driving drun k, had been

Outline Page 42
○ Defendant, Stille, had a history of driving while intoxicated (he had previously caused a serious accident while driving drun k, had been
convicted of numerous DUIs)
○ Plaintiff was seriously injured in a car accident with Stille while Stille was driving under the influence of alcohol.
○ Plaintiff sought compensatory and punitive damage alleging that Still had "acted with a conscious disregard" for plaintiff's safety
○ Defendant moved to dismiss the claim for punitive damages
 The court held that because of the rules on assessing damages, the goal of deterrence, and the overall severe threat that
intoxicated drivers pose to the public, plaintiffs are allowed to seek punitive damages against intoxicated drivers.
○ It is generally accepted that an award of punitive damages could be based upon a finding of defendant's conscious
disregard of the safety of others.
○ It is clear from the defendant's prior behavior that he consciously disregarded the safety of others.
○ "The allowance of punitive damages in such cases may well be appropriate because of another reason, namely, to deter
similar future conduct…"
• Section 3294 of the Civil Code authorizes the recovery of punitive damages in noncontract cases 'where the defendant has been guilty of
oppression, fraud, or malice, express or implied.'
• Punitive damages are awarded when there are circumstances of aggravation or outrage, such as spite or 'malice,' or a fraudulent or evil
motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called
willful or wanton.
• Does drunk driving justify punitive damages?
• Why would it ever be appropriate to permit both punitive tort damages and criminal sanctions for the same conduct
• There are two economic justifications for permitting punitive damages for drunk driving:
○ Account for losses suffered by those with incognizable injuries
○ Account for probability of apprehension and sanction that is less than 1
• There has to be circumstances of aggravation in order to award punitive damages
• The dissent says we should not impose punitive damages unless it accomplishes something beneficial:
○ And the dissent says it does not because punitive damages would not deter drunk driving
○ It won't deter them because the person will already be facing strong criminal penalties so that the tort punitive damages wou ld be
trivial
• The flip side of this is…every little bit would help to deter.
• This raises the question, why have both criminal sanctions and punitive tort sanctions?
• How do you combine the civil system and criminal system in this case?
• If the optimal punitive penalty is achieved in the civil suit…what criminal penalty should be imposed?
• Double penalties become a problem here
• Is there any harm in allowing the recovery of punitive damages in simple tort cases?
○ It forces people to take too much precaution

Typical Statute
• Punitive damages may be awarded when:
a. There is clear and convincing evidence
b. That the conduct of the defendant is willful, wanton, or in reckless disregard of the plaintiff's rights.
• Comparative Fault
○ Majority view: In a comparative fault state, plaintiff's punitive award should not be reduced to reflect any fault by plainti ff.
• Derivative Cases
○ Some courts hold that punitive damages should not be recoverable in derivative cases (e.g. lost consortium) because injured p arty
was able to recover such damages in main case.
• Employer liability
○ Some states hold that punitive damages flow with vicarious liability
○ Restatement 2d s. 909 : Punitive damages can be awarded against the employer only if::
 Employer authorized the doing and the manner of the act:
 Agent was unfit and the employer was reckless in employing him;
 Agent was acting in a managerial capacity and within the cope of employment; or
 Employer ratified or approved of the act
• Punitive awards are not permitted in cases of death
○ If tortfeasor dies or plaintiff dies, punitive awards are generally not rewarded
• Cannot get punitive damages against a governmental entity
• You can get punitive damages from a products liability case but there needs to be circumstances of aggravation. Such as deliberately
designing a product that would cause severe injury
Potential Constitutional Constraints on Punitive Award

14th amendment:
• "nor shall any State deprive any person of life, liberty, or property, without due process of law;
• "nor deny to any person within its jurisdiction the equal protection of the laws."

• Equal protection
○ E.g., punitive damages may be imposed only on out -of-state residents
• Procedural Due Process
○ E.g., appellate court not permitted to review size of punitive award ( Honda Motor v. Oberg, 1994)
• Substantive Due Process
○ The idea of basic fairness. Its just not fair to impose a punitive damages award of $100 million to plaintiff. Some justice s say there is
no such thing as a right to substantive due process.

Outline Page 43
BMW: Constitutional (Substantive Due Process) Guideposts for awarding punitive damages:
1. Degree of reprehensibility of defendant's conduct;
2. Ratio of punitive award to actual or potential harm inflicted on plaintiff; and
a. No bright line rule
3. Difference between punitive award and civil or criminal penalties that could be imposed for comparable misconduct.
• So what this is telling us is that there is a constitutional constraint on punitive damages but the lines are blurry as to what these constraints
are.
State Farm Mutual Automobile Insurance Co. v. Campbell
○ Campbell was driving with his wife and decided to pass six vans traveling ahead on a two -lane highway
○ Ospital, who was traveling the opposite direction, was forced to swerve off the road to avoid a head -on collision with Campbell.
○ Ospital ended up colliding with a third vehicle driven by Slusher
○ Ospital was killed and Slusher was rendered permanently disabled.
○ Ospital's beneficiaries and Slusher brought a wrongful death and tort action against Campbell and early investigations suppor ted the
conclusion that Campbell had caused the crash.
○ State Farm, Campbell's insurance company, decided to contest Campbell's liability and declined offers by Slusher and Ospital to settle
the claims for the policy limit of $50,000 (25,000 to each)
 The case went to trial and a jury determined Campbell was 100 percent at fault and a judgment was returned for $185,849
(much more than the amount offered in settlement)
 State Farm initially refused to cover the excess liability.
 Campbell then obtained his own counsel to appeal the verdict
 Pending the appeal, Slusher, Ospital, and the Campbells reached an agreement where Slusher and Ospital agreed not to seek
satisfaction of their claims against the Campbells. In exchange the Campbells agreed to pursue a bad faith action against State
Farm and be represented by Slusher's and Ospital's attorneys. The agreement included that Slusher and Ospital would receive
90% of any verdict against State Farm.
○ The court held that under the three guideposts of Gore, it was error to reinstate the jury's $145 million punitive damages
award and that a punitive award in this case should be at or near the amount of compensatory damages.
○ The court admits that State Farm's handling of the claims against Campbell merits no praise but a more modest
punishment for their reprehensible conduct could have satisfied the State's legitimate objectives.
 Instead, the court stated that the trial court incorrectly used this particular case as a platform to expose and
punish the perceived deficiencies of State Farm's operations throughout the country.
 "A State cannot punish a defendant for conduct that may have been lawful where it occurred"
 "Nor, as a general rule, does a State have a legitimate concern in imposing punitive damages to punish a
defendant for unlawful acts committed outside of the State's jurisdiction."
 "Any proper adjudication of conduct that occurred outside Utah to other persons would require their
inclusion, and, to those parties, the Utah courts, in the usual case, would need to apply the laws of their
relevant jurisdiction."
• Gore offers three guideposts when reviewing punitive damages:
○ The degree of reprehensibility of the defendant's misconduct;
 When determining this, courts should consider whether:
□ The harm caused was physical as opposed to economic;
□ The tortious conduct evinced an indifference to or a reckless disregard of the health can safety of others;
□ The target of the conduct had financial vulnerability;
□ The conduct involved repeated actions or was an isolated incident; and
□ The harm was the result of intentional malice, trickery, or deceit, or mere accident.
○ The disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and
○ The difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable c ases.
• Generally state may not impose punitive damages to punish a defendant for unlawful acts committed outside of jurisdiction.
• "Few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process."
Philip Morris (2007)
○ Representative of Jesse Williams, a heavy smoker before his death, sued Philip Morris, manufacturer of Marlboro, in Oregon st ate
court alleging negligence and deceit.
○ Procedural due process "forbids a State to use a punitive damages award to punish a defendant for injury that it inflicts upo n
nonparties or those whom they directly represent, i.e., injury that it inflicts upon those who are, essentially, strangers to the
litigation."
○ Plaintiff argued that harm to others is relevant to reprehensibility.
 Evidence of actual harm to nonparties can help to show that the conduct that harmed the plaintiff also posed a substantial risk
of harm to the general public, and so was particularly reprehensible.
○ But "a jury may not go further and use a punitive damages verdict to punish a defendant on account of harms it is alleged to have
visited on nonparties."
○ "We therefore conclude that the Due Process Clause requires States to provide assurance that juries are not asking the wrong
question, i.e., seeking, not simply to determine reprehensibility, but also to punish for harm caused strangers."
 In other words it is constitutionally impermissible to allow juries to consider harm done to strangers when considering a
punitive award. Harm to others can only be used to show reprehensibility of the defendant.
Cooper Industries (2001)
• "Courts of appeals should apply a de novo standard of review when passing on district courts' determinations of the constitutionality of
punitive damages awards."
○ So the no deference should be given to the trial court. The upper courts must decide for themselves.
Insurance
• Demand for Insurance
Risk aversion:

Outline Page 44
• Demand for Insurance
○ Risk aversion:
 Utility of a certain prospect of money income is considered higher than the expected utility of an uncertain prospect of equal
expected monetary value.
 Risk aversion is implication of declining marginal utility of money income
 Most people are risk averse
□ If the probability of a person getting $1000 was 100%, they would prefer that over a 50% chance of getting $2000.
 The marginal utility of money declines as we get more and more income.
 If a person is risk averse, they will want to purchase insurance in order to know with certainty if an event happens, their
insurance companies will pay.
• Responses to Risk Aversion
a. Purchase market insurance
b. Self-insure
i. May be possible in the right circumstances
ii. The benefit is that you know exactly how much to set aside.
iii. You can "taylor the premium you pay yourself" to exactly how much you want to set aside in the case of an accident.
• Supply of Insurance
○ Explained by law of large numbers, not risk preference
○ The reason they can offer insurance is that if they insure enough risks, what may be risk to you is actually a certainty to t hem. So if
the chance that when State Farm insures a million houses, the chances that 1% will burn down is a certainty.
• Kinds of Market Insurance
○ First-party:
 Coverage for the economic effects of some probabilistic event, such as fire, death, disability, damage to insured's auto.
○ Third-party, or liability:
 Coverage for damages that insured is legally obligated to pay to another
• Problems Facing Insurers
○ Moral hazard
 Incentive the insured has after becoming insured to change his behavior in ways that increase his expected loss. (so originally a
policy may be based on a 1% chance of your house burning down. But once insured, the person may think, hey I have insurance
its ok for me to take less care. Therefore there is now an increased risk that the house may burned down. Say a 3% chance. So
now the premium should be more than it is.
□ Thus, after the individual becomes insured, taking precautions entails a marginal cost but no marginal benefit because he
will be compensated for any loss.
○ Adverse Selection
 When an insurance company evaluates a risk category (say teenage drivers) the category may include those with a probability
of 5% of having an accident up to a 6% of having an accident. They average those saying there is a 5.5% of having an accident.
The premium will be more expensive at this percentage than what is actually should have been for those at 5%. Therefore they
will not buy the premium. However, those at 6% are actually saving money on their premium because their risk is actually
larger than 5.5%. So everyone 5.5 and above will buy the premium. So the riskier people have now bought the insurance
premiums which is adverse to the insurance company
• Responses to Moral hazard
○ Insurable interest
 Whoever takes out the policy must have an insurable interest. You can't take an insurance policy out on someone elses house.
Why would you care if their house burnt down…you would then get to collect on the benefits
○ Deductibles and co-insurance
 Instead of paying $100,000 the insurance company using a deductible would only pay $90,000. so essentially the insured
suffers a $10,000 loss

• Responses to Adverse Selection


○ Deductibles and co-insurance
 If you take a high deductible, you get better premium
 If you take lower, you get worse premium
○ More precise risk categories
• Insurance and Punitive Damages
○ Policy may exclude coverage of loss from conduct triggering punitive damages
○ Otherwise
 Most states force insurer to cover punitive award
 Minority preclude payment by insurer on grounds of public policy
□ Public policy being what's the incentive to avoid the conduct bringing forth the punitive damages if the insurer has to pay
the punitive damages
 Some require insurer to pay, but allow insurer to recover punitive damages against tortfeasor-insured
• 1st Party Insurance, Collateral Source, and Subrogation
○ Common-law rule:
 Plaintiff's first-party insurance benefits are collateral to defendant's liability and therefore are not deducted from defendant's
liability.
Frost v. Porter Leasing Corp
○ Frost was injured in a motor vehicle accident
○ He sued the other driver for medical expenses incurred, pain and suffering, impaired earning capacity and future expenses.
○ Frost received medical expense benefits of $22,700 under a union health insurance plan paid for by his employer.
○ The insurer intervened claiming a right of subrogation from the plaintiff for any of the medical expense damages recovered in the tort
action.

Outline Page 45
action.
○ The insurer, Union Labor, is claiming a right to implied subrogation since there was no previous agreement of subrogation bet ween
the insurer and insured.
○ Whether a group insurer which provides medical expenses to an insured has a right of subrogation in a recovery by the insured
against a tortfeasor even though the insurance policy contains no express provision entitling the insurer to subrogation righ ts.
 The court held that in the absence of a subrogation agreement between the insurer and the insured, an insurer that has paid
medical or hospital expense benefits has no right to share in the proceeds of the insured's recovery against a tortfeasor.
○ Duplicative compensation for the insured is unlikely in this case because he may be faced with property damage, pain and
suffering, and diminished earning capacity, in addition to medical bills.
○ Furthermore, the costs of litigation and the decision to settle may have reduced his overall recovery.
○ Because the right of subrogation should be limited to excessive recovery, and since it is unclear whether the insured has
recovered excessively, there is no implied right of subrogation.
• Arguments for implied right of subrogation:
○ Implied subrogation prevents the insured from obtaining excessive compensation for his losses
○ Also, subrogation returns any excess to the insurer, who can then recycle it in the form of lower insurance costs.
• The court distinguishes property insurance and personal insurance
• In property insurance, there can be an implied right of subrogation
• If its personal insurance (such as life insurance), there is generally no implied right of subrogation
• The idea is that when people buy property insurance…all they really want is to get reimbursed for the loss of whatever property is damaged.
It is easy to quantify.

• Subrogation right may be express or implied


• Implied subrogation often found in property insurance contracts
• Implied subrogation generally not found for personal insurance
• Insurance policies covering medical expenses will be treated as if they are personal insurance policies

Note
• When a third party to the tort (the "subrogee"), such as the insurer, has a right of subrogation, he is subrogated to rights of the subrogor.
• Thus, the subrogee can proceed against:
○ The tortfeasor, if he has not paid a judgment or sometimes when he has paid a settlement; or
○ Tort victim (subrogor), if tortfeasor has paid victim a judgment or settlement

