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I. Introduction 6
Chapter 1: An Introduction to Torts 6
1. What is a Tort 6
Torts Are/Tort Are Not 6
2. Tort Law in Context 6
Criminal Law 6
Administrative Regulation 7
Social Welfare Programs and Public Compensation Funds 7
Contract Law 7
II. Negligence 8
Chapter 2: The Duty Element 8
1. Negligence: A Brief Overview 8
Elements of the Prima Facie Case 8
The Injury Element 8
Focusing on Physical Harms 8
2. The Duty Element and the General Duty of Reasonable Care 8
A. Easy Cases: The Unqualified Duty to Conduct Oneself with Reasonable Care for the Person and Property of Others 8
B. A Sampling of Easy Duty Cases Drawn from English Law 8
C. The Evolution of Duty Rules 9
Winterbottom v. Wright [1842], England 9
Thomas v. Winchester (1852), New York 9
Heaven v. Pender [1883], England 9
New York Case Law and Winterbottom versus Thomas (1870-1910) 9
Loop v. Litchfield (1870) 9
Losee v. Clute (1873) 9
Devlin v. Smith (1882) 9
Torgensen v. Schultz (1908) 10
Statler v. George A. Ray Mfg. Co. (1909) 10
MacPherson v. Buick Motor Co. (1916) 10
Mussivand v. David (1989) 10
3. Qualified Duties of Care 11
A. Affirmative Duties to Rescue and Protect 11
Osterlind v. Hill (1928) 11
Baker v. Fenneman & Brown Properties, LLC (2003) 11
Tarasoff v. The Regents of the University of California (1976) 12
B. Premises Liability 12
Licensee/Invitee/Trespasser Distinction 12
Leffler v. Sharp (Miss. 2005) 13
Rowland v. Christian (Cal. 1968) 13
C. Pure Economic Loss 14
Aikens v. Debow (2000) 14
Deepwater Horizon 14
Chapter 3: The Breach Element 15
1. Duty, Breach and the Meaning of Negligence 15
Standards of Care 15
Myers v. Heritage Enters., Inc. (2004) 15
Martin v. Evans (1998) 15
Pingaro v. Rossi (1999) 16
Jones v. Port Authority of Allegheny County (1990) 16
Campbell v. Kovich (2006) 16
Adams v. Bullock (1919) 16
2. Defining the Reasonable Person 17
The Objective Standard 17
Parental Liability 17
Mental Incompetence, Battery and Negligence 17
Vaughan v. Menlove [1837] 18
Appelhans v. McFall (2001) 18
3. Industry and Professional Custom 18
The T.J. Hooper (1932) 18
Johnson v. Riverdale Anesthesia Assocs., P.C. (2002) 19
Condra v. Atlanta Orthopaedic Group, P.C. (2009) 19
Largey v. Rothman (1988) 19
4. Reasonableness, Balancing and Cost-Benefit Analysis 20
Cost Benefit Analysis and Hand Formula 20
United States v. Carroll Towing Co. (1947) 20
Rhode Island Hosp. Trust Nat’l Bank v. Zapata Corp. (1988) 21
5. Proving Breach: Res Ipsa Loquitur 22
Breach as an Element of Plaintiff’s Prima Facie Negligence Case 22
Byrne v. Boadle [1863] 22
Kambat v. St. Francis Hosp. (1997) 23
Chapter 4: The Causation Element 23
1. Key Terms and Concepts 23
Actual and Proximate Cause 23
Actual Cause and the “But-for” Test 23
Common Misconceptions of Meaning of “Caused” 24
Statistical Evidence 24
Causation and Breaches of Affirmative Duty 24
2. Proving Actual Causation Under the Preponderance Standard 24
Skinner v. Square D Co. (1994) 24
Falcon v. Memorial Hospital (Mich. 1990) 25
3. Multiple Necessary and Multiple Sufficient Causes 25
Multiple “But-For” Causes 25
Actual vs. Proximate Cause 25
Multiple Necessary Causes and Apportionment of Liability 25
Multiple Sufficient Causes 26
Substantial Factor and Trivial Necessary Conditions 26
Pre-empted or Doomed Plaintiffs 26
Apportionment 26
McDonald v. Robinson (1929) 26
Aldridge v. Goodyear Tire & Rubber Co. (1999) 26
4. Causation and Burden-Shifting 27
Alternate Causation 27
Alternate Causation and Related Tort Doctrines 27
Market Share Liability 28
Summers v. Tice (1948) 28
Sindell v. Abbott Labs. (Cal. 1980) 28
Chapter 5: Aligning the Elements: Proximate Cause and Palsgraf 29
Alignment Concepts 29
1. Proximate Cause 29
A. Directness, Foreseeability, and Scope of the Risk 29
Modern Formulation of Proximate Cause 29
Older Formulations of Proximate Cause 30
Union Pump Co. v. Allbritton (1995) 31
Jolley v. Sutton London Borough Council [2000] 31
B. Proximate Cause and Intervening Wrongdoing 31
Superseding Cause 31
Subsequent Malpractice 32
Social Host Liability 32
Pollard v. Oklahoma City Ry. Co. (1912) 32
Clark v. E.I. Du Pont de Nemours Powder Co. (1915) 33
Port Authority of New York & New Jersey v. Arcadian Corp. (1999) 33
2. The Persistent Puzzle of Palsgraf 34
Palsgraf v. Long Island Railroad Co. (1928) 34
Petitions of the Kinsman Transit Co. (1964) 34
Chapter 6: Negligence Per Se 35
Statutes and Torts 35
Negligence Per Se 35
Conditions for Application of Negligence Per Se 36
Excused Violations 36
Regulatory Compliance 36
Dalal v. City of New York (1999) 37
Bayne v. Todd Shipyards Corp. (1977) 37
Victor v. Hedges (1999) 38
Chapter 7: Defenses 38
1. Comparative Negligence and Comparative Responsibility (Fault) 38
Contributory Negligence 38
Comparative Fault 39
Modified Comparative Fault 39
Jury Information 39
Comparative Fault and Causation 40
United States v. Reliable Transfer Co. (1975) 40
Hunt v. Ohio Dept. of Rehabilitation & Correction (1997) 41
Baldwin v. City of Omaha (2000) 41
2. Assumption of Risk 42
A. Express Assumption of Risk 42
Jones v. Dressel (1981) 42
Dalury v. S-K-I, Ltd. (1995) 42
B. Implied Assumption of Risk 43
Implied Assumption of Risk and Comparative Fault 44
Implied Assumption of Risk Statutes 44
Implied Assumption of Risk vs. Breach 44
Bailments and Common Carriers 44
Smollett v. Skayting Dev. Corp. (1986) 44
3. Immunities and Exemptions from Liability 45
Immunity in Tort Law 45
Intra-familial Immunity 45
Charitable Immunity 45
Sovereign Immunity 46
Riley v. United States (2007) 47
Riss v. City of New York (1968) 47
Strauss v. Belle Realty Co. (1985) 48
III. Intentional Torts 48
Chapter 9: Battery, Assault, and False Imprisonment 48
1. Introduction 48
Intentional Torts 48
2. Battery and Assault: Elements 49
A. Battery 49
Battery vs. Negligence 51
Cecarelli v. Maher (1943) 51
Paul v. Holbrook (1997) 51
Wagner v. State (2005) 52
Battery: Unintended Consequences and Knowledge 53
Vosburg v. Putney (1891) 53
Cole v. Hibberd (1994) 53
B. Assault 54
Beach v. Hancock (1853) 54
Brooker v. Silverthorne (1919) 54
Vetter v. Morgan (1995) 55
3. Battery and Assault: Transferred Intent 56
Doctrine of Transferred Intent 56
In re White (1982) 56
4. Standard Defenses to Battery and Assault 57
Affirmative Defenses to Assault and Battery 57
A. Consent 57
Koffman v. Garnett (2003) 58
B. Self-Defense and Defense of Others 59
Haeussler v. De Loretto (1952) 60
C. Defense and Recapture of Property 60
Katko v. Briney (1971) 60
4. False Imprisonment 61
A. Elements 62
Fojtik v. Charter Med. Corp. (1999) 62
B. Defense of Investigative Detention and Arrest 63
Grant v. Stop-N-Go Market of Texas, Inc. (1999) 64
Chapter 10: Infliction of Emotional Distress 64
1. Intentional Infliction of Emotional Distress 64
A. Emergence of Intentional Infliction of Emotional Distress (IIED) 64
B. Elements of IIED 65
Dickens v. Puryear (1981) 67
Littlefield v. McGuffey (1992) 67
2. Negligent Infliction of Emotional Distress (NIED) 67
Recognition of NIED 67
A. From No Injury to the Zone of Danger 68
Emergence of True NIED Claims 68
Wyman v. Leavitt (1880) 68
Robb v. Pennsylvania R.R. Co. (1965) 69
B. Undertakings to be Vigilant of Another’s Emotional Well-Being 70
Beul v. ASSE Int’l Inc. (2000) 70
C. Beyond the Zone: Bystander Claims 70
Waube v. Warrington (1935) 71
Dillon v. Legg (1968) 71
Thing v. La Chusa (1989) 72
IV. Liability Without Fault 73
Chapter 11: Property Torts and Ultrahazardous Activities 73
1. Property Torts 73
A. Trespass to Land: Prima Facie Case 73
Burns v. Philip Food, Inc. v. Cavalea Cont’l Freight, Inc. (1998) 74
B. Trespass and Necessity 74
Vincent v. Lake Erie Transp. Co. (1910) 75
C. Conversion and Trespass to Chattel 76
D. Consent (and other Defenses) 76
Aspects of Consent 76
Media Trespass 76
Other defenses 77
Copeland v. Hubbard Broadcasting, Inc. (1995) 77
E. Nuisance 77
Sturges v. Bridgman (1879) 79
Penland v. Redwood Sanitary Sewer Serv. Dist. (1998) 80
Boomer v. Atlantic Cement Co. (1970) 80
2. Ultrahazardous Activities 81
Basic Principles 81
Proximate Cause, Defenses, and Apportionment 82
Rylands v. Fletcher [1868] 82
Klein v. Pyrodyne Corp. (1991) (en banc) 83
Chapter 12: Products Liability 84
1. Introduction 84
Justifications for Defect-Based Liability 84
A. Precursors 85
Escola v. Coca Cola Bottling Co. (Cal. 1944) 85
B. The Emergence of Strict Products Liability 86
Modern Warranty Law 86
Users versus bystanders 87
§ 402A of Second Restatements 87
Greenman v. Yuba Power Prods., Inc. (Cal. 1963) 87
2. Basics of a Products Liability Claim 88
Products Liability: Prima Facie Case 88
A. What counts as an injury? 88
B. What is a “Product”? 89
C. Who or what is a “Seller”? 89
D. The Key to Products Liability: Defect 90
Categories of Defect 90
Proving Manufacturing Defect 91
Other Causes of Action 91
Defenses 92
Gower v. Savage Arms, Inc. (2001) 92
Branham v. Ford Motor Co. (2010) 93
V. Damages 94
Chapter 8: Damages and Apportionment 94
1. Elements and Availability of Damages 94
Eggshell (or thin) skull rule 94
A. Compensatory Damages 94
Smith v. Leech Brain & Co. Ltd. [1962] 96
Kenton v. Hyatt Hotels Corp. (1985) 97
B. Punitive Damages 97
National By-Products, Inc. v. Searcy House Moving Co. (1987) 98
Mathias v. Accor Economy Lodging, Inc. (2003) 99
Other forms of redress 99
2. Joint Liability and Contribution 99
Joint and Several Liability (JSL) 99
Several (or “Several-only”) Liability 99
JSL versus Several Liability 99
Ravo v. Rogatnick NY 1987 100
3. Indemnification and Liability Insurance 100
Interinsurance Exch. of the Automobile Club v. Flores (1996) 100
Hashtags
#exam – points to work into exam if possible/necessary
#policy – policy arguments (besides explicit arguments)
Exam Tips
▪ Understand Hand formula
▪ Understand difference between “multiple necessary” and “multiple sufficient” causes
▪ Consider arguments for juries (American system) and against juries (England and most of industrial world) in civil litigation
▪ Consider policy arguments for and against pure comparative fault vs. modified comparative fault
▪ Implied assumption of risk: look for words like “plaintiff chose to,” “plaintiff opted to” when identifying comparative fault/IAoR problems and consider duty/breach
▪ Palsgraf as example of case where tortfeasor commits assault/battery towards unintended? Desert shooter hypo? See note 5 p.626
▪ Alternative reasoning for outcomes of Vincent
▪ Understand Coase Theory
▪ Compare Branham to Greenman (see Branham notes)
I. Introduction
Chapter 1: An Introduction to Torts
1. What is a Tort
Torts Are/Tort Are Not
▪ Torts Are
Legal
Relational
Injurious
Civil
▪ Torts Are Not
Moral
Simple
Non-Injurious
Criminal
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2. Tort Law in Context
Criminal Law
▪ Similarities
Primarily concerned with identifying and sanctioning wrongful conduct
Leaves an important role for the jury in application of the law
▪ Differences
Negligence (perhaps the most prominent cause of action in modern torts) is less commonly the basis for criminal liability
Primary purpose of a criminal prosecution is for the government, on behalf of the people, to punish the individual wrongdoer and deter future behavior
Higher burden of proof for criminal conviction – beyond a reasonable doubt. Tort claims require only a preponderance of the evidence (more likely than not that each element of the claim is satisfied)
No doctrine of comparative fault (victim’s responsibility) exists in criminal law
Typically no specific redress to victim in criminal law
Criminal law is primarily enforced through statutes and not common law
Criminal law is primarily public, tort law is primarily a law of private redress
Administrative Regulation
▪ Similarities
Seeks to set substantive standards of conduct
▪ Differences
Like criminal law, executes/enforces these standards via directives and suits initiated by the government and does not offer specific redress to victims
Unlike criminal and tort law, standards are set not by judges or lay-juries, but by officials within the administrative agencies
Treats issues in an aggregate, forward-looking basis by soliciting advice from experts and many interested parties and not parties to a particular dispute
Social Welfare Programs and Public Compensation Funds
▪ Similarities
May involve injury suffered by a victim
▪ Differences
Does not focus on responsibility and redress for injury, but only on individual need for compensation
Minimal procedure when compared to tort law
Contract Law
▪ Similarities
Private law
Application of law will be left to judge and juries
▪ Differences
Seeks redress for failure of a party to do what he or she has promised to do
Empowers parties to determine for themselves the expected terms of interactions (optionality)
II. Negligence
Chapter 2: The Duty Element
1. Negligence: A Brief Overview
Elements of the Prima Facie Case
▪ Legal negligence: failure to heed a duty of reasonable care owed to another that causes injury to that other
▪ Four elements of a prima facie negligence claim:
1) P has suffered an injury (threshold question)
2) A is owed a duty to a class of persons including P to take care not to cause an injury of the kind suffered by P (question of law)
3) A breached that duty of care (question of fact)
4) A’s breach was an actual and proximate cause of P’s injury
The Injury Element
▪ What Counts as an Injury in Negligence Law?