Legal Fees
• When insurer exercises right of subrogation, it must share legal costs incurred by insured in obtaining compensation (a judgment or
settlement) from tortfeasor
Impact of Insurance on Tort Litigation
Lalomia v. Bankers & Shippers Ins. Co.
○ 12-year-old Michael Maddock who was operating a motorized bicycle collided with an automobile being operated by Jean Lalomia.
○ Both Michael and Jean were killed in the accident
○ Lalomia's beneficiaries filed a negligence action against Michael's father claiming he placed a dangerous instrument in the p ossession
of and at the disposal of a 12-year-old boy.
○ Bankers & Shippers Insurance Company had issued two policies of automobile insurance to Daniel Maddock, Michael's father, and it
would only provide coverage for the motorized bicycle if it were held to be an after -acquired "private passenger automobile."
○ Insurance Company of North America had issued a homeowner's policy to defendant Maddock and the policy obligated the insurer to
pay all sums which the insured would become legally obligated to pay as damages because of personal injury or property damage .
○ The policy excluded from its coverage "the ownership, maintenance, operation, use, loading or unloading" of automobiles or
midget automobiles while away from the insured premises.
○ Liberty Mutual Insurance Company had issued a policy to plaintiff Laurence Lalomia, Jean's husband, which provides coverage f or
uninsured automobiles.
○ The court held that the Insurance Company of North America has an obligation under its homeowner's policy since the cause of
action is not related to the "ownership, maintenance, operation, or use" of the vehicle but rather is a theory of negligence
against the defendant.
○ The court also held that Liberty Mutual is liable under the terms of the uninsured motorist endorsement in its policy since the
motorized bicycle is considered an uninsured motor vehicle.
• Key finding
○ Motorbike was a "motor vehicle," but not a "private passenger automobile"
○ Thus:
○ B&S not liable on the third-party provisions of auto insurance policies;
○ Liberty was liable on first-party provision of auto insurance policy that covered damage caused by uninsured motorists; and
○ Insurance Co. could be found liable under homeowner's policy in order to provide more substantial compensation to plaintiff.
○ Does this make sense?
○ Do we think that the premium the insurance company came up with took into account an event such as this (homemade
bicycle causing an accident four blocks from house)?
○ We aren't too concerned with this because the insurance company can make up the losses and future losses such as this
by taking this into account in their premiums (through increasing the costs of premiums) or they can exclude coverage for
these accidents in the future in their agreements.
• Duty to Defend: Litigation Insurance
○ Insurance contracts can exclude the duty to defend
○ Otherwise, if plaintiff asserts even one claim that can rationally be said to fall within the policy coverage, even if not me ritorious,
insurer liable for litigation defense costs.
○ So if even one of those claims are arguably said to fall in the terms of the policy, then the insurance company must defend.

Outline Page 46
So if even one of those claims are arguably said to fall in the terms of the policy, then the insurance company must defend.
• Settlement Strategies
○ "High-low" settlement: Each party wishes to avoid extreme result
○ If Plaintiff is awarded nothing, or less than x (say $100,000), defendant will pay x ($100,000) in settlement
○ If trial result is over y (say $500,000), an amount greater than x, parties will settle for y ($500,00)
○ …..
• "Mary Carter" agreement: Defendant remains in case and guarantees Plaintiff a certain sum
○ Amount depends on plaintiff's success against the other defendant's
○ Danger is that settling defendant may testify in way that helps plaintiff but hurts other defendants.
• Suing Insurer: Hypothetical
○ Insurance policy limit: $100,000
○ Tort plaintiff's claim against insured: $4,000,000
○ Plaintiff's settlement offer: $100,000
○ Insurer's litigation cost: $50,000
○ Insurer's settlement transaction cost: 0
○ Insurer's Interest: Settle only if it assesses the probability of plaintiff prevailing at above 50%.
○ E.g., if probabiliy of plaintiff winning is 60%, the expected cost of litigating is: .6($100,000) + 50,000 = 50,000 110,000.
○ At 50% probability, insurer is indifferent between settling and litigating:
○ If the insurer litigates: Cost to insurer…..
○ Basically if the probability of the P winning is 50% the insurer is indifferent to settling or litigating because they will p ay the same.
However, at that same percentage, the insured will want to settle because their cost is much higher.
○ Result: Agency problem, or principal -agent problem: Interests of agent diverge from interests of principal.
Bad Faith Standard for Insurance Co.
Pavia v. State Farm Mutual Automobile Insurance Co.
a. Carmine Rosato, a 16-year-old, was driving his mother's car insured by State Farm with a $100,000 liability limit.
b. One night, in an effort to avoid a double -parked car while turning a corner, he collided with a car driven by Amerosa.
c. Pavia, the 19-year-old plaintiff, who was a passenger in the car, was severely injured.
d. Pavia commenced a personal injury action against the Rosatos and Mr. Amerosa.
e. A preliminary investigation by a State Farm representative led to the conclusion that the Rosatos were 100% liable for the ac cident.
f. Later, in a deposition, Carmine Rosato led State Farm to believe that the double -parked car may have been backing up, suggesting
that Rosato's quick maneuvering may have been justified under an "emergency defense."
g. Also, that witnesses not previously identified could support this testimony
h. Without reading Rosato's deposition, plaintiff's counsel demanded a settlement for the full $100,000 policy limit and require d
acceptance of the offer within 30 days.
i. State Farm ignored the demanded settlement and instead pursued an investigation of the potential defenses from Rosato's
deposition.
j. Turns out that the witnesses alluded to in his deposition could not be found and State Farm decided to make an offer to pay t he
$100,000.
k. Plaintiff rejected State Farm's offer and the case went to trial.
i. The trial jury returned a verdict in the amount of $6,322,000 attributing 85% of the fault to Rosato and 15% to Amerosa.
ii. The Supreme Court reduced the verdict to $5,000,000 and upon plaintiff's stipulation, the Appellate Division reduced the
verdict to $3,880,000.
iii. The Rosatos and the plaintiff then entered into an agreement that the Rosatos would assign all causes of action they might have
against State Farm to the plaintiff in exchange for the plaintiff not executing the excess portion of the judgment against the
Rosatos.
iv. The Rosatos and plaintiff commenced an action alleging that State Farm acted in bad faith by "failing to accept plaintiff's policy
limits settlement offer within a reasonable time despite the clear liability and obvious damages exceeding the policy limits."
○ What is the appropriate standard for the showing of bad faith on the part of an insurance company?
○ Did the plaintiff present a prima facie case of bad faith on the part of State Farm under that standard?
○ The court held that the plaintiffs failed to establish a prima facie case of bad faith
○ The "defendant's failure to respond to the letter and overall delay under the circumstances of this case
cannot serve as a basis for recovery."
○ "Permitting an injured plaintiff's chosen timetable for settlement to govern the bad faith inquiry would
promote the customary manufacturing of bad faith claims, especially in cases where an insured of meager
means is covered by a policy of insurance which could finance only a fraction of the damages in a serious
personal injury case."
○ The plaintiff's time limited settlement came at a relatively early point in the litigation
○ At the time of the settlement demand, there were still several significant questions about the insured's
liability, which defendant was entitled to investigate and explore.
○ "State Farm should not be penalized fro the delay in processing the claim and offering the full policy limits in
settlement which resulted from its pursuit of an investigation prompted by its insured's representations
which ultimately did not materialize."
○ State Farm's failure to promptly respond did not amount to more than ordinary negligence.
• Insured must establish the insured's "bad faith."
• To establish a prima facie case of bad faith, plaintiff must establish that insurer's conduct constituted a "gross disregard" or the insured's
interests - that is, a deliberate or reckless failure to place on equal footing the interests of its insured with its own interests when
considering a settlement offer.
• To establish bad faith, plaintiff "must establish the defendant insurer engaged in a pattern of behavior evincing a conscious or knowing
indifference to the probability that an insured would be held personally accountable for a large judgment if a settlement offer within the
policy limits were not accepted."
• In applying this standard, plaintiff must show that insured lost an actual opportunity to settle the claim at a time when all serious doubts

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about the insured's liability were removed.
• The plaintiff's timeline on how long the insurance company has to settle does not dictate bad faith on the part of the insurance company.