▪ Physical harms
Bodily harms (including fatal and non-fatal contusions, lacerations, broken bones, internal organ damage, diseases, and physical illnesses) – corresponding duty
Damage to or destruction of tangible property (including land, structures and personal possessions) – general/unqualified duty
▪ Loss of wealth – corresponding duty
▪ Emotional distress – limited/qualified duty
Focusing on Physical Harms
▪ Negligence claims tend to arise out of physical harms – suits resulting from car accidents, medical errors, and unsafe premises comprise the vast bulk of modern negligence suits
2. The Duty Element and the General Duty of Reasonable Care
▪ Default standard: person has a duty to conduct themselves as a reasonable person would under the same circumstances
▪ Duty element is question of law to be determined by judge
A. Easy Cases: The Unqualified Duty to Conduct Oneself with Reasonable Care for the Person and Property of Others
▪ Easy duty cases are commonly those in which plaintiff’s allegation is that the ( carelessly pursued an affirmative course of conduct that directly caused the plaintiff physical harm
Courts articulate duty owed by the injurer in unqualified or general terms
B. A Sampling of Easy Duty Cases Drawn from English Law
▪ Reasonable foreseeability: unqualified duty to take reasonable care not to cause physical harms is owed to another whenever a person “of ordinary sense” would recognize that careless conduct on his part would cause “danger of injury to the person or property of the other” – Justice Brett from Heaven v. Pender (1883)
Probabilities: NOT a “more probable than not” test
Normative Judgment: influence of morality and social norms
C. The Evolution of Duty Rules
Winterbottom v. Wright [1842], England
▪ Facts: Wright built and maintained carriages; He entered into a contract with the English Postmaster General to provide coaches fit for delivery of mail; Postmaster General obtained drivers by contracting with another company with whom Winterbottom was employed; Winterbottom suffered permanent harm to his leg when a wheel on the coach collapsed; Winterbottom sued Wright arguing breach of duty of care owed to drivers to ensure soundness of coach
▪ Privity Rule: No contractual privity, no duty
▪ Legal Reasoning: Necessary to reject claim to discourage “an infinity of actions” (Lord Abinger)
Thomas v. Winchester (1852), New York
▪ Facts: Winchester mislabeled a bottle of poison as medicine, selling it to a distributor Aspinwall; the distributor sold it to a pharmacist; pharmacist sold it to the plaintiff’s husband; Thomas was accidentally poisoned
▪ Distinguished from Winterbottom - “death or great bodily harm of some person was the natural and almost inevitable consequence” (imminently dangerous products)
Heaven v. Pender [1883], England
▪ Reasonable foreseeability: unqualified duty to take reasonable care not to cause physical harms that is owed to another when a reasonable person could see their conduct is reckless / dangerous / negligent
New York Case Law and Winterbottom versus Thomas (1870-1910)
Loop v. Litchfield (1870)
▪ Facts: defendant manufactured piece of machinery including a cast-iron wheel missing a portion of its rim; defendant patched said rim by riveting some lead to the wheel; defendant sold machinery to Collister; Collister leased frame to Loop; Loop was fatally injured when wheel burst at point of patch
▪ Holding: Loop’s estate obtained jury verdict against manufactured subsequently overturned by Court of Appeals for lack of duty under Winterbottom
Losee v. Clute (1873)
▪ Facts: defendant manufactured steam boiler for use in paper mill known to be adjacent to other businesses; mill owner tested and accepted boiler; boiler operated without incident for three months before exploding and causing damage to Losee’s property
▪ Holding: Court of Appeals cited Winterbottom and concluded that manufactured exercised no control over operation or maintenance of boiler post-installation and thus owed no duty of care to plaintiff
Devlin v. Smith (1882)
▪ Facts: painter killed due to defendant’s carelessness in erecting scaffolding
▪ Holding: Court of Appeals reversed lower-court judgments for the defendant by invoking Thomas and “imminent danger” clause, establishing duty of care to third parties
Torgensen v. Schultz (1908)
▪ Facts: domestic servant lost eye after a bottle of carbonated water bottled by defendant and sold to her employer exploded
▪ Holding: Court of Appeals reversed the trial court’s dismissal on the grounds that a bottle of aerated water is an “inherently dangerous” instrument, establishing duty of care to third parties following Thomas
Statler v. George A. Ray Mfg. Co. (1909)
▪ Facts: negligently manufactured steam-driven coffee urn exploded and injured plaintiff
▪ Holding: Court concluded that negligently manufactured urn was an “inherently dangerous” instrument, establishing duty of care to third parties following Thomas
MacPherson v. Buick Motor Co. (1916)
▪ Facts
( sold an automobile to a retail dealer; which resold to (
Car suddenly collapsed due to defective wheel; injuring (
Wheel was not made by defendant, but purchased from another manufacturer; evidence suggests defects could have been identified by reasonable inspection, which was omitted
▪ Holding [Cardozo]
If:
a) the nature of a thing is such that it is reasonably certain to place life and limb in peril when negligently made, it is then a thing of danger (imminent threat);
b) If to the element of danger there is added knowledge that the thing will be used by persons other than the purchaser; AND
c) If to the aforementioned there is added knowledge that the thing will be used without new tests or safety monitoring post-sale ;
Then irrespective of contract, the manufacturer of this thing of danger is under a duty to make it carefully; if [manufacturer] is negligent where danger is foreseen, a liability will follow
▪ Importance
Rejection of Winterbottom helped bring about rejection of the privity rule in the vast majority of state courts and paved the way toward the development of the modern doctrine of strict products liability #exam
Mussivand v. David (1989)
▪ Facts
(, a doctor, alleged (, fellow doctor, infected his wife with an STD and she in turn infected (
( alleges ( was negligent toward him by engaging in sex without disclosing his infection to wife or taking precautions against infecting her
▪ Holding
Spouse is foreseeable sexual partner, and thus ( also has duty to warn (
Duty doesn’t extend further to other (unforeseeable) lovers wife may have had
Court rejects (’s assertion that (’s claim is based on amatory cause of action (“loss of marriage”) and thus barred under “anti-heart balm” statute(s)
▪ Notes
Mussivand Parallels to MacPherson
➢ STD causes physical harm (like flawed car)
➢ No privity exists between ( and (
➢ No “inspection” carried out by intermediary (wife)
3. Qualified Duties of Care
▪ More difficult duty cases tend to arise out of allegations that the defendant’s carelessness consisted of a failure to act for the benefit of the plaintiff or that the defendant caused some other kind of injury besides physical harm
Courts qualify duty with various limitations to identify specific duties
➢ Protect and rescue
➢ Provide safe premises
➢ Avoid causing non-physical harm
A. Affirmative Duties to Rescue and Protect
▪ Nonfeasance: failure to act
▪ Misfeasance: negligent harm through action
▪ Nonfeasance is often accompanied by an assumption of the absence of a duty of care #exam
( must generally establish special circumstances (such as a preexisting relationship) to establish duty
▪ Exceptions to general no-affirmative duty rule
Duty-to-rescue (state “Good Samaritan” statutes): person who attempts rescue is immunized from liability for negligence
Voluntary undertakings: A promises or chooses to aid B and must do so with reasonable care
Imperilment: A with or without fault puts B in peril
Special relationships
➢ Special relationship between ( and ( (such as proprietor and customer, See Baker)
➢ Actor and third person which imposes duty on actor to control third person’s conduct (§ 315 of Restatement Second of Torts)
➢ Actor and other which gives to other a right of protection (§ 315 of Restatement Second of Torts)
Osterlind v. Hill (1928)
▪ Facts
( rents canoe to intoxicated parties
Canoe overturns; calls were heard and ignored by ( and one party drowns
▪ Holding
( was not in a helpless condition and was able to take steps to protect himself (hanging on canoe, calling for help)
( violated no legal duty, thus rendering the allegations of involuntary intoxication and willful, wanton or reckless conduct immaterial
Baker v. Fenneman & Brown Properties, LLC (2003)
▪ Facts
( entered Taco Bell, feeling ill, fell backwards and was knocked unconscious
( regained consciousness and then fell again, losing consciousness and incurring several injuries (lacerated chin, missing teeth, cracked vertebra)
▪ Holding
( had a duty as a business that invited members of the public to enter its facility
No duty to rescue unless special relationship (here, custodial element of inviting onto premises)
Tarasoff v. The Regents of the University of California (1976)
▪ Facts
Poddar informed therapist that he was going to kill an unnamed readily identifiable girl
Therapists and campus police fail to take action to restrain Poddar and he kills girl
▪ Holding
Special relationship of a doctor to patient is sufficient to support the duty to exercise reasonable care to protect others against dangers emanating from the patient’s illness
▪ Dissent
Duty to warn imposed by the majority will cripple the use and effectiveness of psychiatry #policy
D. Premises Liability
▪ Characteristics of Landownership
Landownership is often passive and without immediate participation of possessor/owner
Courts have long recognized special duty rules in cases alleging carelessness in the maintenance of real property
▪ Ownership
Person need not own property to be a possessor for purposes of premises liability #exam
▪ Hazardous Conditions vs. Hazardous Activities
Special duty rules for premises liability are designed to address dangerous conditions and not dangerous activities that occur on the premises
▪ Recreational Use Statutes
Modern tort reform has seen states enact statues to exempt owners of properties used for recreational purposes (e.g. land with a pond used for winter skating) from negligence liability
Licensee/Invitee/Trespasser Distinction
▪ Traditional classification of injured party for premises liability
Invitee: person who goes upon the premises of another in answer to the express or implied invitation of the owner or occupant for their mutual advantage (business visitor)
Licensee: one who enters upon the property of another for his own convenience, pleasure or benefit pursuant to the license or implied permission of the owner (social guest)
Trespasser: one who enters upon another’s premises without license, invitation or other right; a trespasser enters another’s property “merely for his own purposes, pleasure or convenience, or out of curiosity; and without any enticement, allurement, inducement or express or implied assurance of safety from the owner or person in charge.”
▪ Exceptions to the Rule of Duty for Trespassers
General rule of no duty of care applies only to adult trespassers; possessors must take reasonable care to prevent injuries to child trespassers #exam
▪ Rejection of Invitee-Licensee Distinction and Plaintiff Status Categories #exam
Approximately ½ of the states have abolished invitee-licensee distinction, reserving duty of reasonable care to all entering property with permission and distinguishing from trespassers
Fewer than 10 states have abolished all categories and established general duty of reasonable care for all persons, regardless of status Rowland v. Christian, (Cal. 1968)
|Traditional Duty Rules |
|(’s status |Duty Owed |
|Invitee |Provide “reasonably safe” premises |
|Licensee |Warn of hidden dangers about which possessor knows or should know |
|Trespasser |No duty owed to adults |
|Premises Liability Rules Today in US Jurisdictions |
|Invitee/Licensee/Trespasser |30% |
|Invitee-Licensee/Trespasser |50% |
|All categories abandoned |20% |
Leffler v. Sharp (Miss. 2005)
▪ Facts
Despite a locked glass door with “NOT AN EXIT” stenciled on the glass, ( entered the roof of an inn through the open window
As he was walking on the rooftop, ( fell through the roof approximately 20 feet to the ground
Architect and structural engineer advised owner that roof was not safe for use as terrace
Undisputed that ( was an invitee upon his entrance into the inn
▪ Holding
Occupant is an invitee where the owner of the premises and the occupant receive mutual benefits
Owner nor occupant of premises benefited from (’s walk on the roof; ( was not an invitee at the location and time of the accident and therefore, was not owed the duty given to an invitee (determination of duty)
Owner owes trespassers no duty to keep his premises in a safe condition for their use, and as a general rule, is not held responsible for an injury sustained by a trespasser upon the premises (determination of breach)
▪ Notes
Mississippi law that a owner/operator owes a licensee only a duty to refrain from willfully injuring them is a minority rule
Majority rule requires that owner/operator who is (or should be aware) of presence of licensee take reasonable steps to warn of hidden dangers on the premises that licensee cannot be expected to discover
Rowland v. Christian (Cal. 1968)
▪ Facts
( was aware that knob of the cold water faucet on bathroom basin was cracked and should be replaced
( entered apartment at invitation of ( and was injured while using the bathroom fixtures (severed tendons and nerves in right hand)
▪ Holding
CA Supreme Court gets rid of invitee/licensee/trespasser distinction; everyone is owed a duty by the landowner
Liability of a possessor of land for injuries to persons who have entered upon that land – based on seven considerations: (1) foreseeability of harm to plaintiff, (2) degree of certainty that plaintiff suffered injury, (3) closeness of connection between defendant’s conduct and injury, (4) moral blame attached to defendant’s conduct, (5) policy of preventing future harm, (6) extent of burden to the defendant and consequences to the community of imposing a duty to exercise care, (7) availability, cost and prevalence of insurance for risk
▪ Notes
Rowland ruling marks transfer of power from judge to jury, eliminating a set of doctrines that had empowered judges to take certain cases away from juries by granting defense motions to dismiss or for summary judgment; jury must rule whether there was a breach of duty
E. Pure Economic Loss
▪ Duty of Care and Economic Prospects
Courts are generally reluctant to recognize duties to look out for another’s economic well-being
Actors are generally obligated to take reasonable care not to cause foreseeable tangible property damage, but no such general obligation exists to avoid depriving persons of economic prospects, except in special situations
Pure economic loss is not
➢ Pure economic loss is not suing for lost wages if you cause physical injury that makes ( miss work.
➢ Pure economic loss is not running into my truck which I need for my business, so I’m suing for lost profits
➢ Pure economic loss applies only to negligence. If you intentionally harm someone’s profits it’s a different category
Aikens v. Debow (2000)
▪ Facts
( damages overpass when driving flatbed underneath; ( operates motel and damaged overpass, most-convenient means of accessing establishment, closed for 19 days
Alternative routing exists
▪ Holding
Majority Rule: No recovery for pure economic loss in the absence of physical harm to that individual’s person or property, a contractual relationship with the alleged tortfeasor, or some other special relationship between the alleged tortfeasor and the individual who sustains purely economic damages
Minority Rule: Recovery of pure economic damages under limited circumstances (NJ is leading authority)
➢ People Express Airlines, Inc. v. Consolidated Rail Corp.: chemical leak that forced an evacuation of an office. Office got to sue for lost revenue during the evacuation
▪ Notes
Limited liability rule is desirable because otherwise there would be “too much liability”, possibly overwhelming courts and also “disproportionate liability” that would be too burdensome on providers of goods and services #policy
Deepwater Horizon
▪ Demonstrates vast and complex universe of potential pure economic loss claimants stemming from Gulf Coast oil spill and tort compensation scheme established to address claims on strict liability basis
Chapter 3: The Breach Element
1. Duty, Breach and the Meaning of Negligence
▪ Breach is question of fact for jury – judge may only take away if evidence is so strong that he can conclude that no reasonable jury could find (or not find) breach
▪ Standard is to take reasonable care, not to make something reasonably safe. Look to whether ( was reasonably diligent in carrying out duty, as opposed to whether ultimate conditions were unsafe.
Standards of Care
Myers v. Heritage Enters., Inc. (2004)
▪ Facts
Certified nurse’s aides/nursing assistants (CNAs) worked at Heritage Manor, a nursing home owned and operated by (
Dropped ( while attempting to lift her from her wheelchair to her bed using a device known as a Hoyer lift, fracturing (’s tibia and fibula
( brought suit against ( alleging violation of Nursing Home Care Act, [which] provides that owners/operators of facilities are liable to a resident for injuries caused by intentional or negligent acts of their employees or agents
▪ Holding
Plain language of statute indicates that the appropriate standard of care for liability under the Act is ordinary care, which does not require expert testimony
A professional belongs to a learned profession and requires a high level of training and proficiency – professional care standard often corroborated by expert testimony
▪ Notes
ORDINARY standard of care
Martin v. Evans (1998)
▪ Facts
( backed his tractor-trailer into ( at interstate rest stop
( had reason to believe no one was parked behind him and used reasonable care when backing out; when putting truck in reverse and releasing emergency brakes; the emergency brakes emit a hissing sound lasting two seconds; he activated his four-way flashers; looked through the side-view mirrors; reversed truck “slower than you could walk”
▪ Holding
Mere occurrence of accident does not establish negligent conduct
Plaintiff has burden of establishing, by a preponderance of the evidence, that the defendant engaged in conduct that deviated from the general standard of care expected under the circumstances and that this deviation proximately caused actual harm
Evidence presented to the jury on issue of Evans’ negligence was contradictory in several respects; credibility determinations are within sole province of the jury
▪ Notes
ORDINARY standard of care
Pingaro v. Rossi (1999)
▪ Facts
(, meter reader, entered fenced-in backyard and was attacked by two dogs
( testified that he kept the dog fenced in his backyard and that a large “Beware of Dog” sign was posted on gate; he also advised that over the course of 10 years he spoke with several meter readers and advised they should not enter yard if no one was home
▪ Holding
Plain language of relevant NJ state statute indicates owner of any dog which shall bite a person while such person is on a public place, or lawfully on or in a private place, shall be liable for such damages as may be suffered by the person bitten
Prudence does not deter liability under strict liability standard
▪ Notes
STRICT LIABILITY standard of care
Jones v. Port Authority of Allegheny County (1990)
▪ Facts
( entered ( bus and was climbing stairs to seating platform when bus pulled out and stopped suddenly; doors to the bus had not closed at time of accident and Mr. Jones injured his arm
( posited that accident never occurred and if it had, there was no negligence on part of driver
▪ Holding
Common carrier owes the “highest duty of care” to its passengers
▪ Notes
EXTRAORDINARY standard of care
Campbell v. Kovich (2006)
▪ Facts
( was struck in the eye by an unknown, unrecovered object that she alleges was ejected from a lawn mower being operated by (, who was mowing the Koviches’ lawn
( admits ( was not doing anything unusual while mowing the lawn and that ( never acknowledged that he mowed over anything
▪ Holding
Ordinarily prudent people, when mowing a lawn, do not go to such extraordinary lengths
( was not required to exercise extraordinary care
▪ Notes
ORDINARY standard of care
Adams v. Bullock (1919)
▪ Facts
( runs a trolley line in the city of Dunkirk employing overhead wire system; at one point the line is crossed by a bridge or culvert
(, a boy of 12 years, came across the bridge swinging an 8-ft wire
Wire came into contact with (’s trolley wire running beneath structure; (was shocked and burned
▪ Holding
( was in the lawful exercise of its franchise and thus negligence cannot be imputed to it because it used that system and not another
There was a duty to adopt all reasonable precautions; not like accident had occurred before; no custom had been disregarded; ordinary caution did not involve forethought of this particular peril
Ruling otherwise would “treat ( like an insurer,” implicitly guaranteeing all who are burned by trolley wires that they too would get paid, moving away from burden of establishing fault negligence
▪ Notes
EXTRAORDINARY standard of care
2. Defining the Reasonable Person
The Objective Standard
▪ Dimensions of Objective vs. Subjective Care
Internal – Conduct of defendant was reasonable careful (objective) vs. Defendant’s attitude was one of trying to be reasonable careful (subjective)
External – How ordinary person would have behaved (objective) vs. How person with defendant’s attributes would have behaved (subjective)
“Objective” generalizes, using a non-individualized norm; “Subjective” particularizes or individualizes standard
Black-letter law of negligence is that reasonable care is to be determined in the objective #exam
|Adjusting the Standard of “Reasonable Care” |
|Taken into account |NOT taken into account |
|Youth |Clumsiness |
|Physical disability |Rashness |
|Expertise (↑ standard) |Mental illness |
| |Old age |
| |Culture |
Parental Liability
▪ Parents are not held vicariously liable for child’s faulty conduct
Can be held liable for child’s intentional tort
▪ Person injured by child’s carelessness who wishes to recover from parent(s) must establish some form of direct negligence or carelessness on part of parent(s)
Negligent supervision: (1) parent aware of prior incident; and (2) parent has opportunity to control child
Negligent entrustment: parent carelessly gives child access to a dangerous instrumentality
Mental Incompetence, Battery and Negligence
▪ Mental incompetence (“insanity”) can sometimes serve as defense to criminal prosecution; there is no equivalent defense in tort law
Vaughan v. Menlove [1837]
▪ Facts
Despite warnings from others about the danger posed by the rick of hay, ( declined to move stack of hay near cottages and stated “he would chance it”
The rick of hay eventually spontaneously combusted and the fire consumed and destroyed not only the (’s buildings, but the cottages of the (
▪ Holding
Holding each individual to a personal standard of prudence would mean no standard at all
(s will be judged by an objective “reasonable person” standard
Appelhans v. McFall (2001)
▪ Facts
( was walking when son of (s struck ( from behind with a bicycle; ( fell and fractured her hip
▪ Holding
Tender Years doctrine: Illinois Rule is that a child of less than seven years old is incapable of negligence
➢ 0-7 years old = no duty
➢ 7-18 years old = duty to act as prudently as a child your age/experience, UNLESS engaged in “adult activity” (e.g. driving a car)
( urges adoption of “Massachusetts Rule” under which any child will be found capable of negligence if fact finder decides child failed to exercise degree of care reasonable for similarly situated children (Section 283A of Restatement Second of Torts mirrors Massachusetts Rule)
▪ Application
Lott v. Strang (Ill. App. 2000): Proof of claim of negligent supervision requires satisfaction of two elements: (1) Parents were aware of specific prior incident(s) sufficient to put them on notice that act at issue in complaint was likely to occur, and (2) Parents had opportunity to control child
3. Industry and Professional Custom
The T.J. Hooper (1932)
▪ Facts
Barges carrying coal from Norfolk, VA were pulled by the “Montrose” and “Hooper” respectively, bound for New York
Both barges eventually sprung leaks and sank due to bad weather
▪ Holding
“Montrose” and “Hooper” would have benefited from the evening weather report, which predicted worse weather, had they had proper receiving sets; captains of both ships testified they would have put in had they received similar weather reports
Ships had private radio receiving sets which belonged to the captains personally, were part toy and were not in working order; an adequate receiving set suitable for a coat-wise tug could be obtained at small cost and is reasonably reliable if kept up
There existed no general custom among the coastwise carriers to equip their tugs with these radios; one line alone did it while the rest relied on their crews alone
Leading illustration for widely accepted “T.J. Hooper rule” that compliance with industry custom is probative, but not dispositive, of reasonable care
Johnson v. Riverdale Anesthesia Assocs., P.C. (2002)
▪ Facts
Decedent, Clair Johnson, suffered severe adverse reaction to anesthesia she received during surgery
Reaction caused Mrs. Johnson’s oxygen supply to be interrupted, resulting in massive brain trauma and death
( alleged malpractice by failing to pre-oxygenate, a pre-surgery procedure where patient is given a measure of pure oxygen to provide a reserve in case oxygen supply is interrupted during surgery
▪ Holding
Different physicians will elect to administer different treatments; merely because these procedures and treatments differ, it does not automatically follow that one of them fails to comply with the applicable standard of care
Prevailing practices play a special role in suits alleging professional malpractice; in medical cases, proof of compliance with professional custom often does establish reasonable care
▪ Application
Exact opposite of TJ Hooper, custom is dispositive in this case and for all “professionals”
Condra v. Atlanta Orthopaedic Group, P.C. (2009)
▪ Facts
( sought treatment for back, neck and arm pain from (, who prescribed 30-day regiment of Tegretol, followed by another 30-day regimen when her condition had not improved
Shortly after beginning second prescription, ( began experiencing leg cramping and shortness of breath leading to hospitalization, where she was diagnosed with aplastic anemia
( asserts Tegretol had been inappropriate drug choice and that ( was negligent in failing to conduct blood count monitoring that could have detected potential adverse reactions
▪ Holding
Johnson v. Riverside Anesthesia Assocs.is no longer viable; evidence regarding expert witness’ personal practices, unless subject to exclusion on other evidentiary grounds, is admissible both as substantive evidence and to impeach the expert’s opinion regarding applicable standard of care
Growing body of case law from other jurisdictions supportive of admissibility of expert personal practices testimony; not universal but the prevailing view
▪ Application
Overrules Johnson on evidence plaintiff can introduce to establish relevant professional norms, allowing plaintiff’s lawyer to ask defense expert if they would have treated plaintiff in way defendant did as means of establishing relevant professional norms
Legislature enacted new statute as part of Tort Reform Act which places particular emphasis on proffered medical expert’s professional experience and practice in assessing qualification to serve as an expert witness
Largey v. Rothman (1988)
▪ Facts
In course of routine physical (’s gynecologist detected “vague mass” in her right breast
Doctor arranged for mammograms and referred plaintiff to (, a surgeon
(recommended a biopsy and ( submitted to biopsy procedure
Six weeks after operation ( developed right arm and hand lymphedema, swelling caused by inadequate drainage of lymph nodes; ( did not advise plaintiff of this risk
▪ Holding
Discard Kaplan’s “reasonable physician” standard and adopt instead the Canterbury “reasonable patient” rule
Doctrine of informed consent is essentially a negligence concept, predicated on duty of physician to disclose to patient information that will enable patient to make an evaluation of nature of treatment and any attendant risks, as well as available options in form of alternative therapies
Kaplan v. Haines Until 1972, “traditional” or “professional” standard formulation of rule required physician to make such disclosure as comports with prevailing medical standard in the community – disclosure of those risks that a reasonable physician in the community of like training would customarily make
Canterbury v. Spence Post-1972, new “reasonable patient” or “materiality of risk” standard of disclosure was established; announcing duty on part of physician to “warn of dangers lurking in proposed treatment” and to “impart information” patient has every right to expect as well as “reasonable disclosure of choices with respect to proposed therapy and dangers inherently and potentially involved”
Canterbury is “not subjective” as to either patient or physician, but “objective” with due regard for patient’s informational needs
▪ Application
“Anti-anti T.J. Hooper rule”: custom probative, not dispositive
▪ Notes
Informed consent generally applied only to doctors/physicians, not technicians
Exceptions to rule of informed consent – no informed consent needed to operate on unconscious patient in need of immediate surgery
4. Reasonableness, Balancing and Cost-Benefit Analysis
Cost Benefit Analysis and Hand Formula
▪ P = probability; L= loss/liability; B = burden
B < P x L= owner careless
B > PxL= owner NOT NECESSARILY careless
▪ Example
B = $100 to get bargee to stay on board 24/7
Probability of barge breaking away = .02
Potential damage caused by breakaway boat = $2,000
.02 x 2,000 = 200 > 100, so it would be careless not to pay the bargee
▪ Calabresi’s “Cheapest Cost Avoider”: if there are two different parties that can stave off risk, but the burden on one is $50 and on the other $75, the $50 prevention party should be the one to bear the preventative cost
United States v. Carroll Towing Co. (1947)
▪ Facts
(1, Conners Marine Co., was obligated to provide bargee aboard Anna C. to supervise; (2, Carroll Towing Co., owners of tugboat Carroll
Four barges were attached to Public Pier in NYC’s Hudson River in a tier formation
When tugboat Carroll adjusted tier to tow away one boat and backed away, the entire Pier 52 tier broke away and floated southward towards Pier 51
The Anna C. struck a tanker docked at Pier 51; tanker’s propeller punched a hole in the Anna C.’s hull and it soon sunk
Unlike most states’ negligence law at the time, admiralty law apportioned liability for property damage on pro rata basis among all liable parties; Conners would either receive ½ each of damages from Carroll Towing and Grace (if not liable) or 1/3 each (if liable)
▪ Holding [L. Hand]
No attribution of fault to the Anna C. that the flotilla broke adrift. Hence she may recover in full against Carroll Company and Grace Line for any injury she suffered from contact with tanker’s propeller (“collision damages”)
We hold that it was a fair requirement that Conners Company should have a bargee aboard unless he had some excuse for his absence during the working hours of daylight [1/3 liable for “sinking damages”]
If bargee had been on board and done his duty to his employer, could have possibly avoided “sinking damages”
▪ Application
Introduced Hand formula
|Admiralty law and comparative fault in Carroll Towing |
|( prevails against ( and |( % fault |(1 % fault |(2 % fault |( can recover |
|( is at fault |33% |33% |33% |66% |
|( is not at fault |0% |50% |50% |100% |
Rhode Island Hosp. Trust Nat’l Bank v. Zapata Corp. (1988)
▪ Facts
Zapata employee stole blank checks and wrote a large number of forged checks, in amounts between $100 and $800 each, on Zapata’s accounts with plaintiff
Bank statements plaintiff sent defendant first reflected forged checks in early April 1985; defendant failed to examine its statements closely until July 1985 – it immediately notified bank which stopped clearing checks
Bank will (and legally must) reimburse defendant for all checks cleared before April 25, 1985; Bank need not reimburse defendant for checks cleared after that date as they failed to exercise reasonable care and promptness to examine statements
U.C.C. § 4-406(1) and Rhode Island General Laws provide that customer is precluded from asserting claim against bank if they failed to exercise reasonable care and promptness, unless customer establishes “lack of ordinary care” on part of bank
▪ Holding [Breyer]
Bank’s practices establish “ordinary care” as most banks in industry follow practice and it is recommended by industry experts
➢ Examines signatures on checks between $100 and $1000 if it has reason to suspect problem
➢ Examines signatures on randomly chosen 1% of all other checks between $100 and $1000
Practice saves money without significantly increasing number of forged checks banks erroneously pay, reflecting “ordinary care”
Ordinary care determination often turns on matter of prevention costs compared with correlative risks of loss
5. Proving Breach: Res Ipsa Loquitur
Breach as an Element of Plaintiff’s Prima Facie Negligence Case
▪ Burden of Production
Requirement of providing to the court some evidence in support of alleged fact or set of facts that party bearing burden seeks to establish
Evidence offered in satisfaction of burden of production will often be “circumstantial” rather than in form of eyewitness or videotaped account; plaintiff will often utilize expert witnesses to establish inferences based on circumstantial evidence
▪ Burden of Persuasion
Comes into play only after there is evidence before a judge or jury upon which it must decide
In most civil lawsuits (including tort suits) burden of persuasion is to establish by “the preponderance of the evidence” or “it is more likely than not”; tie goes to defendant
▪ Res Ipsa Loquitur (“the thing speaks for itself’)
In some situations a negligence plaintiff will have only two pieces of circumstantial evidence available to establish breach
➢ Defendant acted in some undetermined manner toward plaintiff
➢ During or subsequent to interaction, plaintiff suffered an injury
Res ipsa loquitur as an evidentiary doctrine
➢ Once successfully invoked, relieves plaintiff of “burden of production” as to what exactly defendant did wrong
➢ “Information-forcing” rule: asks party in better position to identify what happened to come forth with evidence as to what really did happen
First requirement of res ipsa loquitur (“injury must be of kind not ordinarily resulting absent carelessness on someone’s part”) precludes its application in the vast majority of negligence cases
Third requirement (“plaintiff cannot voluntarily participate in causing injury”) has been explicitly dropped in some courts in light of existing “exclusivity” requirement for defendant and fact that modern negligence law takes plaintiff’s fault into account in determining liability and damages
Byrne v. Boadle [1863]
▪ Facts
Barrel of flour fell from window above defendant’s house and shop and knocked plaintiff down
Horse and cart were seen by witnesses opposite defendant’s door with barrels of flour in cart; defendant was a known dealer of flour
One eyewitness testified they did not think barrel was being lowered with a rope
▪ Holding
In some cases Courts have held that the mere fact of the accident having occurred is evidence of negligence, for instance in the case of railway collisions
The fact of barrel falling is prima facie evidence of negligence and plaintiff is not bound to show that it could not fall without negligence, but if there are any facts inconsistent with negligence it is for defendant to prove them
Kambat v. St. Francis Hosp. (1997)
▪ Facts
( performed abdominal hysterectomy on decedent of plaintiffs
( placed several laparotomy pads in decedent’s peritoneal cavity, next to bowel; patient was unconscious throughout procedure
In months following operation, decedent complained of stomach pain; on November 30, 1986, X-rays revealed a foreign object in her abdomen
A laparotomy pad measuring 18x18 inches – similar to those used during the procedure – was discovered fully or partially in decedent’s bowel and was removed
Decedent died on December 29, 1986 from infection-related illnesses
▪ Holding
Res Ipsa Loquitur Conditions
➢ Event must be of a kind that ordinarily does not occur in the absence of someone’s negligence
➢ Must be caused by agency or instrumentality within exclusive control of defendant
➢ Must not have been due to any voluntary action or contribution on part of (
To rely on res ipsa loquitur, plaintiff need not conclusively eliminate possibility of all other causes of injury
Chapter 4: The Causation Element
1. Key Terms and Concepts
Actual and Proximate Cause
▪ Actual cause: factor without which the result (or injury) in question could not happen (“cause-in-fact” or “factual cause”)
▪ Proximate cause: factor sufficiently related (i.e. nonfortuitously) to result (or injury) in question to be the cause of that result or injury (“legal cause” or “scope of liability”)
Actual Cause and the “But-for” Test
▪ Actual cause inquiry lies at the core of the causation element of the plaintiff’s prima facie case
Typical negligence plaintiff must prove defendant’s breach of duty more likely than not functioned as a cause of plaintiff’s injury (based on preponderance of the evidence standard of proof)
Determination of causation is generally left to jury, subject to judge’s power to rule on issue as a matter of law
▪ Actual causation inquiry is usually guided by a particular legal standard known as the “but-for” test of causation (or “sine qua non” or “counterfactual” test)
Test: Would the plaintiff have been injured if the defendant had acted with the requisite care?
➢ If NO: “but-for” test is satisfied and actual causation established
➢ If YES: plaintiff’s claim fails test and, except in certain special cases, actual causation is not established
▪ Courts employ an alternative test known as the “substantial factor” test in certain situations
California standard jury instruction makes no mention of the “but-for” test, instead instructing the jury that carelessness on the part of defendant is a cause of injury if it “is a substantial factor in bringing about [the injury]”
Unlike California, some other courts have adopted that the substantial factor test is at least at times more plaintiff-friendly than the “but-for” standard
Common Misconceptions of Meaning of “Caused”
▪ Actual causation analysis does not involve a search for the sole cause of victim’s injury
▪ Finding of a causal link between party’s carelessness and victim’s injury does not necessarily entail the conclusion that the party is the only person whose carelessness (or other wrongful conduct) played a role in bringing about victim’s injury
Statistical Evidence
▪ Some courts seem willing to give jurors room to combine statistical evidence with circumstantial evidence from the case before them to conclude that defendant’s carelessness would have made a difference to the plaintiff even though relevant statistics by themselves would seem to suggest otherwise
Causation and Breaches of Affirmative Duty
▪ Courts are disposed towards lenience on issue of causation when dealing with other claims grounded in affirmative duties
▪ When plaintiffs complain they have been injured because of product manufacturer’s failure to warn them of a hidden danger in the product, courts will often adopt a “presumption” that plaintiff would have heeded warning and adapted their conduct if warned
2. Proving Actual Causation Under the Preponderance Standard
Skinner v. Square D Co. (1994)
▪ Facts
Skinner routinely used a homemade tumbling machine he built and designed himself; design of machine made reversing direction of tumbler’s drum a dangerous task
Skinner had connected Square D switch to motor using three wires with insulated “alligator clips” on the ends; reversing direction of machine required operator to disconnect two of the clips by hand and reverse them
Skinner was in his shop working in the room with the tumbler; co-workers found Skinner standing with his hands above his head, each hand grasping an alligator clip with current passing through his body
Skinner threw switch into off position, twisted and fell over dead
▪ Holding
Facts do not manifest a genuine issue of factual causation; offered evidence only established that an accident took place
Adequate circumstantial proof must facilitate reasonable inferences of causation, not mere speculation; reasonable inference: evidence points to any 1 theory of causation, indicating logical sequence of cause and effect
Don’t need to negate all other possible causes, but has to be clearly the strongest hypothesis
▪ Application
Skinner is somewhat unusual in that there were no witnesses to the accident and a relative dearth of circumstantial evidence; ordinarily we would expect the causation issue to be decided by the jury and not the judge as it was in this case
Falcon v. Memorial Hospital (Mich. 1990)
▪ Facts
Nena Falcon, plaintiff’s granddaughter, gave birth on March 21, 1973; moments after delivery, Nena suffered a complete respiratory and cardiac collapse
Attempts to revive her were unsuccessful and she was pronounced dead soon thereafter
Autopsy indicated cause of death was amniotic fluid embolism, an unpreventable complication occurring in approximately 1 out of 10 or 20,000 births
Survival rate is 37.5 % if intravenous line is connected to patient before onset of embolism according to experts; IV line had not been established to Nena; 0% without IV
▪ Holding
Recovery for lost opportunity only where plaintiff establishes patient would not have suffered physical harm but for defendant’s negligence or at least more than probable (> 50%)
Recovery for physical harm on showing that lost opportunity was substantial, albeit less than 50%
Patients engage services of doctors not only to prevent disease and death, but also to delay death and defer or ameliorate suffering associated with disease or death
▪ Application
Loss of opportunity doctrine is an exception to “but-for” test where causation is established despite failing “but-for” test
Loss of opportunity doctrine has been formally adopted by only a handful of state courts in the context of medical malpractice suits; generally only in wrongful death suits (minority rule)
Loss of opportunity does not allow recovery of 100% of “wrongful death” damages, only corresponding loss of x% of survival (e.g. 30% chance of survival = 30% of normal wrongful death damages)
Loss of opportunity doctrine later repealed in Michigan in O’Neal v. St. John Hosp.