• Alternative Standards
○ Insurer is liable for the excess if it is negligent in rejecting the settlement offer
 Bad Faith Standard would lie here. Harder to prove then negligence, easier to prove then one below
○ Insurer is liable only if it acts with an "intentionally harmful, dishonest, or disingenuous motive"
○ Insurer is strictly liable for the excess if it rejects a settlement offer
• The bad faith standard is the common standard
• Failure to Settle Above policy limits
○ Analogous problems arise when plaintiff's lowest settlement demand exceeds the policy limits, where verdict may be much large r still
 E.g., modify earlier example by assuming that the settlement offer is $200,000 when the insurance policy limit is $100,000.
○ Insurer may be held liable for failing to offer insured chance to pay something….
INTENTIONAL HARM
Common Intentional Torts (these will be discussed)
1. Assault
2. Battery
3. False imprisonment
4. IIED
Intent
Garratt v. Dailey
○ The plaintiff, Ruth Garratt is alleging that five year old defendant, Brian Dailey, committed battery.
○ There are two conflicting sets of facts. The plaintiff alleges that five year old Brian Dailey deliberately pulled her lawn chair out from
under her when she went to sit down.
○ Brian claims that some time prior to the plaintiff trying to sit down, he moved the lawn chair sideways a few feet and seated himself
in the chair.
 He then noticed that the plaintiff was about to sit down where the chair had been and before he could move the chair back, the
plaintiff fell to the ground
○ Both sides agree that the plaintiff fractured her hip and had other painful and serious injuries.
 Did Brian have the requisite intent?
○ The court held that the case should be remanded for clarification of the findings to specifically cover the question if Brian
had knowledge that the plaintiff would attempt to sit down where the chair used to be.
○ "A battery would be established if, in addition to plaintiff's fall, it was proved, that when Brian moved the chair, he
knew with substantial certainty that the plaintiff would attempt to sit down where the chair had been"
○ "The mere absence of any intent to injure the plaintiff or to play a prank on her or to embarrass her, or to commit
an assault and battery on her would not absolve him from liability if in fact he had such knowledge."
What Intent is required for liability?
1. To cause harm?
2. To cause embarrassment?
3. To move the chair?
4. To commit a battery?
5. To produce contact with the ground?
• The requisite intent here is intent to product contact with the ground (not the other 4)

R3 (draft) s. 1: Intent
• A person acts with the intent to produce a consequence if:
○ The person acts with the purpose of producing that consequence; or
○ The person acts knowing that the consequence is substantially certain to result.
(What varies is the consequence)

R2 s. 8A: Intent
• "Intent" denotes:
○ That the actor desires to cause the consequences of his act; or
○ That he believes that the consequences are substantially certain to result from it
• Garrat: Questions
○ What if Brian knew that Ruth would attempt to sit where the chair had been, but believed she would realize her mistake before losing
her balance and catch herself before hitting the ground?
 If we believe his story then he doesn't satisfy intent as stated in R2 and R3
○ What if Brian knew that Ruth would hit the ground, but did not believe that Ruth would be injured or even offended?
○ What if P satisfy her burden by proving that a reasonable 6-year-old would know that P would suffer a harmful fall?
 Presenting this to a jury would be permissible evidence to persuade the jury but Brian can still argue that even though a
reasonable 6-year-old would know, he didn't know and therefore should not be liable
• Hypo
○ Suppose a railroad knows that, because of the scale of its operations, 50 people per year will be killed at its grade crossin gs.
 This can't be an intentional tort…even though the railroad knows with substantial certainty people will be killed…there isnt
much they can do.

R3 (draft) s. 2: Recklessness
• A person acts recklessly in engaging in conduct if:

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R3 (draft) s. 2: Recklessness
• A person acts recklessly in engaging in conduct if:
○ The person knows of the risk of harm created by the conduct tor knows facts that make the risk obvious to another in the pers on's
situation; and
○ The precaution that would eliminate or reduce the risk involves burdens that are so slight relative to the magnitude of the r isk as to
render the person's failure to adopt the precaution…
• Spectrum of Culpability
○ B> PL : No-fault (strict liability)
○ B<PL : Negligence
○ B much < PL : Recklessness/ gross negligence
 Defendant incurs a cost to commit the tort (the simple answer is, don't go out of your way to commit a tort)
 So in reference to the railroad, the railroad company surely is not incurring any costs that make it likely people will die.
○ -B < PL : Intentional Tort
• Two principle differences between simple negligence torts and recklessness/gross negligence
○ Punitive damages are not awarded for simple negligence torts.
 If punitive damages were awarded, this would be an incentive to take too much precaution even for the simplest torts. This
would create too great a burden on society
○ Punitive damages are awarded for recklessness
 You can't take too much precaution against a tort committed with recklessness (intentional). There is no such thing as two
great a burden for an intentional tort
• Contributory negligence is a nonfactor for an intentional tort...
• A majority rule is that a defendant's insanity does not establish a defense to liability. That rule reflected a policy decision "to impose liability
on an insane person rather than leaving the loss on the innocent victim."
Assault and Battery
R2 s. 13: Battery: Harmful Contact
An actor is "subject to liability to another for harmful contact battery if:
○ He acts intending to cause:
 a harmful or offensive contact with the person of the other or a third person; or
 An imminent apprehension of such a contact; and
○ A harmful contact with the person of the other direct or indirectly results."

R2 s. 16: character of intent necessary


• "If an act is done with the intention of inflicting upon another an offensive but not a harmful bodily contact, or of putting another in
apprehension of either a harmful or offensive bodily contact, and such act causes a bodily contact to the other, the actor is liable to the
other for a battery although the act was not done with the intention of bringing about the resulting bodily harm….

R2 s 21: Assault
An actor is subject to liability to another for assault if:
○ He acts intending to cause:
 A harmful or offensive contact with the person of the other or a third person; or
 An imminent apprehension of such a contact; and
○ The other is thereby put in such imminent apprehension.
Picard v. Barry Pontiac-Buick, Inc.
○ During an annual inspection, defendant dealer informed plaintiff Picard that the brakes on her mother's automobile would have to be
replaced.
○ Plaintiff then took the vehicle to a repair shop where it passed inspection.
○ The Plaintiff was upset with the dealer's work and contacted a local television news "troubleshooter" reporter.
○ The dealer called the repair shop and requested that the car's inspection sticker be pulled because it had bad brakes
○ Ultimately, the plaintiff returned to the repair shop with the car along with representatives of the dealer.
○ The plaintiff took photographs of an employee of the dealer while he inspected the brakes.
○ From here there were two sets of conflicting facts:
 The plaintiff testified that the employee lunged at her and spun her around
 The defendant claimed that he merely walked up to the plaintiff and placed his index finger on the camera and said "who gave
you permission to take my picture?"
○ The Plaintiff also claimed to have suffered permanent damage in her back
○ She filed an assault and battery action against the defendant employee
 The court held that the defendant assaulted the plaintiff
○ The defendant admitted approaching the plaintiff and photographs clearly showed the defendant pointing his finger at
plaintiff as he approached.
○ The court felt that the plaintiff's apprehension of imminent bodily harm was reasonable at that point.
 The court held that the defendant committed a battery against the plaintiff
○ Even if the defendant did not intend to touch or injure plaintiff, the defendant's contact with the camera clutched in
plaintiff's hand was sufficient to constitute a battery.
○ "The defendant failed to prove that his actions were accidental or involuntary."
• Under the plaintiff's theory that defendant shoved her:
○ That would be enough for a battery because first he intended to at the very least to cause an offensive contact and
○ Second a harmful contact resulted
• Under the defendant's argument where he only put his finger on the camera:
○ That would still be enough for a battery because he intended to cause an imminent apprehension of an offensive contact (walke d
toward her pointing his finger)
Then he made contact with her camera which is an indirect contact with her.

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○ Then he made contact with her camera which is an indirect contact with her.

Is there a difference between fear and apprehension?


○ "It is not necessary that the other believe that the act done by the actor will be effective in inflicting the intended conta ct upon him.
It is enough that he believes that the act is capable of immediately inflicting the contact upon him unless something further occurs."
○ "Therefore, the mere fact that he can easily prevent the threatened contact by self -defensive measures which he feels amply capable
of taking does not prevent the actor's attempt to inflict the con…

6. How imminent must contact be?


7. May an assault consist of words alone?
a. Almost always words are accompanied by some gesture
b. Courts are very reluctant to recognize actions where the only evidence is words

Criminal vs. Civil Assault


• Criminal assault
○ Victim need not have an apprehension or fear of contact; and
○ D must have the ability to injure victim
• Civil assault (tort)
○ Victim must have an apprehension of contact; and
○ D need not have the actual ability to carry out the threatened action

Intent Toward A Effect on B (and liability for)


Assault Assault
Battery (harmful) Battery (harmful)
Battery (offensive) Battery (offensive)
False imprisonment False Imprisonment
• Any one of column one (toward A) along with any one from column two (effect on B) will satisfy the tort
Offensive Contact Battery
Wishnatsky v. Huey
○ Defendant Huey, an assistant attorney general, was engaged in conversation with attorney Peter Crary in Crary's office.
○ Wishnatsky, the plaintiff, without knocking or announcing his entry attempted to enter the office but Huey pushed the door cl osed,
which pushed Wishnatsky back into the hall.
○ Plaintiff brought an action against Huey seeking damages for battery
 The court held that while Huey's conduct may have been "rude and abrupt" it did not rise to the level of battery.
○ "The bodily contact was momentary, indirect, and incidental."
○ "An ordinary…not unduly sensitive" person would not have been offended by Huey's response to the intrusion."
○ Therefore, Huey's conduct would not "be offensive to a reasonable sense of personal dignity."
• A contact occurred, this is not the issue
• The question is, what is the nature of the contact
• Battery can be actionable without physical injury. Remember, harmful contact battery is only one type of battery.
• For a contact to be offensive, it must be offensive to a reasonable person.
• Here the court labels the plaintiff as being overly sensitive.
• The court held that a reasonable person would not have been offended to the level that the plaintiff was offended.
• The court tells us that offensive contact is an objective standard. Would a reasonable person be offended by this contact?
• What constitutes offensive contact?
○ A bodily contact is offensive if it offends a reasonable sense of personal dignity

Actionable Battery: 3 things must happen

Defendant acts with "intent" (purpose of knowledge) -----> Contact ----->Plaintiff finds contact offensive or harmful;
if offensive to plaintiff, that reaction must be reasonable
There is no reasonable person standard if plaintiff was injured
(this goes back to the eggshell plaintiff rule)
Questions:
1. What if D believed that P would find contact welcome, but P was offended?
○ Objectively, some would be offended, others not
○ The defendant did not act with the intent (purpose or knowledge) to offend or harm plaintiff.
○ At the same time, should we expose the plaintiff to this unwanted contact?
2. What if a reasonable person would not find contact offensive, but D knew that P would be offended?
○ Here we satisfy the intent requirement except that this offensive contact would not have been offensive to an ordinary person .
○ So what is the point of the objective standard?
 The law does not want to make a person liable for something that is well known to not be offensive
○ The law is not clear with a scenario such as this
3. Can there be a battery without an assault?
○ Yes, you can have an offensive or harmful contact without an apprehension of the contact occurring.
○ It is more likely that there will be an assault without a battery. However, if you sneak up behind someone and injury them…y ou
committed a battery but not an assault.

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committed a battery but not an assault.
False Imprisonment
• "The common law tort of false imprisonment is defined as an unlawful restraint of an individual's personal liberty or freedom of
locomotion."
• "Imprisonment has been defined as 'any unlawful exercise or show of force by which a person is compelled to remain where he does not
wish to remain or to go where he does not wish to go.'"
• "In order for a false imprisonment to be present, there must be actual or legal intent to restrain."
• "Unlawful restraint may be effected by words alone, by acts alone or both; actual force is unnecessary to an action in false imprisonment."
• "Restatement (Second) of Torts specifies ways in which an action may bring about the confinement required as an element of false
imprisonment, including:
○ Actual or apparent physical barriers;
○ Overpowering physical force or by submission to physical force;
○ Threats of physical force;
○ Other duress; and
○ Asserted legal authority."
• "It is essential, however, that the confinement be against the plaintiff's will and if a person voluntarily consents to the confinement, there
can be no false imprisonment."
• "Moral pressure, as where the plaintiff remains with the defendant to clear himself of suspicion of theft, …, is not enough; nor, as in the
case of assault, are threats for the future."
• "Any remedy for such wrongs must lie with the more modern tort of the intentional infliction of mental distress."
○ Lopez v. Winchell's Donut House
i. Employees of defendant's donut shop, Cesario and Bell, asked plaintiff, also and employee, to accompany them to the baking
room
ii. Cesario and Bell told the plaintiff they had proof that she was stealing money during transactions with customers.
iii. Cesario and Bell did not force her into the room or to answer their questions.
iv. They did not threaten to fire her or make any other threat towards her.
v. The plaintiff left the room when she first decided to do so.
vi. Plaintiff filed suit against the defendant corporation alleging false imprisonment
○ The court held that the plaintiff did not provide any evidence to support an action of false imprisonment.
○ "It is not enough for the plaintiff to have felt 'compelled' to remain in the baking room in order to protect her
reputation."
○ There was no evidence that the plaintiff yielded to constraint of a threat or to physical force.
○ There was also no evidence that plaintiff accompanied the defendant's employees against her will and she could
have left the room at any time she pleased.
R2: Means of "Imprisonment"
1. Actual or apparent physical barriers
a. The "little latch" in this case could be considered a barrier but it is doubtful it would be considered an actual barrier in this case
because she could easily open the latch.
2. Overpowering physical force, or by submission to physical force
3. Threats of physical force
a. This can be extended to other people (family)
4. Other duress
a. This is often a troublesome element
5. Asserted legal authority
• Does the protection of one's reputation fall under "other duress?"
○ Duress is basically doing something because you are under pressure
○ The court says moral pressure to avoid the cost of damaging one's reputation is not enough to fall under "other duress."
• If she claimed that she was "under duress" because he felt if she walked out she would lose her job is that enough?
○ Probably not. This is similar to reputation.
• So what is enough to satisfy "other duress?"
○ If economic consequences aren't enough
○ If reputation consequences aren't enough
○ If marriage consequences aren't enough…what is?
○ We do not quite know what is enough
○ Perhaps it is their for a safety valve to include some extreme circumstances not accounted for by the other parts…
• False Arrest
○ Kind of false imprisonment that results from arrest by one not legally entitled to make arrest
○ In most states, for a valid citizen's arrest:
 Must be a crime;
 Offense must be committed in the citizen's presence; and
 Person arrested must be guilty (the risk of the mistake is on the arrester)
• Malicious prosecution
○ The groundless institution of criminal proceedings against the plaintiff
○ Limited civil analog for wrongfully instituting civil action
Intentional Infliction of Emotional Distress
• The court provided four elements that must be present to have a cause of action for emotional distress unaccompanied by physical injury:
○ The wrongdoer's conduct was intentional or reckless
 "This element is satisfied where the wrongdoer had the specific purpose of inflicting emotional distress or where he intended
his specific conduct and knew or should have known that emotional distress would likely result."
○ The conduct was outrageous and intolerable in that it offends against the generally accepted standard of decency and morality .
"this requirement is aimed at limiting frivolous suits and avoiding litigation in situations where only bad manners and mere hurt