3. Multiple Necessary and Multiple Sufficient Causes
Multiple “But-For” Causes
▪ Affirmative duty
Breach of affirmative duty to protect or rescue can count as one of two or more but-for causes of a victim’s injury
▪ Comparative fault
When plaintiff’s recovery is reduced due to comparative fault, plaintiff’s faulty conduct is considered to be one of (at least) two careless but-for causes of plaintiff’s injury
Actual vs. Proximate Cause
▪ Some actual causes will not be deemed proximate causes of harm and thus no liability is attached
▪ Actual causation: a cause of injury, not the cause
Multiple Necessary Causes and Apportionment of Liability
▪ Joint and Several Liability
Entitles injured and not-at-fault plaintiff to recover up to 100 % of damages from one of two or more parties in any proportion ((’s option)
➢ A = 100% and B = 0%
➢ A = 25% and B = 75%
➢ A = 50% and B = 50%
One (or more) of liable parties can bring action against other for claim of contribution to address apportionment of damages
Multiple Sufficient Causes
▪ Conditions where two actors are each of sufficient magnitude themselves to cause injury, but neither could be deemed a “but-for” cause of injury; each actor is treated as a cause of injury (e.g. merging fires)
▪ Also known as “overdetermined” or “duplicative” causation
▪ “But-for” test is suspended and “substantial factor” test used in its place in this situation
Substantial Factor and Trivial Necessary Conditions
▪ As used in the Restatement, not meant to supplant “but-for” test, but to narrow class of “but-for” causes that ought be recognized as a basis for liability by excluding insubstantial or trivial “but-for” causes
▪ Substantial factor aka “material factor”
Pre-empted or Doomed Plaintiffs
▪ Conditions where victim is tortuously injured by an actor, yet it turns out that, because of operation of another independent human or force of nature, victim was about to suffer, or did suffer that same injury
▪ Closely related to multiple sufficient causation
Apportionment
▪ Question of payment is separate question from causation
McDonald v. Robinson (1929)
▪ Facts
Appellants automobiles collided at an intersection and became interlocked; cars were thrown off course towards northwest corner of intersection
Padzensky car struck appellee near corner of curb, knocked her down and dragged her 56 feet under the car until it stopped
▪ Holding
Common intent, purpose and design on part of wrongdoers to do a particular wrong or injury is not always essential to render two or more persons joint tortfeasors
If acts of two or more persons concur in contributing to and causing an accident, and but for such concurrence the accident would not have happened, the injured person may sue the actors jointly or severally and recover against one or all; rule has the support of the great weight of authority [from other jurisdictions]
▪ Application
Illustration of joint and several liability
Aldridge v. Goodyear Tire & Rubber Co. (1999)
▪ Facts
Goodyear supplied some of the chemicals used by Kelly-Springfield in its manufacturing operations
(s allege that they or their decedents developed various diseases as a result of their contact with toxic chemicals they were exposed to during manufacturing process
(s here are fourth group of [Kelly] employees who have sought damages from Goodyear based on similar tort claims; although there were settlements in the first group…, summary judgment in favor of Goodyear has previously been entered in all of the cases comprising the second and third group
▪ Holding
Workers in plant were exposed to many chemicals; Goodyear supplied only 10% of plaintiffs’ list of approximately 200 potentially hazardous chemicals to which they were exposed
Plaintiffs’ principal expert witness testified as many as 28 different chemicals at the plant have the capacity to be substantial contributing cause of cancer if sufficient exposure to each has occurred; only 3 of these are Goodyear-supplied chemicals
▪ Application
Admissibility of Expert Opinions
➢ Daubert requires that when considering admissibility of expert opinion under Rule 702, federal judge must engage in two-part analysis
✓ Reliability inquiry to determine whether proffered expert testimony consists of “scientific knowledge”
✓ Inquiry to ascertain whether proposed testimony is relevant
➢ Daubert proposed several factors for reliability component of test: (1) whether theory or technique used by expert has been tested; (2) theory or technique has been subjected to peer review and publication; (3) known or potential rate of error of the method used; (4) degree of method’s or conclusion’s acceptance within the relevant scientific community
➢ Vague and conclusory terms like “substantial contributing cause” and “knowledge of the scientific literature” standing alone do little to satisfy the reliability requirement
Illustration of “toxic tort” claim involving allegations that victims have contracted illness or disease from exposure to carelessly or defectively manufactured product such as a pharmaceutical product or pesticide; often difficult to establish actual causation and defense will look to establish that factors personal to plaintiff (e.g. genetic factors, other environmental factors, personal health habits) acted as relevant causal agents
Workers’ Comp would preclude claim against Kelly-Springfield as employer but ( could bring action against Goodyear (parent company) as third-party supplier
4. Causation and Burden-Shifting
Alternate Causation
▪ Onus for proving actual causation is placed on each defendant to disprove their carelessness was a cause of plaintiff’s injury
▪ Some jurisdictions allow plaintiff availing themselves of this rule to obtain benefit of joint and several liability
▪ Burden shifting is also permitted in products liability suits alleging failure of manufacturer to adequately warn users of the product of dangers posed
Alternate Causation and Related Tort Doctrines
▪ Multiple Necessary Cause
Tortfeasors acting independently
Careless conduct of two (or more) actors each functions as a “but-for” cause of plaintiff’s injury; alternate causation only requires one actor’s behavior function as a but-for cause
▪ Conspiracy
Tortfeasors acting jointly
Planned effort to injure plaintiff where burden-shifting rule is not necessary; one or more of the parties can be guilty of actual cause while others “aided and abetted”
▪ Concert of Action
Tortfeasors acting jointly
No planned effort or undertaking to injure plaintiff
Market Share Liability
▪ Plaintiff must join each of the possible causers of injury as a party to lawsuit to avail themselves of alternative causation See Sindell
▪ Courts have consistently rejected efforts to expand market share liability to other products such as asbestos, tobacco, handguns, lead-based paint, etc.
▪ Courts declining to broaden market share liability doctrine explain DES cases featured set of conditions rarely seen in combination: (1) existence of systemic reasons, independent of plaintiff’s diligence, for absence of evidence on product identification; (2) ability of plaintiffs to bring before court a group of defendants responsible for almost all sales of product; (3) fact that product in question was entirely generic and fungible in terms of design, manufacture and propensity to cause same illness among differently situated victims; and (4) availability of at least some reliable data on market shares
▪ Conditions for application
Theory presumes amount of harm roughly correlates to market share
Offending drug/product must be generic and identical in design, etc.
Summers v. Tice (1948)
▪ Facts
( and two (s were hunting quail on the open range; each was armed with a 12 gauge shotgun loaded with shells containing 7 ½ size shot
In the course of hunting ( proceeded up a hill, placing hunters at the points of a triangle; view of (s with reference to ( was unobstructed and they knew his location
( flushed a quail which rose in flight to 10-foot elevation and flew between ( and (s; both (s shot at the quall in (’s direction, striking ( with 2 shots
▪ Holding
Both (s were negligent and that as a direct and proximate result of the shots fired by (s, pellets lodged in (’s eye and upper lip; implicit in such a finding is the assumption that the court was unable to ascertain whether the shots were from the gun of one defendant or the other or one from each
Where the matter of apportionment [of blame] is incapable of proof, the innocent wronged party should not be deprived of his right to redress, the wrongdoers should be left to work out between themselves any apportionment
▪ Illustration of concert of action
Sindell v. Abbott Labs. (Cal. 1980)
▪ Facts
(s manufactured, promoted and marketed diethylstilbesterol (DES), a drug which is a synthetic compound of the female hormone estrogen;
Drug was administered to (’s mother and mothers of class she represents for purposes of preventing miscarriage
DES may cause cancerous vaginal and cervical growths in the daughters exposed to it before birth; DES also causes adenosis
Food and Drug Administration ordered defendants to cease marketing and promotion of DES for purpose of preventing miscarriages and to warn physicians and the public that the drug should not be used by pregnant women because of danger to their unborn children
▪ Holding
From a broader policy standpoint, manufacturers are in best position to discover and guard against defects in its products and warn of harmful effects; holding manufacturer liable for defects and failure to warn will provide incentive to product safety
( asserts that Eli Lilly and Company and 5 or 6 other companies produced 90% of DES marketed; if plaintiff joins in action manufacturers with substantial share of DES her mother might have taken, injustice of shifting burden of proof to defendants is significantly diminished
Court
▪ Application
Illustration of market share liability
Extension of Summers holding that between an innocent plaintiff and negligent defendants, the latter should bear the cost of injury
Market share liability outside of California
➢ Hymowitz v. Eli Lilly & Co. (N.Y. 1989): Specifies that each manufacturers market share is to be determined by percentage of the national market for DES, rather than its share of the market in the state or locality in which plaintiff’s mother resided
➢ Conley v. Boyle Drug Co. (Fla. 1990): Held that market share should be calculated at a geographically narrow level, such as state or preferably county in which plaintiff’s mother purchased DES
➢ Collins v. Eli Lilly & Co. (Wis. 1984): Treats defendant pharmaceutical companies as joint tortfeasors
Chapter 5: Aligning the Elements: Proximate Cause and Palsgraf
Alignment Concepts
▪ Duty and causation elements of negligence both contain concept or set of concepts that filters out claims by plaintiffs who can make out each element, yet cannot establish elements connect up with one another in the right way
▪ Proximate Cause
Built into causation element
Additional condition that breach causing injury occurred in a “natural” rather than serendipitous manner
Aligns breach and injury elements
▪ Relational Aspect of Duty
Built into duty element
Additional condition that plaintiff demonstrate breach of duty complained about was duty owed to them and not a duty owed only to persons situated differently
Aligns duty and breach elements
1. Proximate Cause
A. Directness, Foreseeability, and Scope of the Risk
Modern Formulation of Proximate Cause
▪ Union Pump Co. v. Allbritton (Tex. 1995)
use of foreseeability is typical of contemporary courts; arose from two Wagon Mound Australian decisions in 1960s
▪ Wagon Mound
Facts: Wagon Mound was moored at wharf and carelessly released furnace oil into in Sydney Harbor; workers at nearby Morts Dock were repairing the Corrimal using acetylene torches; supervisor at Morts Dock ordered workers to suspend activity and consulted with owner of wharf about possibility oil in harbor might ignite; concluding no risk, supervisor ordered men back to work; next day sparks from welding ignited debris in water, which ignited oil, which resulted in fire destroying Morts Dock and Corrimal
➢ The Wagon Mound (No. 1) (1961)
✓ Holding: Trial court concluded that because spilled oil made direct contact with dock, owners of Wagon Mound were liable for destruction of Morts Dock under Polemis; appeal court found that given trial court’s conclusion that no reasonable person could have foreseen spilling of oil posing risk of fire, defendant could not be held liable for fire; appeal court also concluded that Polemis “should no longer be regarded as good law”
➢ The Wagon Mound (No. 2) (1966)
✓ Holding: concluded that fire was a foreseeable consequence of furnace-oil spill and spill should be deemed proximate cause of damage to Corrimal
Older Formulations of Proximate Cause
▪ Ryan v. New York Central R.R. Co. (N.Y. 1866)
Facts: defendant operated railyard; due to carelessness, sparks from a railroad engine ignited wood in a shed located in yard; fire spread to plaintiff’s house near the railyard and consumed it
Holding: Court of Appeals affirmed judgment for defendant on grounds carelessness was condition, but not proximate cause; “natural and ordinary” consequence of fire being set to travel from source to one other structure, neither natural nor ordinary to spread further – “one-leap rule”
Reasoning: policy decision to prevent imposition of “disproportionate” liability or undue suppression of useful activity by threat of massive liability
Evolution: N.Y. Court of Appeals quickly overturned “one-leap rule” in Webb v. Rome W. & O. R.R. Co. (N.Y. 1872); later decisions held defendant liable for negligence where fire transmitted directly to property by sparks or ignition of materials in its ownership and control, but not liable for damage when fire spreads to plaintiff’s property via property owned by third party
▪ Polemis (1921)
Facts: Furness leased steamship from Polemis; Clause 5 of lease required boat be returned in same condition with reasonable wear and tear, Clause 21 of lease exempted Furness from damage liability in case of fire on board; Ship carried containers of flammable benzene and vapor accumulated in hold; While workers were hoisting containers up to deck, a plank was knocked into the hold and spark ignited fire destroying ship
Holding: Arbitrators concluded fire was attributable to workers’ carelessness because it was a cause of it; Kings Bench on appeal ruled employees’ carelessness directly caused explosion and Furness could not invoke exemption
Reasoning: that workers could not have foreseen that dropping of plank into hold would cause explosion was deemed irrelevant
Union Pump Co. v. Allbritton (1995)
▪ Facts
Fire occurred at Texaco Chemical Company’s facility in Port Arthur, Texas; pump manufactured at Union Pump Company caught fire and ignited surrounding area
(, trainee employee, had just finished her shift and was about to leave plant when fire erupted; she and supervisor Felipe Subia were directed to and did assist in abating fire
( asked to accompany Subia to check problem with nitrogen valve; ( followed Subia over an aboveground pipe rack, approximately 2 ½ feet high rather than going around it – it is undisputed this was the shorter but not safer route
Instead of returning by the route around the pipe rack, Subia and ( again walked across it; ( was injured when she hopped or slipped off the pipe rack
Pipe rack was wet due to fire; ( and Subia were wearing fireman’s hip boots and other firefighting gear at time of injury
▪ Holding
Proximate cause consists of both cause in fact and foreseeability
Legal cause is not established if defendant’s conduct or product does no more than furnish the condition that makes the plaintiff’s injury possible
Court draws parallels with cases where negligence of party draws individual to scene and they are negligently harmed by third party
▪ Application
Allbritton test of foreseeability for proximate cause is typical among contemporary courts
Jolley v. Sutton London Borough Council [2000]
▪ Facts
Boat was brought to the grounds of Hayling Court, placed on a grassed area where children played and abandoned (**attractive nuisance**)
Council placed a sticker on the boat which read “Danger do not touch… unless you are owner” and stated it would be removed within seven days unless claimed; complaints about the boat were made to council by residents
( injured while working underneath jacked up boat attempting to repair it; boat caused plaintiff to suffer broken back and consequent paraplegia
▪ Holding
Type of accident and injury which occurred… was reasonably foreseeable
An occupier must be prepared for children to be less careful than adults…
Occupier is under duty to protect child from danger caused by meddling with such an object by taking reasonable steps in circumstances including, when appropriate, removing object altogether
Fact that precise manner nor extent of injury could not be foreseen is no defense when source of danger is known; “genus, not particulars”
F. Proximate Cause and Intervening Wrongdoing
Superseding Cause
▪ Definition: injurious acts of intervening wrongdoer function to block attribution of responsibility to another, more remote wrongdoer whose wrongdoing was also a but-for cause of victim’s injury
▪ In situations in which judge or jury concludes that intervening third-party misconduct does constitute superseding cause, “remote” defendant is relieved of all liability; when intervening misconduct is held not to constitute superseding cause, both actors are in principle subject to liability to plaintiff
▪ Some commentators maintain practical justification for doctrine has disappeared with advent of comparative fault and move toward apportioned (rather than joint) liability as jury is permitted to allocate responsibility among multiple wrongdoers on a percentage basis; Supreme Court pointedly rejected this argument in recent admiralty case Exxon Co., U.S.A. v. Sofec, Inc. (U.S.1996)
Subsequent Malpractice
▪ Ordinary medical malpractice committed in course of treating injuries created by negligence of a defendant is deemed a foreseeable consequence of wrongfully causing bodily injury to someone and hence is not deemed a superseding cause
Social Host Liability
▪ Non-commercial social hosts are typically not liable to victims of drunk drivers who became intoxicated at host’s party
▪ May be liable if drunk-driving guest is a driving-aged minor
▪ Massachusetts rule: may be liable if host continues to serve guest who is obviously impaired (minority rule)
Pollard v. Oklahoma City Ry. Co. (1912)
▪ Facts
( was engaged in extending lines north from Oklahoma City toward Britton; at one point it was necessary to complete an excavation using blasting powder and dynamite
Powder cans after being emptied, were carelessly thrown aside by workmen; evidence shows that in each of these was “a spoonful to a pint” of blasting powder
Millard Justes, 14-15 years old, discovered the cans and proceeded to gather from them a quantity estimated at ½ to ¾ of a can full of blasting powder; he hid the can nearby and then again behind his father’s house
(, 13 years old, visited Justes family at home and ( and Millard went to a creek to fish; on the way they stopped where the powder was hidden and took some of the blasting powder
( proceeded to set fire to the powder and was burned horribly so that he was disabled for life
Evidence shows the workmen at the blast site saw Millard and other boys retrieving powder and did not attempt to stop them from doing so; work on the extension was done through the contractor of the (, Bennett
▪ Holding
Acts of Millard Justes, his father and mother, and those of plaintiff himself, were not concurring acts of negligence with the original negligent act of defendant company, but were in fact independent, efficient causes, sufficient to break the chain of sequence and thereby render the original act of negligence, not the proximate, but the remote cause, it therefore necessarily follows that the company is not liable to plaintiff for injury complained of
Concurrent cause is one that acts contemporaneously, or independently, with some other or primary cause, which occasions or results in the injury, and which result or injury would not have occurred had one or the other causes been absent
Clark v. E.I. Du Pont de Nemours Powder Co. (1915)
▪ Facts
Agent of appellant came to shoot well with solidified glycerine and after this was done carelessly near the well a quart of solidified glycerine; Joe McDowell, son of farm’s owner, saw explosive and carried it home to prevent injury to himself or fellow worksmen
McDowell’s mother protested so he took the explosive to an abandoned graveyard on the farm and left it there, where it remained for two years; on December 23, 1911 it was found by children of the appellee
The Clark boys returned to the graveyard and picked up the explosive, striking it on a rock for purpose of breaking off a piece to take home, causing an explosion
▪ Holding
Mere intrusion of intervening agency does not always excuse the original wrongdoer
No new power of mischief was communicated to the solidified glycerine by acts of young McDowell; power of doing mischief was inherent in the gylcerine all the time
That some terrible accident was likely to happen in letting it out of the close custody of someone skilled in its use was not only natural and probable, but almost inevitable
That McDowell attempted to prevent its doing damage, but failed on account of lack of sufficient knowledge to dispose of it effectively does not amount to an unrelated and efficient agency to shift the proximate cause from the appellant
▪ Notes
Question of superseding cause is one of fact for the jury
Port Authority of New York & New Jersey v. Arcadian Corp. (1999)
▪ Facts
Port Authority of New York and New Jersey is owner of World Trade Center; on February 26, 1993 a bomb, fabricated by terrorists out of ammonium nitrate, urea and nitric acid, exploded in an underground parking garage at the WTC
Ammonium nitrate, urea and nitric acid used in bomb were sold in New Jersey and bomb was allegedly assembled by NJ residents
(s Hydro-Agri and Dyno Nobel manufactured, designed, marketed, distributed and/or sold the ammonium nitrate used; defendant Arcadian manufactured, designed, marketed, distributed and/or sold the urea used for use as fertilizer
In 1968, Samuel Porter patented process that rendered ammonium nitrate fertilizers non-detonable; in 1985, Porter patent entered public domain, making process available to all manufactures free of license or royalty
It was known that addition of phosphate and other additives to urea prills would decrease or eliminate their use as explosive materials
▪ Holding
(s owed no duty to plaintiff and that the World Trade Center bombing was not proximately caused by (s actions
Manufacturer of a raw material or component part that is not itself dangerous has no legal duty to prevent buyer from incorporating the material or part into another device that is or may be dangerous; manufactures also have no duty to prevent a criminal misuse of their products which is entirely foreign to the purpose for which product was intended
Imposing duty in this case would expand scope of manufacturers’ liability under NJ law, contrary to legislative policy under NJPLA, which has been interpreted as evincing legislative policy to limit expansion of products-liability law
According to NY and NJ law, questions of whether an intervening act severs the chain of causation depend on foreseeability of the intervening act and should be determined by finder of fact; however in appropriate circumstances, the court may resolve the issue as a matter of law, those cases generally involve independent intervening acts which operate upon but do not flow from the original act
( is unable to allege facts showing that an adequate warning would have prevented harm
2. The Persistent Puzzle of Palsgraf
Palsgraf v. Long Island Railroad Co. (1928)
▪ Facts
( was standing on platform of (’s railroad; a train stopped at the station bound for another place
Two men ran to catch it; one of the men, carrying a package, jumped aboard the railroad car, but seemed unsteady as if about to fall
Two guards, one on the car and another on the platform assisted the man and in doing so the package was dislodged and fell upon the rails; package was of small size and covered by a newspaper – it actually contained fireworks but nothing about its outward appearance was conspicuous
Fireworks exploded when they fell down and shock of explosion threw down some scales at other end of the platform; the scales struck and injured (
▪ Holding [Cardozo]
Negligence is not a tort unless it results in the commission of a wrong and the commission of the wrong imports the violation of a right
Plaintiff must show a “wrong” to herself and not merely a “wrong” to someone else, nor conduct “wrongful” because unsocial, but not a “wrong” to anyone
▪ Dissent [Andrews]
Everyone owes to the world at large a duty of refraining from those acts that may unreasonably threaten the safety of others; not only is the wronged to whom harm might reasonably be expected to result, but he also who is in fact injured, even if he be outside what would generally be thought the danger zone
▪ Notes
Illustrates relational aspect of duty to breach as applied to Palsgraf
Influential courts, including the California Supreme Court and later iterations of the New York Court of Appeals, have proceeded to meld Cardozo’s and Andrew’s Palsgraf opinions in prominent decisions such as Rowland v. Christian
Petitions of the Kinsman Transit Co. (1964)
▪ Facts
MacGilvray Shiras, owned by Kinsman Transit Company, was moored at deck of Concrete Elevator, operated by Continental Grain Company, three miles upstream of Michigan Avenue Bridge; none of her anchors had been put out
Large chunks of ice and debris began to pile up between Shiras’ bow and bank; deadman to which her No. 1 mooring cable had been attached pulled out of ground – having not been properly constructed or inspected
Stern lines parted and ship drifted into current; shipkeeper took no action prior to ready anchors and improperly released anchors when ship broke loose
Shiras floated downstream and struck the Michael K. Tewksbury; collision caused the Tewksbury’s lines to part and she too drifted downriver followed by the Shiras; collision also caused damage to the Druckenmiller which was moored opposite the Tewksbury
Several calls were placed to warn the crew of the Michigan Avenue Bridge to raise the bridge; crew failed to promptly do so and Tewksbury crashed into its center; first crash was followed by second when south tower of bridge fell
Shiras and Tewksbury wedged themselves so as to dam the flow of the river, causing flooding nearly three miles upstream; two of bridge crew suffered injuries and north tower of bridge later fell, damaging adjacent property
▪ Holding [Cardozo]
Damages resulted from same physical forces whose existence required exercise of greater care than was displayed and were of the same general sort that was expectable, unforeseeability of the exact developments and extent of the loss will not limit liability.