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The conduct was outrageous and intolerable in that it offends against the generally accepted standard of decency and morality .
 "this requirement is aimed at limiting frivolous suits and avoiding litigation in situations where only bad manners and mere hurt
feelings are involved."
○ There was a causal connection between the wrongdoer's conduct and the emotional distress
○ The emotional distress was severe
Womack v. Eldridge
a. The defendant, Eldridge, had been employed by Seifert and his attorneys to obtain a photograph of the plaintiff to be used as
evidence.
b. Seifert was charged with sexually molesting two young boys and the plaintiff had been present at the place where he was arres ted.
c. I suppose Seifert wanted to use the photo as a defense to see if he could put the crime on the plaintiff
d. Defendant posed as a journalist and asked for plaintiff's picture to be used in a publication
e. Seifert's attorney showed plaintiff's photograph to the two young boys and asked if he was the one who molested him. They re plied
that he was not.
f. However, the Commonwealth's Attorney inquired about the plaintiff and made him appear in court as a witness.
g. In Plaintiff's action for intentional infliction of emotional distress, he testified that he suffered great shock, distress a nd nervousness
because of defendant's fraud and deceit and her wanton, willful and malicious conduct in obtaining his photograph and turning it over
to Seifert's attorney to be used in court.
 The court held that jury verdict should be reinstated because a jury could conclude from the evidence that defendant willfully,
recklessly, intentionally and deceitfully obtained plaintiff's photograph for the purpose of permitting her employers to use it as
a defense in a criminal case without considering the effect it would have on the plaintiff.
○ "A reasonable person should have recognized the likelihood of the serious mental distress that would be caused in
involving an innocent person in child molesting cases."
○ "If the two boys had hesitated in answering that the man in the photograph was not the one who had molested them, it is
evident that the finger of suspicion would have been pointed at the plaintiff."
• The case of actionable intentional infliction of emotional distress "is one in which the recitation of the facts to an average member of the
community would arouse his resentment against the actor, and lead him to exclaim, 'outrageous!'"
• Outrageous Conduct:
○ Conduct that offends against the generally accepted standards of decency and morality
• Is it outrageous to show a photo of someone you know not to be the criminal to the victims with the hope the victims will identify the
person as the criminal?
○ It could be
• Is it outrageous to misrepresent oneself in order to obtain a photo?
○ Not so much. It is a lie but it probably isn't outrageous.
• Is it the prosecutor who is acting outrageously by making the man appear in court as a witness?
○ However, you can't sue the prosecutor because he has immunity.
○ Chances are it was the prosecutor if anyone that acted outrageously because he called in the man that had nothing to do with the
case and made him a witness.
Intent
• According to the court, what kind of intent is necessary for IIED?
○ A desire, or purpose, to inflict emotional distress; or
○ A desire to do the outrageous act plus actual or constructive knowledge (knew or should have known) that emotional distress w ould
result.

Objective standard at odds with subjective nature of intent. The "should have known" part is a mistake that courts often mak e. This
"should have known" is objective.

Severity of emotional distress


• Generally same standard as in negligent infliction of emotional distress
○ Some states require physical manifestations
• But cases tend to merge outrageousness of D's conduct with severity of P's emotional distress, requiring more evidence of outrageousness
the weaker the evidence of distress.

Racial Harassment: Statutory Claims


• 42 U.S.C. s 1981
○ Equal rights "to make and enforce contracts"
○ Unlimited punitive damages
• Title VII of the Civil Rights Act of 1964
○ Total monetary damages (compensatory and punitive) caped according to employer's size
○ Title VII only has to do with discrimination in the workplace

Title VII
• "unlawful employment practice for an employer… to discriminate against any individual with respect to his compensation, terms,
conditions, or priv…because of race, sex…

Kinds of Title VII Sexual Harassment


• Quid pro quo
○ Employment benefits are actually conditioned on sexual favors
 If a threat of adverse employment action is made contingent on sex and sex is refused, threat is carried out
 If beneficial work condition (e.g. promotion) is offered in exchange for sex, sex is given, and benefit is not thereafter bestowed
(i.e., "contract' is breached)
 If beneficial work condition is offered in exchange for sex, sex is given, and benefit is bestowed (i.e., "contract' is performed),

Outline Page 52
whether there is a quid pro quo claim is not clear
□ May fit more comfortably as hostile work environment claim, but then pervasiveness and repetition become relevant.
 Analogously, imagine case in which adverse work condition is threatened if sex is not given, sex is given, and adverse work
condition is not imposed (i.e., "contract" is performed)
• Hostile work environment
○ Meritor Savings (1986): Unwelcome sexual advances that create an offensive or hostile working environment violate Title VII
○ When the workplace is permeated with "discriminatory intimidation, ridicule, and insult that is sufficiently pervasive to alt er the
conditions of the victim's employment and create an abusive working environment title VII is violated.
○ Objectionable conduct must be severe or pervasive
○ Courts tend to recognize a trade -off between severity and pervasiveness

Harris (1993)
○ So long as a work environment "(1)would reasonably be perceived and (2) is perceived as hostile or abusive, there is no need for it
also to be psychologically injurious" for Title VII violation
 Has objective and subjective components
○ Whether an environment is hostile, or abusive, can be determined only by looking at all circumstances, including:
 Frequency;
 Severity;
 Whether the conduct is physically threatening or merely an offensive utterance; and
 Whether the conduct unreasonably interferes with an employee's work performance.

Question
○ Is the "objective" standard the reasonable "person" or the reasonable "woman" (or man)?
 Is there a difference?
 From the standpoint of the victim you want to adopt a reasonable woman or reasonable man standard
 From the standpoint of the defendant, a reasonable person standard would want to be used because what is reasonable to a
man may not have been reasonable to a woman. So a male defendant would want reasonable person not reasonable woman.
 The supreme court decided it is the "reasonable person" standard
 The results of these cases are heavily fact specific.
 The workplace must be hellish, not just unpleasant.

Employer's vicarious liability


• Prima facie liability: Employer is prima facie vicariously liable to a victimized employee for discrimination, whether categorized as quid pro
quo or hostile work environment, when discrimination is caused "by a supervisor with immediate or successively higher authority over the
employee."

○ A possible defense: no tangible employment action


 When no tangible employment action (i.e., "a significant change in employment status, such as hiring or firing) "employer may
raise an affirmative defense that
□ Employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and
□ Employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer
○ No defense possible: tangible employment action
 When supervisor's harassment culminates in a tangible employment action, no affirmative defense is available
□ The employer is vicariously liable.

So the court gives the employer an opportunity to escape liabilty.

Intentional Interference With Family Relationships


• Most cases have to due with spousal interference
• Early Common-law actions
○ Writ of ravishment
 Could be obtained by husband if D took wife forcibly or eloped with her
○ Enticement
 Action against one how (1) without justification and for purpose of disrupting marital relationship, influenced or assisted one
spouse to separate or remain apart from other spouse….
○ Criminal conversation
 Sexual intercourse between a third-party and a husband and wife
○ Alienation of affections
 Brought by husband against third-party who caused his wife to become disenchanted with their marriage (no sexual intercourse
was needed unlike criminal conversation)

• Later History
○ Criminal conversation
 Some 20 states have abolished action entirely
 Other states have extended it to wives (by statute or common law)
○ Alienation of affections
 At least 39 states have abolished action by heart-balm statutes or judicial decision
□ Statutes also abolish (1) breach of promise to marry and (2) seduction (action by parents based on sexual intercourse with
child)
 Some states abolish criminal conversation but retain alienation of affections