Continental, Kinsman and City of Buffalo held jointly liable
Actor whose negligence set a dangerous force in motion is not saved from liability for harm it caused to innocent persons solely because another has negligently failed to take action that would have avoided harm; stems from discredited notion that only the last wrongful act can be a cause
▪ Notes
In subsequent case, Second Circuit found that same defendants were not liable for economic losses caused to carriers who could not unload wheat from ships due to negligent damming of Buffalo River; court found connection between defendants’ negligence and claimants’ damages “too tenuous and remote” to permit recovery
Chapter 6: Negligence Per Se
Statutes and Torts
▪ Statutory torts: statute defines wrong, creates right of action
▪ Statutory abolition: statute eliminates a common law tort (e.g. Mussivand Anti-heart balm statutes)
▪ Statutory substitutes: workers compensation (Aldridge)
▪ Statutory extension: “standing” to sue/bring suit expanded (e.g. Wrongful Death Acts allow family to sue for tortious killing of decedent)
▪ Statutory standards of conduct displace jury
Negligence per se
Regulatory compliance
Negligence Per Se
▪ Negligence per se: Doctrine of negligence law that incorporates standards of behavior contained in criminal or regulatory statutes that, on their face, do not say anything about tort liability
▪ As employed in a majority of jurisdictions, doctrine of negligence per se permits negligence ( to satisfy breach element of cause of action by proving defendant violated certain kind of statutory rule of conduct; relieves ( of burden of proving that defendant violated common law’s reasonable person standard – conduct is per se unreasonable in that state legislature has pronounced it so
▪ A few jurisdictions treat doctrine of negligence per se as stating a rule that statutory violations may be introduced as evidence of negligence
▪ Plaintiff who benefits from negligence per se must still prove actual cause
▪ Judge determines if NPS instruction is to be given
▪ Where conditions for negligence per se are not satisfied, plaintiff may still argue ordinary negligence, plaintiff failing negligence per se test not likely to succeed on ordinary negligence claim
Conditions for Application of Negligence Per Se
▪ Doctrine only applies to violations of statutes that are intended to set standards of conduct, rather than to serve record-keeping or other administrative functions
Most courts hold that the victim of a car accident cannot conclusively establish fault on part of defendant driver simply by proving that she was operating her vehicle without a valid driver’s license
Courts have held that medical malpractice plaintiffs cannot establish fault simply by proving that their treating physician was unlicensed
▪ Establishing violation of a conduct-oriented statutory command is necessary to make out a claim for negligence per se, but is not sufficient
Party seeking to invoke doctrine must also establish that law was meant to protect a class of persons including plaintiff
Party seeking to invoke doctrine must also establish that law was meant to prevent sort of injury suffered by plaintiff
Excused Violations
▪ Courts recognize certain grounds on which actors who have violated statutes are nonetheless excused from being held per se at fault
Young children – plaintiff is left to pursue case under common law standards of reasonableness as they apply to children
▪ Some courts will excuse violations where there is evidence that violation of statue was more prudent course of conduct for defendant to follow
Tedla v. Ellman (1939): plaintiff walking along side of busy road with her back to oncoming traffic in violation of statute requiring pedestrians to walk so as to face oncoming vehicles; court rejected defendant’s argument that plaintiff’s conduct constituted per se contributory fault, concluding traffic and road conditions on road were such that plaintiff had chosen safer course by violating statute
▪ Courts may also deem statutory violations not to be instances of per se carelessness if defendant can show that it was unable despite reasonable diligence, to comply
Busby v. Quail Creek Golf & Country Club (Okla.1994): country club can be held negligent per se for serving alcohol to minor plaintiff in violation of statute; however club will be excused from violation if it establishes that it had no means of knowing that the plaintiff was a minor because she produced a realistic false I.D. and appeared to be over 21
▪ Decisions such as Busby and Tedla effectively convert doctrine of negligence per se into device by which the burden of proof on the issue of fault is shifted from the plaintiff to the defendant
Regulatory Compliance
▪ Many jurisdictions have adopted statutes under which compliance can defeat or limit liability; they are typically invoked in response to “products liability” claims against manufacturers and are linked to manufacturer having satisfied a set of safety procedures or protocols set by legislature or regulatory agency
▪ Common law treats violation and compliance assymetically
Violence = fault/breach
Compliance ≠ no fault/no breach (but jury is instructed to take into account compliance in assessing breach)
▪ Federal Preemption of State Tort Law
Valid federal statute trumps valid state statute (supremacy clause)
Congressional intent when creating federal regulatory scheme is considered when determining if state tort suits are precluded
US Supreme Court increasingly inclined to find Congressional intent to preempt in ambiguous statutes
Dalal v. City of New York (1999)
▪ Facts
( stopped at stop sign and his vehicle was struck on driver’s side by vehicle operated by ( when he entered intersection
( testified that she attempted to swerve out of way but could not avoid collision; ( further testified that although she was nearsighted and required prescription glasses, she was not wearing them at time of accident
Vehicle and Traffic Law § 509(3) provides that “no person shall operate any motor vehicle in violation of any restriction contained on this license”; ( testified that her NY State driver’s license contained restriction requiring her to wear corrective lenses while driving
▪ Holding
Statute sets up a standard of care, the unexcused violation of which is negligence per se
▪ Reasoning
Absence or possession of driver’s license relates only to authority for operating the vehicle and not to the manner thereof; a restriction placed upon the license requiring the wearing of glasses when driving relates directly to actual operation of the vehicle
Bayne v. Todd Shipyards Corp. (1977)
▪ Facts
( sustained injuries while unloading goods being delivered to (’s premises; ( was not an employee of (, but rather of the trucking company engaged in the delivery
While unloading these goods, ( fell from a loading platform; ( contended (’s loading platform lacked a guardrail required by a safety standard regulation promulgated by the Department of Labor and Industries, pursuant to statute
Statute in effect at time of injury imposed duty upon Director of Labor and Industries to promulgate safety regulations to furnish workers a place of work which is as safe as is reasonable and practicable under the circumstances, surroundings and conditions
Pursuant to this authority, Director of Labor and Industries adopted WAC 296-25-515: “All elevated walks, runways or platforms, except on loading or unloading sides of platforms, if four feet or more from floor level, shall be provided with a standard railing on platforms
▪ Holding
Court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment or an administrative regulation whose purpose is found to be exclusively or in part to protect a class of persons which includes the one whose interest is invaded
▪ Reasoning
Statute requires safe place of work for workmen, it does not limit it to employees of defendant employer; worker who is lawfully on premises in pursuit of his own employment and at invitation of third party is entitled to benefit of statute and the regulation
Victor v. Hedges (1999)
▪ Facts
( Thermatech owned a Ford Explorer that ( Hedges was driving with owner’s consent; at approximately 10pm Hedges parked the Explorer on the sidewalk in front of his apartment building to show ( his new compact disk player
Due to construction, northbound traffic on the street was routed into a single lane nearest the curb where Hedges was parked; Williams was headed northbound in a Ford Aerostar van
Williams looked down to adjust tape deck and his van drifted to the right and front and rear passenger side tires hit the curb, causing them to blow out; van ran into ( and the Explorer
Vehicle Code section 22500 prohibits parking on a sidewalk
▪ Holding
Statute in question was not designed to prevent the type of occurrence that resulted in plaintiff’s injury and plaintiff has failed to raise a triable issue of fact that an ordinarily prudent person in Hedges’s place would have foreseen an unreasonable risk of harm to plaintiff
▪ Reasoning
Reasonable people would not conclude that Hedges’s act of taking plaintiff to sidewalk subjected her to unreasonable risk of harm; plaintiff relies solely on Hedges’s knowledge of unusual road conditions to establish his negligence
Chapter 7: Defenses
1. Comparative Negligence and Comparative Responsibility (Fault)
Contributory Negligence
▪ Contributory negligence: any carelessness on part of plaintiff that contributes to injury results in exoneration of defendant and plaintiff suffering full burden of loss; so long as carelessness on part of plaintiff is determined to have been a but-for cause of injury (at fault ( + at fault ( = ( loses)
▪ Intentional Torts and Last Clear Chance
Rule of contributory negligence did not extend to claims alleging recklessness or intentional wrongdoing on part of defendant; rule remains true even with abandonment of contributory negligence in favor of comparative fault
Harshness of contributory negligence was ameliorated both by informal practices and explicit legal rules
➢ Jurors may have declined to assign fault to plaintiff in awareness of doctrine
➢ Special rules including doctrine of last clear chance
✓ Doctrine held that if a defendant has last opportunity to prevent accident resulting from careless acts of both defendant and plaintiff, defendant will not enjoy protection of contributory negligence defense
✓ Plaintiff seeking to invoke doctrine bears burden of proof
▪ Decline of Contributory Negligence
Dissatisfaction with regime of contributory negligence mounted in the 20th-century; from 1970 to 1990, contributory negligence was eliminated and replaced with comparative responsibility schemes in all but five U.S. jurisdictions (Alabama, North Carolina, Virginia, Maryland, D.C.)
Adoption was effected through both judicial decisions and legislation
Comparative responsibility regimes all do away with idea that any degree of carelessness on part of plaintiff constitutes per se bar to recovery
▪ Comparative Fault vs. Comparative Responsibility
Comparative responsibility: refers generally to rules for allocating responsibility and liability between plaintiff and defendant
Comparative fault: refers to cases of comparative responsibility in which comparison at issue is between or among parties’ respective degrees of carelessness
Comparative Fault
▪ Effect of plaintiff’s carelessness on claim
No effect
➢ Treat it as irrelevant to negligence defendant’s liability; which is how it is treated with respect to intentional torts
➢ This option never earned serious consideration within American tort law
Divided damages
➢ Responsibility split evenly among number of parties whose fault is found to have contributed to plaintiff’s injury; careless plaintiff with claim against one careless defendant receives 50% of damages while two careless defendants yields 66.67% of damages
➢ Admiralty law long observed this scheme for property damage
▪ In vast majority of jurisdictions, finding that plaintiff’s fault contributed to injury will entail reduction in recoverable damages corresponding to percentage fault assigned to him
▪ Apportionment and the Jury
Suits in admiralty law and against government entities proceed without juries
Normal negligence suits that go to verdict usually require jury to bear primary responsibility for implementing system of comparative responsibility; judges often require jury to complete special verdict form that leads jury through series of yes or no questions as to whether plaintiff has made out each element of prima facie case and whether defendant has established any applicable defenses
Modified Comparative Fault
▪ Plaintiff’s fault operates to defeat cause of action if it passes a certain threshold in relation to fault of defendant; compare to pure system that simply reduces recovery proportionally
▪ Wisconsin’s law will have plaintiff’s suit dismissed as matter of law if jury assigns more fault to plaintiff (> 50%) than to defendant
▪ When plaintiff sues multiple defendants, jurisdiction may adopt rule that careless plaintiff is barred from suing if comparative fault is equal to total fault of all those being sued
▪ 2/3rds of comparative fault states have adopted modified comparative fault
Jury Information
▪ Most states require or permit trial judges to inform jurors of effects of assignations of percentage fault via instructions or special verdict forms
▪ Some state courts and legislators have forbidden trial judges from informing jurors of such effects; concern is that jurors will adjust calculation of percentage fault to avoid seemingly harsh legal consequences following from “true” assignment of percentages
▪ Most modified comparative fault states do not inform jury of legal significance
Comparative Fault and Causation
▪ Doctrine requires finding of fault and actual causation; two famous New York cases illustrate this point
Martin v. Herzog (N.Y.1920)
➢ Facts: ( driving car at dusk on wrong side of center line slammed into buggy driven by (’s decedent and operating without lights in violation of NY statute
➢ Holding: [Cardozo] held that defendant could rely on statute to establish that plaintiff’s conduct was per se unreasonable; establishing unreasonableness of the plaintiff’s conduct was not sufficient to make out defense of contributory negligence; plaintiff’s statutory violation would defeat claim only if it actually played a role in bringing about injuries suffered by decedent
Spier v. Barker (N.Y.1974)
➢ Facts: ( was not wearing seat belt and was ejected from car which rolled onto her and broke her leg; (’s expert witness testified that ( likely would not have suffered any serious injury if she had worn her seatbelt
➢ Holding: New York Court of Appeals reasoned (’s failure to use seatbelt could not constitute contributory negligence because there was no evidence (’s omission was a but-for cause of the accident; court also held jury could consider (’s failure to wear seatbelt in determining if she failed to take reasonable steps to “mitigate” her damages
Debate over Spier
➢ Spier and decisions rejecting it both accept that (’s fault must play causal role in producing plaintiff’s injury before it may be deemed “comparative fault,” they disagree over how to specify that role
➢ Spier holds (’s carelessness must contribute to bringing about accident that injured ( before it can be deemed comparative fault
➢ Courts rejecting Spier conclude that as long as (’s carelessness contributes to bringing about injury that resulted from accident, it may be treated as comparative fault, even if it did not make its contribution until after the accident
United States v. Reliable Transfer Co. (1975)
▪ Facts
Tanker owned by ( ended up stranded on a sandbar; ( sued defendant for failing to maintain flashing light that would have helped ship’s captain avoid sandbar
(’s boat was equipped with look-out, chart, searchlight, radiotelephone and radar
District court found vessel’s grounding was caused 25% by defendant for failure to maintain light and 75% by fault of plaintiff’s boat captain
▪ Holding
When two or more parties have contributed by their fault to cause property damage in a maritime collision or stranding, liability for such damage is to be allocated among the parties proportionately to the comparative degree of their fault, and that liability for such damages is to be allocated equally only when the parties are equally at fault or when it is not possible fairly to measure the comparative degree of their fault
▪ Reasoning
Rejected “equal damages” rule in following Brussels Collision Liability Convention of 1910 that provides for apportionment of damages on basis of “degree” of fault whenever possible
|Evaluation of recovery in Reliable Transfer under various doctrines (assuming $100k damages) |
|Contributory negligence |$0 (any ( fault precludes recovery) |
|Divided damages |$50,000 (50/50 split) |
|Pure comparative fault |$25,000 (( 75% at fault) |
|Modified comparative fault |$0 (( fault > 50%, precluding recovery) |
Hunt v. Ohio Dept. of Rehabilitation & Correction (1997)
▪ Facts
( operating snow-blower, chute became clogged with snow; ( put snow-blower in neutral position and turned “Power Take Off” switch to “off” position
( inserted hand inside chute and began cleaning out packed snow; (’s hand became stuck in machine and several fingers on her hand were partially severed
Prior to assignment that day, ( had been instructed by Officer Jenkins on operation of snow-blower; training session lasted approximately 10 minutes
This was first time Jenkins had trained anyone on operation of snow-blower, in spite of no prior experience operating snow-blower; he had been trained one week prior by Meyers, head of maintenance department
▪ Holding
( has proven that ( breached its duty of reasonable care; however, contributory negligence attributable to ( is 40%
▪ Reasoning
Court finds ( owed ( duty to warn her of potential risks associated with operation of snow-blower and is therefore negligent
(’s own negligence was not greater causative factor, but constituted 40% of cause of injury as ( disregarded potential hazard and failed to use common sense when she inserted her hand in chute of snow-blower
Baldwin v. City of Omaha (2000)
▪ Facts
( was college football player hospitalized and medicated for severe mental illness; weeks after discharge he had a psychotic episode, endangering himself and others
Two female police officers attempted to subdue him to take him into custody and one officer shot ( in ensuing scuffle, leaving him permanently paralyzed from chest down
At bench trial, ( established to trial judge’s satisfaction that he was injured due to officers acting unreasonably in effecting arrest; (s established that ( was also negligent, if not reckless, for deciding to discontinue his anti-psychotic medication with understanding doing so might cause him to act in ways dangerous to himself and others
Judge assigned 55% fault to ( and 45% to (s
Nebraska’s modified comparative fault regime barred recovery if claimant’s fault contributes to injury in equal or greater degree than fault of all persons against whom he seeks recovery; thus once trial judge allocated greater fault to (, it was compelled to enter judgment for (s
▪ Holding
There was credible evidence to support district court’s apportionment of fault
▪ Notes
In effect, same result was reached under Nebraska’s new comparative fault regime (implemented in 1992), as would have been reached under old contributory negligence regime that barred claims brought by more than slightly at fault claimants
2. Assumption of Risk
A. Express Assumption of Risk
▪ Defense frequently raises issues that rest on boundary line between tort and contract
▪ Express Assumption of Risk
Victim barred from recovering because victim formally ceded or abandoned right to redress that tort law would otherwise confer
Jones v. Dressel (1981)
▪ Facts
( signed a contract on November 17, 1973, at 17 years of age, with (; contract allowed ( to use (’s recreational skydiving facilities, which included use of airplane to ferry skydivers to parachute jumping site
Covenant not to sue and clause exempting ( from liability were included in contract; contract also contained alternative provision which would have permitted ( to use defendant’s facilities at increased cost, but without releasing defendant from negligence liability
( turned 18 and continued to use facilities before suffering serious personal injuries in airplane crash after takeoff
( commenced suit nearly two years after turning 18 years old
▪ Holding
( ratified contract, as a matter of law, by accepting benefits of contract when he used (’s facilities after turning 18
▪ Reasoning
Contract not void for reason of adhesion contract as there was no showing that parties were greatly disparate in bargaining power, that there was no opportunity for negotiation, or that services could not be obtained elsewhere
In determining whether an exculpatory agreement is valid, there are four factors which court must consider: (1) existence of duty to public; (2) nature of service performed; (3) whether contract was fairly entered into; (4) whether intention of parties is expressed in clear and unambiguous language
▪ Notes
Illustration of upholding of express assumption of risk
Outlier as express warranties of liability are often struck down by courts
Dalury v. S-K-I, Ltd. (1995)
▪ Facts
( sustained serious injuries when he collided with a metal pole forming part of the control maze for a ski lift line while skiing at Killington Ski Area
Before the season started, ( had purchased a midweek season pass and signed a form releasing ski area from liability
▪ Holding
Exculpatory agreements which defendants require skiers to sign, releasing defendants from all liability resulting from negligence, are void as contrary to public policy
▪ Reasoning
According to Restatement, exculpatory agreement should be upheld if: (1) freely and fairly made, (2) between parties who are in equal bargaining position, (3) no social interest with which it interferes
Whether or not defendants provide essential public service does not resolve public policy question in the recreational sports context; when substantial number of sales take place as a result of seller’s general invitation to public to utilize facilities and services in question, legitimate public interests arises
Major public policy implications are those underlying law of premises liability; if defendants were permitted to obtain broad waivers of their liability, important incentive for ski areas to manage risk would be removed, with public bearing cost of resulting injuries
Reliance on private nature of defendants’ property would be inconsistent with societal expectations about privately owned facilities that are open to general public
▪ Notes
Illustration of rejection of express assumption of risk
Courts often refuse to enforce even valid contractual provisions that purport to waive liability for personal injury as a matter of public policy
Distinguishing Dalury from Jones
➢ Skydiving is more dangerous than skiing
➢ Skiing is more akin to premises liability
➢ Injury in Jones does not occur during primary activity, while injury in Dalury does
B. Implied Assumption of Risk
▪ Implied Assumption of Risk
Victim knowingly and voluntarily took on risk that they might be injured by careless conduct on the part of the defendant(s), yet freely chose to proceed so as to expose themselves to risk
Implied assumption of risk finds a “natural” home in recreational activities; by their nature these tend to be non-mandatory and involve an element of physicality and inherent risks of physical harm
Courts from 1850 to 1920 often deemed industrial workers to have assumed risk of various job-related dangers, one of several plaintiff-unfriendly negligence doctrines of the period
Knight v. Jewett (Cal.1992): California Supreme Court distinguishes between “primary” and “secondary” implied assumption of risk
➢ Primary: special rule of “no duty” under which participants in certain kind of activity (usually recreational sport) simply by virtue of participation are owed no duty of reasonable care by other participants
✓ Crucial differences between primary assumption of risk and traditional defense of implied assumption of risk
□ Poses question of law for court rather than question of fact for jury (no-duty doctrine)
□ Question is not whether participant actually appreciated and chose to encounter relevant dangers; if participation was voluntary and risk realized was one of those “inherent” in activity, doctrine applies even if plaintiff did not know of relevant dangers or sought not to be subjected to them while participating
➢ Secondary: implicit assumption of risk that led to comparative treatment of defendant’s and plaintiff’s fault
Implied Assumption of Risk and Comparative Fault
▪ Many jurisdictions have ruled by statute or judicial decision that adoption of comparative fault has completely eliminated implied assumption of risk as a distinct defense; defendant proving elements of this doctrine will no longer automatically be entitled to complete defense, but proof is factored into jury’s percentage allocation of fault
▪ Same jurisdictions have not eliminated express assumption of risk
Implied Assumption of Risk Statutes
▪ New York
New York law retains implied assumption of risk as distinctive affirmative defense, but has converted it into partial rather than complete defense
Defendant subject to NY law can request that jury be instructed to assign percentage of responsibility to plaintiff either because plaintiff carelessly contributed to own injury or because plaintiff assumed risk of defendant’s negligence; Court of Appeals has interpreted statute to include a complete bar to recover for those injured by carelessness while participating in sports or recreational activities
▪ Inherent Risk Statutes
Many states that have merged implied assumption of risk and comparative fault exclude certain activities from that merger (de facto IAoR)
➢ Skiers assume risks “inherent” in sport, including risks associated with use of ski lifts and tows
➢ Specify general assumption of risk defense against any negligence claims based on injuries arising out of participation in any sport
Implied Assumption of Risk vs. Breach
▪ [Cardozo] Volenti non fit injuria (“to one who chooses risk, no wrong is done) – the timorous may stay at home
Bailments and Common Carriers
▪ Bailment occurs when one person hands over personal property to another for safekeeping
▪ Owner of property is referred to as “bailor” and temporary custodian as “bailee”
▪ Bailees often attempt to relieve themselves from liability of all damage caused to owner’s property during the bailment, even if caused by bailee’s carelessness; common example is provided by parking garages that disclaim liability for “any damage” to cars parked on premises
▪ Most courts have refused to permit commercial bailees to exculpate themselves in this manner on ground of public policy; same holds true for attempts of common carriers – commercial operators of boats, buses, planes, taxis and trains
Smollett v. Skayting Dev. Corp. (1986)
▪ Facts
( , an experience skater, injured at a skating rink owned by (
( noticed there were no guardrails and discussed this with owner, who told them this new design was the practice at many new rinks to further safety
Several signs reading “skate at your own risks” were posted in the rink
▪ Holding
There was insufficient evidence to find that plaintiff had not assumed the risk of injury
▪ Reasoning
Although Virgin Islands enacted comparative negligence statute, removing contributory negligence as bar to recover; assumption of risk can still be applied to “non-negligent conduct which constitutes waiver or consent” but which involved no negligence
Evidence in case shows ( fully understood risks; plaintiff admits she was aware there were no guardrails and that area around rink was carpeted
▪ Illustration of implied assumption of risk
▪ Breach = missing guardrail
▪ Two ways to view (’s decision to skate despite missing guardrail
1) ( opted to face danger posed by missing rail (IAoR = complete bar to recovery)
2) ( failed to exercise ordinary care for her own safety (comparative fault = recovery based on % fault and whether it is pure/modified system)
3. Immunities and Exemptions from Liability
Immunity in Tort Law
▪ Immunity: complete defense to liability granted to certain entities, as well as to actors in certain relationships
Intra-familial Immunity
▪ Designed to protect family members from suing each other in tort
Spousal Immunity
➢ Historically husbands were immune from suit by their wives for intentionally or carelessly inflicting personal injuries on them or negligence
➢ Common law courts justified common law immunity on ground that domestic relations formed domain of “private” interaction with which they ought not interfere
➢ By 1970s majority of states had partially or completely eliminated spousal immunity
Guest statutes: require family members of a driver to prove that their injuries resulted from gross negligence or recklessness, rather than simple negligence
Parental Immunity
➢ Relatively late doctrinal development; Mississippi was first state to declare parents immune from tort suits by children in 1891
➢ Most states have now cut back substantially on this immunity, though many have not abolished it outright, particularly for negligence claims
➢ Authority of parents to discipline child using physical force or coercion free from threat of tort liability is often given recognition in the law not via parental immunity doctrine, but instead by privilege of “reasonable parental discipline”; disciplinary privilege is lost if abused
➢ New York and other states retain immunity for claims that assert negligent parental “supervision”
Charitable Immunity
▪ Was of great significance in early 20th-century as most hospitals were run as charitable institutions
▪ Blocked application of respondeat superior to charitable organizations; victim of malpractice committed by doctor employed by hospital owned by charitable institution could sue doctor but not hospital
▪ Doctrine justified by argument that (1) immunization operates as subsidy for non-profit enterprises; and (2) one seeking benefit of charitable institution’s good works is deemed to have explicitly waived right to sue if works are undertaken carelessly
▪ Most states have rejected across the board charitable immunity but provide charities other protections, such as damage caps
▪ To encourage volunteerism some states enacted statues granting partial or complete immunity to individuals in course of volunteer work; in 1997, Volunteer Protection Act was signed into law to provide immunity from liability for simple (but not gross) negligence to individual volunteers
Sovereign Immunity
▪ Held that courts have no authority to order federal or state governments into court at behest of private citizens and that injured plaintiffs are not permitted to include federal or state governments as parties to civil lawsuit
▪ Federal Tort Claims Act (FTCA)
Enacted by Congress in 1946
Legislative waiver of federal sovereign immunity in exchange for special procedural rules designed to provide greater protection from liability for governmental entities than are enjoyed by private actors
Primary effect of FTCA is to treat federal government, for purposes of tort liability, as if it were a private employer; has effect of rendering U.S. subject to doctrine of respondeat superior, under which it is held vicariously liable for tortious acts by its employees committed within scope of their employment
Act does not accord claimants the right to jury trial; judges determine all issues of fact and law
Claimants cannot obtain punitive damages against the government, even if such damages could be awarded if defendant were a private entity
In last 20 years, courts have tended to interpret discretionary function exception more broadly
United States v. Gaubert (U.S. 1991): Court declined to analyze discretionary function issue in terms of categorical distinction between “policy” and “day-to-day” decisions, instead directing courts to determine whether conduct in question called for employees to exercise discretion while pursing the government’s policy objectives
Feres v. United States (U.S.1950): Feres doctrine still exists, holding that there is implicit in FTCA a broad rule barring any suits by military servicemen against government for injuries arising out of, or incident to, their service
▪ Personal Immunity of Government Employees
Federal employees have been exempted by statute known as Westfall Act from being held individually liable for torts committed in scope of their employment
Westfall Act contains exception permitting imposition of individual liability for violations of constitutional rights
▪ Municipal and local Governments
Courts tended to exempt city and local governments from liability for governmental activities – such as provision of police force or fire department – as opposed to proprietary activities – such as operation of a local utility
▪ Public Duty Rule
Rule does not create an immunity defense but instead provides a rule affecting ability of plaintiff to establish duty element of prima facie case of negligence
Typically arises in cases alleging that local governmental entity has acted carelessly in failing to perform, or in performing, an affirmative duty; examples include enforcement of building codes, delivery of fire department services, mistaken release of parolee by parole board
Courts invoking rule deny liability on ground that, although government owes certain duties to public at large, it does not owe those duties to any individual member of public; thus no individual has “standing” to sue for damages caused by breach of such duty
▪ Exceptions
Exceptions track the exceptions to common law rules on duties to rescue
➢ Government actors made a particular undertaking to plaintiff
➢ Government actors interacted with plaintiff in manner creating “special relationship”
Kircher v. City of Jamestown (U.S.1981)
➢ Extended Riss and identified requirements of “special relationship”: (1) assumption by municipality, through promises or actions, of affirmative duty to act on behalf of party who was injured; (2) knowledge on part of municipality’s agents that inaction could lead to harm; (3) some form of direct contact between municipality’s agents and the injured party; (4) party’s justifiable reliance on municipality’s affirmative undertaking
Riley v. United States (2007)
▪ Facts
( car broadsided by pickup truck when entering intersection, claimed mailboxes obscured his view
Before collision, residents near Christopher Drive complained to Postmaster about location of mailboxes and presented signed petition requesting they be moved; Postmaster refused, citing cost
After (’s injuries, USPS received letters and second petition; relocation of mailboxes was then approved
▪ Holding
Affirmed dismissal of complaint for lack of subject matter jurisdiction under FTCA
▪ Reasoning
Berkovitz v. United States (U.S. 1988): two-part test determines when discretionary function exception applies: (1) conduct at issue must be discretionary, involving “element of judgment or choice” ; and (2) that judgment at issue be of kind that discretionary function exception was designed to shield
USPS’s decision on where to locate mailboxes was discretionary, involving element of judgment or choice; no federal statute or rule mandated USPS to locate mailboxes at any particular place
▪ Notes
Illustration of sovereign immunity, under FTCA
DFE lowers burden on government defendant; only have to prove decision was “discretionary” and not “reasonable”
Lapse in judgment by USPS driver would NOT qualify for DFE
Riss v. City of New York (1968)
▪ Facts
( was for more than six months terrorized by rejected suitor; suitor threatened to have plaintiff killed or maimed if she did not yield to him
(’s repeated pleas to police for aid were ignored;suitor carried out threats and hired thug threw lye in plaintiff’s face, blinding her in one eye, costing her good portion of vision in the other and permanently scarring her face
▪ Holding
No warrant in judicial tradition or in proper allocation of powers of government for the courts, in the absence of legislation, to carve out area of tort liability for policy protection to members of public
▪ Reasoning
Case involves provision of governmental service to protect public from external hazards and control activities of criminal wrongdoers; amount of protection that may be provided is limited by resources of community and by considered legislative-executive decision as to deployment of those resources
For courts to proclaim new and general duty of protection in law of tort would inevitably determine allocation of limited community police resources without predictable limits; this is quite different from predictable allocation of resources and liabilities in provision of public hospitals, rapid transit systems and highways
Extension of such responsibilities should be determined legislatively
▪ Notes
Illustration of “public duty” rule, de facto immunity as ( alleges affirmative duty breached
Strauss v. Belle Realty Co. (1985)
▪ Facts
Failure of Con Ed’s power system left most of NYC in darkness; ( resided in apartment building in Queens where Con Ed provided electricity to (’s apartment through agreement with him and to building’s common areas through separate agreement with Belle Realty
Water to apartment was supplied by electric pump and ( had no running water for duration of blackout; on second day of power failure, he set out for basement to obtain water, but fell on the darkened, defective basement stairs, sustaining injuries
▪ Holding
In case of a blackout of a metropolis of several million residents and visitors, each in some manner necessarily affected by a 25-hour power failure, liability for injuries in building’s common areas should, as a matter of public policy, be limited by the contractual relationship
▪ Reasoning
Responsibility of courts, in fixing orbit of duty, “to limit legal consequences of wrongs to controllable degree”
While limiting recovery to customers in this instance can hardly be said to confer immunity from negligence on Con Ed, permitting recovery to those in plaintiff’s circumstances would violate court’s responsibility to define an orbit of duty that places controllable limit on liability
▪ Notes
Illustration of “public duty” rule, de facto immunity for public utilities
Note that landlord is cheapest cost avoider here as defined by Calabresi
III. Intentional Torts
Chapter 9: Battery, Assault, and False Imprisonment
1. Introduction
Intentional Torts
▪ Causes of Action
Battery
Assault
False imprisonment
Intentional infliction of emotional distress (IIED)
Trespass to property
▪ Contrast with Negligence
Intentional torts cannot be committed entirely by accident
Liability requires actor being sued act with intent to accomplish certain kind of consequence, or with actual knowledge that such consequence would come about
2. Battery and Assault: Elements
▪ Battery requires (among other things) actual touching of victim, either direct or indirect, by wrongdoer
▪ Assault occurs when person intentionally acts so as to cause another to apprehend that they are about to suffer certain kind of contact
▪ Battery vs. Assault
Person D, while looking person P in the eye, points a real gun at P with his finger on the trigger – D commits assault
Person D, while looking person P in the eye, points a real gun at P with his finger on the trigger, fires gun and bullet hits P – D commits assault and battery
Person D approaches person P from behind and shoots P by surprise – D commits battery, no assault
A. Battery
▪ Battery: Purposeful striking or touching of one by another – the intentional invasion of plaintiff’s personal space; infliction of harmful or offensive contact by an actor upon another with intent to cause such contact
▪ Elements of battery (prima-facie case)
A acts (act element is rarely litigated)
Intending to cause a contact with P of a type that is harmful or offensive; and
A’s act causes such contact
▪ Contact Element
Touching need not be flesh-on-flesh, nor directly caused to give rise to battery claim
Shootings that cause bodily injury to another can count as battery, assuming other elements are met; as can attack by dog ordered by dog’s owner
Interest underlying tort of battery is controlling others’ access to one’s body; in protecting that interest, tort law creates protective zone or space around body by rendering actionable certain contacts with things closely connected to it
➢ If D shoots at P, but manages only to make a bullet hole in sleeve of P’s shirt, D has caused touching of P sufficient to generate battery claim
➢ Fisher v. Carrousel Motor Hotel, inc. (Tex. 1967)
✓ Facts: African-American plaintiff was standing in buffet line at defendant’s motel while holding an empty plate and one of defendant’s employees snatched plate away from him, telling him restaurant did not serve African-Americans
✓ Holding: court upheld battery damages on ground employee’s snatching of plate amounted to offensive touching – illustrates doctrine of “extended personality”
Some persons killed by explosions die not by physical contact, but by virtue of intense shock wave of energy or massive increases in air pressure; such persons are treated for purposes of battery law as having been touched
➢ If M fills Q’s house with odorless, colorless and deadly carbon monoxide gas, Q suffers harmful contact by inhaling poisonous gas
➢ Leichtman v. WLW Jacor Communications, Inc. (Ohio. App. 1994)
✓ Facts: Plaintiff, prominent anti-smoking advocate, was invited by defendant, radio personality, to radio station for interview, who then lit cigar and repeatedly blew cigar smoke in plaintiff’s face with purpose of causing plaintiff discomfort and embarrassment
✓ Holding: appellate court reversed trial court’s dismissal of plaintiff’s battery claim, reasoning plaintiff had adequately alleged offensive touching
Harmful vs. Offensive Contact
➢ “Harmful” contact involves contact causing bodily harms such as bruising or broken bones
➢ “Offensive” contact involves an “objective” rather than “subjective” test
✓ Issue is not whether person touched actually takes offense at the contact
✓ Contact must violate prevailing social standards of acceptable touching
✓ Alternate definitions include “offends reasonable sense of personal dignity” and “what would be offensive to an ordinary person not unduly sensitive as to his dignity”
▪ Intent Element
Proof of Intent
➢ Intent element requires judges and juries to determine mental state with which alleged tortfeasor acted
➢ Battery plaintiff must sometimes rely on circumstantial evidence to establish requisite intent via inference
➢ Intent to act is not enough at one end of spectrum, but ( is not required to prove ( intended to cause particular type of contact on other end of spectrum
Intent and Offensiveness
➢ Certain contacts that might otherwise be deemed inoffensive as matter of law can be rendered offensive if defendant knows plaintiff is unusually averse to being touched in particular way
➢ Cohen v. Smith (Ill.Ct.App.1995): when patient’s religion enjoins her to avoid having skin touched directly by males, and when hospital has notice of and agrees to abide by this restriction, touching of skin by male nurse during surgery can constitute offensive contact battery
Knowledge and Intent
➢ Intent of bringing about harmful or offensive contact can be established with knowledge on part of actor that such contact is substantially certain to be produced (§ 13 of First Restatement)
➢ Standard of knowledge is much more exacting than standard of foreseeability encountered in negligence law; issue is not whether actor knows his actions pose a risk of harmful or offensive conduct, but rather he knows that his actions will cause such contact
➢ German Mut. Ins. Co. v. Yeager (Minn.Ct.App.1996)
✓ Facts: Yeager, a teenager, demonstrated homemade bomb to friends by tossing it over his shoulder, away from where they were sitting; despite this precaution, shrapnel from bomb severely injured one of them