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• Question
○ Why have many states abolished common-law actions for criminal conversation and alienation of affections?
 If these are things that people would pay to avoid…there are real injuries suffered from these actions. So why would we want
to abolish them?
□ Do we really want courts to get in the messy details of an affair?
□ Are formal causes of actions suited for these kinds of claims?
□ Societal attitudes have changed. Perhaps it is not as serious an injury than 30 years ago
□ Alienation of affections have been abolished by more states because it is not as clear
McDermott v. Reynolds
a. McDermott sued Reynolds for intentional infliction of emotional distress based on Reynolds' alleged conduct in maintaining an
adulterous relationship with McDermott's wife.
b. McDermott accused Reynolds of deliberately flaunting his relationship with McDermott's wife outwardly causing McDermott to su ffer
severe emotional distress.
• The statute at issue in this appeal, Code s. 8.01-220, provides:
○ Notwithstanding any other provision of law to the contrary, no civil action shall lie or be maintained in this Commonwealth for
alienation of affection, breach of promise to marry, or criminal conversation upon which a cause of action arose or occurred on
or after June 28, 1968.
○ No civil action for seduction shall lie or be maintained where the cause of action arose or accrued on or after July 1, 1974
□ The court held that to be in accordance with the legislative intent of the statute, McDermott's IIED action should be
barred because the nature of the IIED claim is that of a claim for the barred alienation of affections.
○ "We conclude that when the legislature enacted [the statute], it manifested its intent to abolish common law
actions seeking damages for a particular type of conduct, regardless of the name that a plaintiff assigns to that
conduct."
○ "The essential basis of McDermott's claim is that the defendant had an adulterous relationship with McDermott's
wife, which he continued in an open and notorious manner after being confronted by McDermott. This alleged
conduct is precisely the type of conduct that the legislature intended to exclude from civil liability when it enacted
[the statute]."
○ "We must consider the nature of the cause of action pleaded, not merely its form, in determining whether a
plaintiff has stated a cause of action that will permit recovery of damages for the conduct alleged."
• Plaintiff brings an IIED claim so as to get around the abolishment of alienation of affections
• Why is it that this statute abolished plaintiff's IIED claim?
○ Because the conduct alleged would have supported action for alienation of affection (explicitly barred by Code)
• But see Rafftery (4th Circuit): code does not bar action for IIED based on conduct with "overtones of affection alienation" because the two
torts have different elements.
• Which position is stronger?
○ McDermott is probably stronger because if it is not followed, there is a large loophole in what the legislature was intending. The cou rt
would still be getting involved in these messy "affair" type relations which is what the legislature wanted to avoid.
• What element necessary for IIED is not necessary for alienation of affections
○ Extreme and outrageous conduct on part of the defendant
• Was the D's conduct "outrageous"
○ Hard to say. What kind of "flaunting" would be considered outrageous?
• Is a discreet affair "outrageous?"
○ Hard to say. It doesn't seem as bad as "flaunting" but the nature of an affair could be considered outrageous.
○ This is the problem here. What does outrageous mean?
○ If any extra martial affair would be considered outrageous, then alienation of affections and IIED would be the same action.
• What if affair injures P's relationship with children?
○ Some courts have said that if the P can prove some obstruction with children, then they will allow a cause of action.
Hustler Magazine v. Falwell
a. Hustler magazine featured a "parody" of an advertisement on the inside front cover of one of their issues that contained the name
and picture of Jerry Falwell.
b. The advertisement portrayed Falwell and his mother as drunk and immoral, and suggested that Falwell is a hypocrite who preach es
only when he is drunk.
c. Falwell sued Hustler and publisher Larry Flynt for libel, invasion of privacy, and intentional infliction of emotional distre ss.
d. Whether a public figure may recover damages for emotional harm caused by the publication of an ad parody offensive to him, an d
doubtless gross and repugnant in the eyes of most.
i. The court held that public figures and public officials may not recover for the tort of IIED by reason of publications such as the
one at issue without showing in addition that the publication contains a false statement of fact which was made with 'actual
malice,' with knowledge that the statement was false or with reckless disregard as to whether or not it was true.
• What kind of injury can you suffer from reputational damage?
○ Lost esteem in community
○ Lost wages (fired from job)
○ Emotional distress (people won't associate with you anymore…)
• An IIED claim and defamation can go hand in glove…Sometimes people cannot sue for defamation because they do not meet constitutional
requirements, so they sue for IIED and if they recover, essentially the standard for defamation is useless. The plaintiff still recovered from
the speech….
• Hustler published an offensive parody of an ad that originally was based on "the first time" a particular celebrity drank Compari liqueur
• Parody ad implied that Falwell's "first time" was during a drunken incestuous rendezvous with his mother in an outhouse
• In order to recover for defamation there must be false assertion of fact that the audience would take to be fact. No one would take this
parody as fact. However their might be a claim for IIED.
• Holding

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○ A public figure may not recover for IIED based on an offensive publication unless the plaintiff proves that:
 Reasonable persons would interpret the offending statements as actual facts; and
 The statements of fact were false and made with "actual malice", that is:
□ Knowledge of falsity; or
□ Reckless disregard for truth or falsity
• So essentially, the court adopts the standard for defamation so there will be continuity in the standards.

Defenses and Privileges


Consent
• 99.9% of consent cases will arise out of a battery
• Courts tend to talk about consent as if it were a defense.
• This influences burden of persuasion. As an affirmative defense, the defendant would have the burden of persuasion
Defenses and Privileges
Hart v. Geysel
○ Plaintiff's decedent and defendant engaged in a prize fight and the plaintiff died after being struck by a blow from defenda nt.
○ A statute made the fight illegal
○ And the complaint did not allege that the fight was undertaken in anger nor was there malicious intent to seriously injure or was
there excessive force
○ Majority rule:
○ "where the parties engage in mutual combat in anger, each is civilly liable to the other for any physical injury inflicted by him
during the fight. The fact that the parties voluntarily engaged in the combat is no defense to an action by either of them to
recover damages for personal injuries inflicted upon him by the other."
○ Minority rule:
○ "Where parties engage in a mutual combat in anger, the cat of each is unlawful and relief will be denied them in a civil action; at
least, in the absence of a showing of excessive fore or malicious intent to do serious injury upon the part of the defendant."
 The court held that the plaintiff could not recover because he expressly consented to and engaged in the fight.
○ "It is sufficient to say that in our opinion one who engaged in prize fighting, even though prohibited by positive law, and
sustains an injury, should not have a right to recover any damages that he may sustain as the result of the combat, which
he expressly consented to and engaged in as a matter of business or sport."
○ "There is further principle, applicable not only in tort law but throughout the whole field of law, and perhaps more
conspicuously in other subjects, to the effect that no man shall profit by his own wrongdoing."
• One who engages in prize fighting, even though prohibited by positive law, and sustains an injury, does not have a cause of action against
the other fighter because he consented
• Street Fight
○ Majority rule; both parties can recover from one another
○ Minority rule: Neither party can recover from the other
• Why does the court prefer the minority rule?
○ The public interest Is what will deter street fighting?
○ Second public interest, the public does not want to incur costs through administrative costs of court cases about street figh ting
• Note
○ Consent may be expressed or implied by words, actions, or circumstances
○ Key is whether D reasonably believed P gave consent, not whether P reasonably believed he gave consent or intended to consent
○ The focus is on what the D believed. Not what the P thought
○ Why focus on D?
 This could prove intent. If D knew plaintiff did not consent but did it anyways…the D has intent. If D thought plaintiff
consented, then D lacked intent.
Courvoisier v. Raymond
○ Some rowdy men entered defendant's building after midnight without permission
○ The defendant fired some warning shots to chase away the men but they gathered in the street in front of his building
○ Two sheriffs and the plaintiff heard the shots and the two sheriffs started arresting the rowdy men
○ The plaintiff proceeded toward the defendant calling out that he was an officer but the defendant, believing that the plainti ff was one
of the rioters , shot the plaintiff.
○ Where a defendant attempts to justify on a plea of necessary self -defense, he must satisfy the jury, not only that he acted honestly in
using force, but that his fears were reasonable under the circumstances, and also as to the reasonableness of the means made use of.
 The court held that the jury was improperly instructed because the jury was not given a chance to consider whether the
defendant's self-defense was justified.
○ "If the jury believed, from the evidence, that the defendant would have been justified in shooting one of the rioters, had
such person advanced towards him, as did the plaintiff, then it became important to determine whether the defendant
mistook the plaintiff for one of the rioters; and, if such mistake was in fact made, was it excusable, in light of all the
circumstances leading up to and surrounding the commission of the act?
• The tort alleged is battery (the plaintiff was shot)
• Are the elements of battery satisfied (D must have intent to either cause a harmful contact, cause an offensive contact, or cause an
imminent apprehension of physical contact/injury)
• D may justify intentional conduct that injured P based on self-defense if he proves that:
○ He acted honestly in using force;
○ His fears were reasonable under the circumstances; and (objective standard)
○ The means used were reasonable (objective standard) (the means of defense can only be proportional in light of the attack)

Rule
• Those who (1) reasonably believe that they are (2) unwarrantedly attacked have a privilege to protect themselves, (3) using only the force

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Rule
• Those who (1) reasonably believe that they are (2) unwarrantedly attacked have a privilege to protect themselves, (3) using only the force
that a reasonable person would use under the circumstances (i.e., principle of proportionality)