✓ Holding: Court rejected insurer’s argument that act was “intentional” and thus excluded from coverage by terms of insurance policy; Yeager was clearly aware of risks of harm associated with conduct, but not substantially certain someone would be injured by it; thus conduct was careless or reckless, rather than intentional wrong
➢ Proof that defendant knew his act would cause a harmful or offensive touching is sufficient but not necessary to satisfy intent element
➢ If employer’s knowledge that its ongoing business will eventually cause injury to some employee suffices to establish intent, a wide range of workplace injuries would seem to fall within intentional wrongs exception and hence outside of worker’s compensation schemes
✓ Turner v. PCR, Inc. (Fla.2000): if jury finds employer should have known some workers would almost certainly be injured by workplace activities and conditions, those workers who do suffer injury are not limited to workers’ compensation benefits and may instead sue in tort for battery
✓ Courts have split over whether “statistical” knowledge is sufficient to establish intent
Battery vs. Negligence
▪ Number of important legal consequences flow from conduct being deemed an intentional tort such as battery rather than negligence
Most jurisdictions have 2 or 3-year statute of limitations for negligence claims, but a 1-year statute of limitations for intentional tort claims
Punitive damages – which exceed amount necessary to compensate plaintiff for past and future losses caused by tort – tend to be more readily available if plaintiff can prove intentional tort
Courts are more prone to regard intentional torts committed by employees as outside the scope of employment, blocking plaintiffs’ ability to hold employers vicariously liable under respondent superior
Liability insurance policies also tend to be written so as to exclude coverage of liabilities arising out of intentional wrongs
Affects whether person suing government for injuries will be able to recover from the government or blocked under doctrine of “sovereign immunity”
Cecarelli v. Maher (1943)
▪ Facts
( attended public dance at Sea Cliff, New Haven; at conclusion of dance three young ladies requested him to drive them to their homes
Having been spurned by three young women, (s and third unknown assailant set upon ( at secluded and lonely spot adjacent to dance hall, administering a severe and painful beating with their fists and dangerous instruments
▪ Notes
Illustration of “harmful touching” battery
Paul v. Holbrook (1997)
▪ Facts
( and ( are former employees of PMP; ( testified that ( was her co-worker and not supervisor and on various occasions worked alone together
( alleges ( harassed her by asking she wear revealing clothing and suggesting they engage in sexual relations; on two occasions ( came up behind her while she was working and tried to massage her shoulders – on both occasions plaintiff immediately pulled away and told ( to leave, which he did
( complained to management and she and ( never again worked same shifts and improper behavior ceased
▪ Holding
The trial court properly granted summary judgment against Paul in all respects except with regard to battery claim against Holbrook. On that claim, we reverse.
▪ Reasoning
Proof of technical invasion of integrity of plaintiff’s person by even an entirely harmless, but offensive contact entitles plaintiff to vindication; establishment of tort cause of action entitles plaintiff to compensation for resulting mental disturbance, such as fright, revulsion or humiliation
Once contact has been established, character becomes focus; time and place an circumstances under which act is done will necessarily affect its unpermitted character, and so will relations between the parties
▪ Notes
Illustration of “offensive touching” battery
Sexual harassment statutes established in last 40 years often require “quid pro quo” or establishment of “hostile work environment”
Wagner v. State (2005)
▪ Facts
( was standing in a customer service line at a K-Mart store in American Fork, Utah, when she was suddenly and inexplicably attacked from behind by Sam Giese, a mentally disabled patient of USDC
USDC employees had accompanied Mr. Giese to K-Mart as part of his treatment program and had remained in K-Mart to supervise him; while this particular episode of violence was sudden, it was not unpredictable as Giese had a history of violent conduct and presented a potential danger to public if not properly supervised
▪ Holding
It is clear Mr. Giese’s attack constituted a battery upon Mrs. Wagner… So long as he intended to make that contact, and so long as that contact was one to which Mrs. Wagner had not given her consent, either expressly or by implication, he committed a battery. Because battery is a tort for which the State has retained immunity, we affirm the court of appeals’ decision to dismiss the case for failure to state a claim
▪ Reasoning
Contact must have been harmful or offensive at law – actor need not intend that his contact be harmful or offensive in order to commit a battery
Linchpin of liability is not a guilty mind, but rather an intent to make a contact the law forbids
Mental incompetence may insulate him from criminal liability because mental handicap negates mens rea requirement, but same level of intent is not required for civil liability
▪ Notes
Illustration of intent element of battery
Intent to Cause Harm Actually Suffered
➢ Intent element of battery does not require plaintiff to establish that defendant intended particular injury (or even particular type of injury) suffered by victim (majority rule)
➢ Minority rule is presented in Spivey v. Battaglia (Fla.1972) and requires intent to cause particular injury
General rule for claims of battery brought against very young children requires fact-finder (usually the jury) to determine whether particular minor was capable of forming requisite intent and acted with such intent
Exceptions for “everyday contact” for which law assumes assent not constituting battery
➢ Tap on shoulder
➢ Friendly grasp of arm
➢ Casual jostling to make passage in crowded public areas
Battery: Unintended Consequences and Knowledge
Vosburg v. Putney (1891)
▪ Facts
( was 14 years old and ( 12 years old; injury caused by kick inflicted by ( upon the leg of the ( below the knee
Injury occurred in school room during school hours and both parties were pupils in the school; ( had received another injury in January 1889 which produced a diseased condition of the bone
▪ Holding
Wrongdoer is liable for all injuries resulting directly from wrongful act, whether they could or could not have been foreseen by him; “defendant takes his plaintiff as he finds him”
▪ Reasoning
If intended act is unlawful, intention to commit it must necessarily be unlawful; as applied to this case if the kicking of plaintiff by defendant was an unlawful act, intention of defendant to kick him was also unlawful
Injury was inflicted in school after it had been called to order by teacher and after regular exercises of school had commenced; under these circumstances, no implied license to do act complained of existed
▪ Notes
Illustration of unintended consequences
Illustration of “eggshell skull” rule
Vosburg distinguished from Wagner as it rules intended touch must be “unlawful,” while Wagner holds intended touch must merely be “offensive or harmful”; “unlawful” equated with socially unacceptable or inappropriate in this context – Goldberg suggests Vosburg seems more intellectually honest of the two decisions
Cole v. Hibberd (1994)
▪ Facts
Hibberds had been drinking and while ( was standing and leaning over, ( kicked ( in lower lumbar area, causing injuries and damages; ( stated she did not think ( meant to hurt her
( filed complaint more than one year, but less than two years after date of incident
▪ Holding
Construing facts most strongly in favor of Cole, court concludes essential character of complaint is grounded in intentional tort of assault and battery… ( intended to kick plaintiff… (’s conduct would be considered offensive … irrelevant whether or not ( intended to cause injury
▪ Reasoning
State statutes establish one-year statute of limitations for claims involving assault and battery and two-year statute of limitations for bodily injury resulting from negligence
Where essential character of alleged tort is intentional, offensive touching, statute of limitations for assault and battery governs even if touching is pleaded as an act of negligence
Intentional nature of contact with plaintiff controls definition, not intent to cause actual harm or injury
▪ Notes
Statutes of Limitations and Either/Or Problem
➢ Ohio law is representative in that most states set shorter time limits on commencement of actions for intentional torts than for other torts, such as negligence
➢ Forces courts to deal with either/or issue in order to give effect to legislative decisions to set different statutes of limitations for different tort courses of action
B. Assault
▪ Elements of Assault (prima facie case)
A acts
Intending to cause in P the apprehension of an imminent harmful or offensive contact with P; and
A’s act causes P reasonably to apprehend such a contact
▪ A person can be the victim of an assault that is not a battery; likewise battery need not include an assault (batteries committed on unconscious plaintiffs, surreptitious batteries such as poisonings)
▪ Plaintiff can make out prima facie case of assault without having to establish that she was fearful that she was about to suffer a harmful or offensive contact; it is enough that she was aware that such contact might occur
Beach v. Hancock (1853)
▪ Facts
( and ( were engaged in an angry altercation; defendant stepped into office and brought out a gun
( aimed gun at ( in excited and threatening manner and snapped gun twice at (; ( did not know whether gun was loaded or not and in fact, gun was not loaded
▪ Holding
It is surely not unreasonable for a person to entertain a fear of personal injury, when a pistol is pointed at him in a threatening manner, when, for aught he knows it may be loaded and may occasion his immediate death
▪ Notes
Illustrates “apprehension of contact” element
Brooker v. Silverthorne (1919)
▪ Facts
( was night operator at telephone exchange at Barnwell; ( called exchange over telephone and asked for certain connection, which she promptly tried to get for him, but upon failing to do so, he cursed and threatened her in an outrageous manner
Among other things, ( said “If I were there, I would break your… neck”; language and threat of ( put ( in great fear that ( would come to exchange and further insult her
( was so shocked and unnerved that she was made sick and unfit for duty and had to take medicine to sleep; for weeks afterwards when (’s number would call, she would become so nervous that she could not answer the call
(’s nervous system was so shocked and wrecked that she suffered and continues to suffer in health, mind and body
▪ Holding
It is not alleged plaintiff was not a person of ordinary reason and firmness and that defendant knew it… words used did not amount to a threat. The language attributed to defendant… is not civilly actionable…
▪ Reasoning
Distinguishing between this case (threat) and that of assault (threats ≠ assault)
➢ Threat only promises future injury and usually gives ample opportunity to provide against it; assault must be resisted on the instant
➢ Principal reason is found in the reluctance of law to give a cause of action for mere words; words never constitute assault, is a time-honored maxim
▪ Reasoning
For a threat to constitute assault, it must be conveyed in a way that creates reasonable belief that threatened contact is imminent
Vetter v. Morgan (1995)
▪ Facts
( was alone early morning when she stopped van at intersection stoplight; (s drove up beside ( and ( Morgan began screaming vile and threatening obscenities at (
Gaither revved engine of car and moved car back and forth while Morgan was threatening plaintiff; Morgan threatened to remove her from her vehicle and spat on her van door when traffic light turned green
When light turned green, both vehicles drove forward and ( alleges (s car veered suddenly into her lane; ( reacted by steering van sharply to the right, striking curb and causing her to suffer injuries
(s denied their car veered into (’s lane, stating they drove straight away and did not see (’s collision with curb
▪ Holding
Trial court erred in concluding there was no evidence plaintiff was placed in apprehension of bodily harm. Whether Morgan’s actions constituted an assault was a question of fact for the jury.
▪ Reasoning
There was evidence of a threat
Record is sufficient to support inference that Morgan’s threat and the acts and circumstances surrounding it could reasonably put someone in plaintiff’s position in apprehension of imminent or immediate bodily harm
Record also supports inference that Morgan had apparent ability to harm plaintiff
Plaintiff’s ability to prevent threatened harm by flight or self-defense does not preclude an assault
3. Battery and Assault: Transferred Intent
Doctrine of Transferred Intent
▪ Same Victim, Different Tort
Intent element can be satisfied even if actor intended conduct that amounts to one tort, but ended up committing another
Nelson v. Carroll
➢ Holding: Maryland Supreme Court held defendant Carroll liable for battery even though he shot plaintiff Nelson accidentally, while in process of raising his hand, supposedly only to “scare” Nelson
➢ Reasoning: “one who intends to frighten another by assaulting him or her, and touches this person in a harmful or offensive manner and claims the touching was inadvertent or accidental, is liable for battery, notwithstanding contention that actual touching was never intended
Across Victims
➢ Victims of certain acts that were intended to injure others may sue even if they were not among persons whom defendant intended to injure
➢ Talmage v. Smith (Mich.1894)
✓ Holding: Trial judge instructed jury that if it found Smith’s action (seeking to chase away boys playing on roof of a shed on his property by throwing a stick at one of them) involved excessive rather than reasonable force, it should hold Smith liable regardless of whether he intended to hit Talmage or the other boy
Across Torts and Victims
➢ Tortfeasor held liable to actual victim (AV) for tort T1, even though he acted for purpose of injuring potential victim (PV) in manner that would have constituted tort T2 if successful
➢ If bankruptcy judge had credited defendant’s testimony that he shot at Tipton only to scare him, White v. Davis would be such a case; White intended to engage in assault of Tipton, but committed battery against Davis
From Things to Persons
➢ Intent transferred from “property torts” (trespass to land and conversion) to battery and assault
➢ Corn v. Sheppard (Minn.1930)
✓ Holding: where person intentionally discharges a firearm for a wrongful purpose (shooting at a domesticated dog) and another is hit, he is liable for injuries inflicted, although he did not intend to hit the other nor even know that any person was within range
In re White (1982)
▪ Facts
( was washing cars in front of mother’s residence in Richmond, Virginia; (, a neighbor, was having a conversation with Tipton
( and Tipton continued an argument which had begun one week earlier; ( had obtained gun in anticipation of seeing Tipton
( was carrying pistol on his motorcycle and pulled it out during course of argument; Tipton mounted motorcycle and sped away
( fired at Tipton as he passed within 25 feet of (; ( missed Tipton and bullet hit ( in stomach
( testified that he accidentally tripped over rock and gun went off
▪ Holding
Evidence clearly shows shooting was wrongful act intentionally done and plaintiff’s injuries resulted from that act. Defendant deliberately, intentionally and maliciously fired gun and injured plaintiff and debt resulting from that act is nondischargeable in bankruptcy
▪ Reasoning
Discharge of Debt in Bankruptcy
➢ Debt incurred from action based upon willful and malicious injury by debtor to another person may be nondischargeable in bankruptcy; Bankruptcy Act does not necessarily restrict penalty of nondischargeablity to cases in which debtor injured person he intended to injure
➢ “Willful” means “deliberate or intentional,” a deliberate and intentional act which necessarily leads to injury; wrongful act done intentionally, which necessarily produces harm and is without just cause or excuse may constitute a willful and malicious injury
Defendant’s Conduct
➢ Defendant committed wrongful act when he shot at Tipton; act was intentional and produced injury, although not to person defendant intended to injure
➢ Injury is not required to be directed against victim, but includes any entity other than intended victim
▪ Notes
Illustration of “transferred intent”
Restatement Second incorporates doctrine of transferred intent into black letter law in § 13
4. Standard Defenses to Battery and Assault
Affirmative Defenses to Assault and Battery
▪ Defenses typically assert alleged tortfeasor was privileged to act as they did; privileges recognized by tort law tend to consist of justifications and not excuses
Justification: to claim that one was entitled to engage in conduct, notwithstanding apparent wrongfulness
▪ Burden
Burden for pleading and proving affirmative defenses usually rests on alleged tortfeasor
Some states’ laws treat affirmative defenses as elements of prima facie case; require plaintiffs to prove absence of consent rather than leaving it to defendant
▪ Black-letter rule is that comparative fault doctrine has no place for intentional torts #exam
A. Consent
▪ Consent: idea that plaintiff cannot prevail on her tort claim because they agreed, under appropriate conditions, to endure bodily contact or apprehension of contact, or confinement that would otherwise be tortious
▪ Types of consent
Express consent is expressly stated, either in writing or by oral statement
Implied consent to offensive or harmful touching includes: (1) voluntary participation in contact sports; (2) persons entering crowded trains or buses; (3) parties with a history of dealings involving playful punching or shoving
▪ Objective Indicia of Consent: bars imposition of liability on party if, on basis of plaintiff’s conduct, party actually and reasonably believed plaintiff consented to contact
O’Brien v. Cunard (Mass. 1891)
➢ Facts: Plaintiff, a young immigrant, was vaccinated onboard defendant’s ship en route to New York; after suffering an adverse reaction she sued for battery, alleging she never consented to injection
➢ Holding: court concluded ship’s doctor reasonably inferred plaintiff consented by virtue of standing in line of people receiving vaccination and holding her arm out as did others in the line
Reasonable but mistaken inference of consent that derives from source other than conduct of plaintiff will not suffice to establish consent defense
▪ Mullins v. Parkview Hops., Inc. (Ind.2007) demonstrated interaction of intent and consent
Facts: plaintiff was admitted to hospital for hysterectomy and told gynecologist she wanted privacy during procedure; plaintiff crossed out portion of written consent form consenting to presence of healthcare learners; plaintiff also received assurances from anesthesiologist that he would be handling her anesthesia personally, signing a consent form with a provision stating that “anesthesia care will be given by undersigned or privileged physician”; after plaintiff was anaesthetized, student entered operating room with hospital employee and was asked to intubate plaintiff; in performing procedure, student lacerated plaintiff’s esophagus
Holding: Indiana Supreme Court affirmed ruling of appellate court as to anesthesiologist and gynecologist, but reversed as to claim against student, upholding trial court’s dismissal of that claim; student had no reason to suspect that plaintiff had insisted on modifying standard consent form, because plaintiff could not show student “touched her with intent to cause harm” battery claim failed
▪ Fraud and Coercion
Fraud: tortfeasor cannot benefit from consent defense if he secures victim’s consent by misrepresentation or other forms of deceit
Coercion: tortfeasor cannot benefit from consent defense if he secures victim’s consent through coercion such as physical violence or threats of violence
Consent is not a defense if (1) victim lacks ability or judgment necessary to give meaningful consent and (2) reasonable person in the position of the tortfeasor would perceive this lack of capacity; lack of capacity may result from youth, mental incompetence or other condition or circumstance
Apparent consent will sometimes be deemed ineffective if defendant had reason to know consent was not freely given; example involves alleged tortfeasor occupying position of power or authority in relation to victim
▪ Scope of Consent: content in question must be of sort to which plaintiff consented
▪ Courts will in certain situations deem otherwise valid consents void against public policy; most courts deem consent ineffective if consented-to conduct amounts to crime
Koffman v. Garnett (2003)
▪ Facts
( was a 13-year-old student and began participating on school’s football team; it was (’s first season playing organized football
( was employed by school board as assistant coach for football team and was responsible for supervision, training and instruction of team’s defensive players
( ordered ( to hold football and “stand upright and motionless” so ( could explain proper tackling technique to defensive players; ( without warning thrust his arms around (’s body, lifted him “off his feet by two feet or more” and “slammed him to the ground”
During prior practices, no coach had used physical force to instruct players on rules or techniques
▪ Holding
Because reasonable persons could disagree on issue, jury issue is presented and trial court erred in holding that, as a matter of law, motion for judgment was inadequate to state a claim for gross negligence. Based on allegations in motion for judgment, reasonable persons could disagree on whether plaintiff gave such consent. Thus we find that the trial court erred in holding that motion for judgment was insufficient as a matter of law to establish a claim for battery.