Defense of Others: R2 s. 76
• One who defends a third person is entitled to use the same means as though defending himself if he "correctly or reasonably believes that:
○ The circumstances are such as to give the third person a privilege of self -defense; and
○ His intervention is necessary for the protection of the third person
○ (there must be some reason for the third persons intervention)
Katko v. Briney
○ Defendants wife and husband inherited a farmhouse where the wife's parents had lived.
○ No one had lived in the house for quite some time.
○ A series of trespassing and housebreaking events occurred with the loss of some household items
○ The defendants decided to stop the burglaries by setting up a "shotgun trap" where if a bedroom door was open the gun would f ire at
the door.
○ The defendants testified that they did not intend to injure anyone
○ One night, the plaintiff and a friend were trespassing in the house, the plaintiff opened the bedroom door, the gun went off, and he
suffered severe and permanent injuries to his leg.
 "the law has always placed a higher value upon human safety than upon mere rights in property."
 "it is the accepted rule that there is no privilege to use any force calculated to cause death or seriously bodily injury to repel the
threat to land or chattels, unless there is also such a threat to the defendant's personal safety as to justify a self-defense."
 "Spring guns and other man-killing devices are not justifiable against a mere trespasser, or eve a petty thief."
 "when malice is shown or when a defendant acted with wanton and reckless disregard of the rights of others, punitive damages
may be allowed as punishment to the defendant and as a deterrent to others."
○ The court held that a property owner has no right to use force calculated to cause death or seriously bodily injury in order
to repel threats to their property unless there is also a threat to the property's owner's personal safety
• This would be a different case if someone is breaking into a dwelling and you have to protect yourself.
• So the question is can you use force such as this to protect property when the life or well-being is not at stake
• A property owner is prohibited form willfully or intentionally injuring a trespasser by means of force, such as a spring gun, that either takes
life or inflicts great bodily harm unless:
○ The trespasser is committing a felony of violence or a felony punishable by death; or
○ The trespasser is endangering human life by his act
• Question
○ Should the protection of property ever justify the use of deadly force?
Vincent v. Lake Erie Transportation Co.
○ A steamship owned by the defendant lawfully discharging her cargo moored to plaintiff's dock.
○ A severe storm approached that made it impossible to navigate the ship away from the dock.
○ The defendant held the ship in position resulting in $500 worth of damage to the dock
○ Plaintiff sued defendant to recover the damage done to the dock
 The court held that because the defendant deliberately and by their direct efforts held the ship in a position that damage to the
dock resulted, that the defendant preserved the ship at the expense of the dock and therefore should be liable for the damage
to the dock.
○ "but here, those in charge of the vessel deliberately and by their direct efforts held her in such a position that the damage
to the dock resulted, and, having thus preserved the ship at the expense of the dock, it seems to us that her owners are
responsible to the dock owners to the extent of the injury inflicted."
○ "let us imagine in this case that for the better mooring of the vessel those in charge of her had appropriated a valuable
cable lying upon the dock. No matter how justifiable such appropriation might have been, it would not be claimed that,
because of the overwhelming necessity of the situation, the owner of the cable could not recovery its value."
Ploof
• P moored his loaded sloop at D's dock to avoid sudden tempest. D's servants cut loose the sloop, and it and its contents were destroyed in
the storm. P and his family were injured.
• Holding: A person has a privilege to use another's property without consent when use is necessary to protect life and property; a person
that prevents the use of property in those circumstances is liable for resulting damages.
Vincent
• If out of private necessity one is privileged to use another's property and damages it deliberately and by direct efforts, the first party is
liable for the damages caused.
• The privilege seems to be worthless if you are going to be liable for the damage caused….you are liable when there is no privilege….you are
also liable when there is a privlege
• Why is damage liability appropriate?
○ Reasons for damage liability
 Assure that the rescue is really cost justified (make the defendant make the choice whether his ship and cargo is more valuable
then dock)
 Encourage dock owners to cooperate with boats in distress
□ Necessary in light of Ploof
 Get right amount of investment in docks

Government Liability

Deliberate Interference with Individual Rights


42 U.S.C. s 1983
• (1) Every person who, (2) under color (this is saying person is acting under color of state law) of any statute, ordinance, regulation, custom,

Outline Page 56
or usage, of any State…(3) subjects, or causes to be subjected, any *citizen or resident+ (4) to the deprivation of any rights, privileges, or
immunities secured by (a) the Constitution and (b) laws (5) shall be liable to the party injured in an (a) action at law, (b) suit in equity, or c)
other proper proceeding for redress…"
○ Person must be acting under color of state law while depriving someone of a privilege of federal law.

• Purposes (Monroe v. Pape)


1. Override certain kinds of state laws
2. Provide remedy where state law was inadequate in theory
3. Provide remedy where state remedy, though adequate in theory, was inadequate in practice -- the federal remedy is supplementary

"Every Person…"
• "city"(any subordinate state entity:, county, municipality, township) is a "person," but is not vicariously liable for intentional torts of its
employees
• So when can city be sued? You can only sue the city based on an independent action of the city.
• Monell: City liable "when execution of a government's policy or custom, whether made (1) by its lawmakers or (2) by those whose edicts or
acts may fairly be said to represent official policy, inflicts the injury"
• I.e., city liable when act causing harm done at the policymaking level of government entity or pursuant to policy of that government.
• Most courts hold that standard applies whether action is for damages or injunctive relief
• If individuals sued in their official capacities, the suit is treated as against the governmental entity; naming the individuals as defendants
adds nothing
• If individuals holding public office are sued in their individual capacities, Monell and its limitations do not apply
• When entity is D, P must show that the (1) officials or (2) official boards that are the relevant final decision-making authority (legislative or
executive) within the entity, was directly responsible for deprivation
• P may recover against entity for nonfeasance (i.e, failure to train, etc.) only if failure amounts to "deliberate indifference" to the rights of
persons with whom agents come into contact (Canton)

"Under color of state law…"


• Broadly construed
• Can be satisfied even when public official acts contrary to state law
• Can even be satisfied by private action, if action is made possible only because of state acquiescence or support

"Citizen of the U.S. or other person within the jurisdiction thereof…"


• Claim can be brought by:
○ All natural persons who are citizens
○ Resident aliens
○ Corporations
• Claim cannot be brought by
○ Native american tribe…..

Test for Claim Based on Federal Statutory right


1. Statute (or constitutional provision) in question creates enforceable "rights" within the meanign of s 1983; and
2. Statute itself does not foreclose s. 1983

Enforceable Right
1. Provision creates obligations biding on governmental unit;
2. P's interest not so vague and amorphous as to be beyond judiciary's competence to enforce; and
3. Provision was intended to benefit P

Foreclose 1983 Action


1. Congress includes express provision to that effect in statute itself; or
2. Congress invests statute with remedial scheme sufficiently comprehensive as to demonstrate an intent to preclude a s 1983 remedy ,
thereby implicitly eliminating the remedy

Immunity
• Qualified
○ Good faith: the actor is immune from legal liability if he was acting in good faith
• Absolute
○ Immune regardless of good or bad faith

Wilson
• Under both 1983 and Bivens, government officials performing discretionary functions have qualified immunity against civil damages
"insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have
known."

Analytical Sequence
1. Court must first determine whether P has alleged deprivation of actual constitutional right; and if so
2. Court must then determine whether that right was clearly established at the time of the alleged violation.

Application to Wilson
• There was immunity because law was not clearly established

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• There was immunity because law was not clearly established

Why provide immunity?


• Unjust to impose liability on individual charged with exercising discretion, especially if he acts in good faith;
• Threat of liability will deter his willingness to execute….

FTCA makes federal government itself liable for intentional torts of law enforcement agents
Bivens makes federal gents themselves liable for deprivation of some constitutional rights

Sue individuals under Bivens


Sue entities under FTCA

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