▪ Reasoning
Apprehension of immediate battery cannot be supplied by inference because it is discredited by affirmative allegations plaintiff had no warning of imminent forceful tackle
Plaintiffs pled that plaintiff consented to physical contact with players “of like age and experience” and did not expect or consent to “participation in aggressive contact tackling by adult coaches”
▪ Notes
Illustration of “voluntary consent” to harmful contact
B. Self-Defense and Defense of Others
▪ Self-defense: privilege to use force against another to defend oneself; available to victim who actually and reasonably believes it is necessary to injure another to avoid imminent injuries to themselves such as harmful contact or confinement
▪ Typically applies when injury threatened consists of physical harm, inappropriate touching, or confinement; by contrast, does not apply if conduct in question threatens only to result in defamation of, or distress to victim
▪ Law does not privilege use of force to respond to nonthreatening provocations such as taunting or teasing
▪ Deadly Force
Injurer’s response must be reasonable not only in being grounded in a reasonable perception of imminent harm, but also in consisting of appropriate or proportional response to perceived threat; use of deadly force is only justified when injurer actually and reasonably perceives victim is threatening them with imminent death or serious bodily harm
Propriety of deadly force is sometimes bound up with notion of “safe retreat”; if one actually believes they can safely retreat from confrontation that would otherwise justify use of deadly force, one is not justified in using deadly force
Some states have adopted so-called “stand your ground” statutes that expand privilege to use deadly force
➢ 2005 Florida statute eliminated duty to retreat, even where defendant knows “safe retreat” is readily available
➢ Grants defendant nonrebuttable presumption that they acted on basis of reasonable apprehension of imminent death or serious bodily harm if victim (a) was unlawfully or forcibly entering, or had entered, dwelling, residence, or occupied vehicle; and (b) defendant knew or had reason to believe an unlawful and forcible entry was occurring or had occurred
Defense of others
➢ Privilege to injure attacker for purpose of defending others operates essentially under same rules as privilege of self-defense
➢ Necessity of sparing oneself from injury is held insufficient to justify injuring of an innocent third party – for example, grabbing third party as a “human shield”
Haeussler v. De Loretto (1952)
▪ Facts
( went to home of (, a neighbor to inquire about his dog which was missing and frequently went to defendant’s home; when defendant opened door, dog ran out from inside house
( started talking in loud tone of voice, told ( he did not want ( or his wife to feed or keep dog and kept waiving his hands; (’s face was flushed, as if he had been drinking
▪ Holding
One who is involved in an altercation with another has right to use such force as is necessary to protect himself form bodily injury and the question of the amount of force justifiable under the circumstances of a particular case is also one for the trier of fact
▪ Reasoning
Defendant used reasonable force in defense of himself and in removing plaintiff from premises; plaintiff failed to prove by a preponderance of evidence that defendant used or attempted to use willful and unlawful force upon person of plaintiff
▪ Notes
Illustration of self defense
C. Defense and Recapture of Property
▪ Recapture of Property
Privilege to use reasonable force to defend property applies only preventatively
If property has, in owner’s absence, momentarily been occupied by an intruder who has no right to be there, owner may use reasonable force to remove them
If owner were forcibly to evict person not entitled to occupy property, but who enjoys “peaceable,” nontransitory possession of it (e.g. tenant with expired lease), owner runs risk of criminal penalty and tort liability, even if force used is reasonable
Absent an imminent threat of bodily harm or death, owner may not respond to trespass in manner that risks imminent and serious bodily harm to trespasser
▪ Recapture of Chattels
Privilege to recapture personal possessions (chattels) operates essentially under same rules as recapture of property
Privilege does not protect owner who mistakenly seizes property that is not actually theirs
Katko v. Briney (1971)
▪ Facts
( inherited her parents’ farm; no one occupied house thereafter
Afterseries of trespassing and housebreaking events, (s set up a “shotgun trap” in north bedroom of farmhouse; Mr. Briney first pointed gun so that intruder would be hit in stomach, but lowered it to hit legs at Mrs. Briney’s suggestion – no warning of trap’s presence was posted
( had observed farmhouse for several years while hunting in area; he considered it to be abandoned and knew it had long been uninhabited
( and accomplice entered house to find and steal old bottles they considered antiques; ( opened north bedroom door and shotgun went off, striking him in right leg above ankle and blowing away much of his leg, including part of the tibia
▪ Holding
If the trespass threatens harm to property only – even a theft of property – the possessor would not be privileged to use deadly force, he may not arrange his premises so that such force will be inflicted by mechanical means.
▪ Reasoning
Property owners are not permitted to use excessive force, including force calculated to cause death or great bodily harm, to protect their property except to prevent the commission of felonies of violence and where human life is in danger
Value of human life and limb, so outweighs interest of a possessor of land in excluding from it those whom he is not willing to admit thereto
▪ Notes
Illustration of defense of property
Judge Larson’s dissent and doctrine of “unclean hands”; court will decline to exercise power to grant relief to plaintiff on grounds that those seeking relief must themselves have “clean hands”
4. False Imprisonment
▪ Primary tort doctrine by which relief is provided to those subjected to indignity of being confined by another
▪ Elements of false imprisonment (prima facie case) – Second Restatement § 35
A acts;
Intending to confine P;
A’s act causes P to be confined; and
P is aware of their confinement
▪ Legal remedies sought
False imprisonment is closely linked with official misconduct because confinements often come in form of detentions at behest of government officials or via government processes such as criminal prosecutions
Writ of habeas corpus allows prisoner to ask judge to order relevant officials to appear with prisoner before court to justify detention; absent justification, judge can order release
▪ Civil Rights laws and false imprisonment
Fourth and Fifth Amendments to U.S. Constitution respectively grant individuals right not to be subjected to unreasonable seizure by government officials and right to Due Process of Law
▪ What is Confinement?
Confinement occurs when tortfeasor causes victim to be within a bounded physical space
Certain boundaries may be so broad and permissive of free movement as to not count as confinement as a matter of law (e.g. barring from leaving country)
Conduct that bars a person from traveling along a particular route or to a particular destination will not, absent special circumstances, count as confinement
Confinement can occur in a non-stationary space
If an exit is available to victim, but can only be used by victim in manner posing risk of physical harm to themselves and others, victim is deemed confined; if victim reasonably perceives tortfeasor will seek to prevent them from leaving, they are confined
▪ Awareness of Confinement
§ 35 of Second Restatement and several state high court decisions require plaintiff to prove that they were aware of confinement as it happened; authorities treat false imprisonment in one respect like assault, requiring apprehension of condition
Other majorities, such as California, have questioned requirement of awareness or apprehension (minority rule)
▪ Willful vs. Accidental Confinement
Victim must prove by preponderance of the evidence that tortfeasor acted for the purpose of causing her to be confined, or with knowledge that victim would be confined
Wisconsin Supreme Court has permitted action for negligent confinement resulting in emotional distress unaccompanied by physical injury (minority rule)
▪ Malicious Prosecution and Abuse of Process
Confinement can be achieved indirectly by arranging for others to confine the victim
Malicious prosecution: permits claim by victim who is subjected to unfounded criminal prosecution against person who instigated prosecution
➢ To recover victim must establish
✓ Instigator acted (a) without probable cause; and (b) with malice or ill-will toward victim
✓ But for instigator’s activities, prosecution would not have gone forward
✓ Prosecution terminated in manner that establishes or supports conclusion victim did not engage in alleged misconduct
➢ Prosecutors generally granted immunity from any tort liability for prosecutions that turn out to be unfounded
➢ Comparable causes of action, malicious use of process or wrongful litigation, exist for malicious instigation of civil litigation
Abuse of process: subset of malicious prosecutions and wrongful litigation in which one person invokes legal system for particular purpose of extorting, threatening, or harassing victim, rather than in good-faith effort to vindicate some interest or right
A. Elements
Fojtik v. Charter Med. Corp. (1999)
▪ Facts
(’s admission to Charter was preceded by intervention by Charter employees and a group of (’s family and friends who confronted him on his need to go through inpatient treatment for alcohol abuse; (’s medical records indicate he admitted himself because those conducting the intervention told him if he did not voluntarily admit himself they would have him committed and brought in wearing handcuffs
Later ( was granted passes for a few hours at a time; he always returned voluntarily and on time
( produced summary judgment evidence that ( was free to leave at any time; (’s admission documents indicate he consented to inpatient treatment
▪ Holding
Where it is alleged that a detention is effected by threat, the plaintiff must demonstrate that the threat was such as would inspire in the threatened person a just fear of injury to his person, reputation or property.
▪ Reasoning
In determining whether such threats are sufficient to overcome plaintiff’s free will, factors such as relative size, age, experience, sex and physical demeanor of participants may be considered
Review of false imprisonment case law
➢ Black v. Kroger (Tex.App.1975)
✓ Employee led to small, windowless room lit by bare light bulbs
✓ Court noted woman’s lack of business experience and harsh and intimidating nature of questioning; held that under these facts jury could have reasonably concluded threats to woman intimidated her to point where she was not free to leave and was unreasonably detained (false imprisonment)
➢ Skillern & Sons, Inc. v. Stewart (Tex.Civ.App.1964)
✓ Employee led by arm to room where two men she never met beat on desk while telling her “we have the goods on you”; when she tried to stand up she was physically pushed back into a chair by her accusers
✓ Held to support recovery for false imprisonment
➢ Safeway Stores, Inc. v. Amburn (Tex.App.1965)
✓ Employee’s path to door was not blocked; only physical contact between employee and accusers was a handshake
✓ Evidence held insufficient to support recovery for false imprisonment
➢ Randall’s Food Markets, Inc. v. Johnson (Tex.1995)
✓ Employee waited in office, but left twice and returned each time because no one was guarding her
✓ Evidence held insufficient to support recovery for false imprisonment
B. Defense of Investigative Detention and Arrest
▪ Arrest: particular kind of attention in which person is held for purpose of securing presence at judicial proceeding or to otherwise aid in administration of law
▪ Privilege against tort liability arises not out of right to defend oneself, others, or property, but instead to enable officials and private citizens to advance cause of law enforcement and operation of the legal system
▪ When governmental official arrests a person pursuant to a warrant that is actually valid, or in good faith relies on a warrant that appears valid on its face, they are immune from liability for false imprisonment; this immunity only applies to actions undertaken within scope of warrant
▪ Warrantless Arrests
Citizen’s arrest: situation where governmental officials and private citizens enjoy limited privilege to arrest even in absence of warrant
Common scenarios affording privilege
➢ Serious criminal offense (usually a felony) has actually been committed and if actor who arrests the other acts “with probable cause”; privilege is lost if actor did not act out of good-faith desire to aid in administration of law
➢ Detainee, in presence of defendant, is in process of attempting serious criminal offense, or commits a breach of the peace (e.g., by fighting in public)
▪ Shopkeeper’s Privilege
Supreme Court held in Terry v. Ohio (1968) that Fourth Amendment permits police officers to briefly detain persons for purpose of investigating actual or possible criminal activity
Such investigative stops do not require probable cause, but instead lower threshold of “reasonable suspicion”
Merchants typically enjoyed much more limited privilege to detain customers to investigate possible thefts; common law and legislation has granted merchants privilege of detaining customers believed to have committed or attempted theft of property, even if it turns out suspect is innocent – statutes require store personnel have probable cause or reasonable grounds
▪ Excessive Force
Privilege to arrest, even if otherwise properly invoked, is lost if arrest is undertaken with excessive force
In contemporary cases, complaint as to use of excessive force is typically presented as a federal civil rights claim under 42 U.S.C. § 1983, claiming that force violated right against being subjected to unreasonable seizure guaranteed by Fourth Amendment
Grant v. Stop-N-Go Market of Texas, Inc. (1999)
▪ Facts
( accuses ( of stealing a pack of cigarettes, after prolonged / tense transaction. ( grabbed (’s arm and called police
Police arrive there 15-20 min. later and take ( in, although ( never asked nor directed them to do so
Surveillance video showed ( hadn’t stolen the cigs, police released him.
▪ Holding
When we assume these facts are true, we conclude appellant raised fact issues concerning whether he was willfully detained without his consent. Defendant did not negate any element of appellant’s false imprisonment claim as a matter of law and appellant raised genuine issues of material fact on each element
▪ Reasoning
Defendant argues threats of future actions are not sufficient to constitute false imprisonment; Calhoun did more than threatened to call the police, he actually called the police
Components of shopkeeper’s privilege
➢ Reasonable belief person has stolen or is attempting to steal
➢ Detention for a reasonable time
➢ Detention in a reasonable manner
Test of liability under shopkeeper’s privilege is not based on store patron’s guilt or innocence, but instead on reasonableness of the store’s action under the circumstances
▪ Notes
Illustration of shopkeeper’s privilege
Chapter 10: Infliction of Emotional Distress
1. Intentional Infliction of Emotional Distress
A. Emergence of Intentional Infliction of Emotional Distress (IIED)
▪ IIED: also known as “outrage,” imposes liability on actor who, by means of outrageous conduct, intentionally or recklessly causes severe emotional distress to another
▪ Famous cases in development of IIED
Wilkinson v. Downton [Q.B. 1897]
➢ Facts: man appeared at plaintiff’s house and, as a practical joke, falsely informed her that her husband had been “smashed up” in an accident, suffered two broken legs, and sent for plaintiff to rescue him, all of which caused plaintiff severe and lasting distress
➢ Holding: without specifying cause of action on which plaintiff could rely, trial judge upheld jury’s verdict for plaintiff; because there was evidence victim suffered nausea and other physical side effects, defendant was held liable for causing plaintiff physical harm by having “willfully done an act calculated to cause such harm”
Nickerson v. Hodges (La. 1920)
➢ Facts: Plaintiff was privy to family legend asserting her relatives had buried a pot of gold on property belonging to John Smith; after visiting fortune teller who gave her a map showing pot’s location on Smith’s property, plaintiff, with help of others, spent months digging on the property; Smith’s daughter, Minnie, along with Baker and Hayes, formulated a plan to “assist” the explorers in their quest by burying an old copper kettle filled with rocks and wet dirt on the property with a note; when plaintiff found the pot she was later humiliated in a public ceremony
➢ Holding: Louisiana Supreme Court reversed and ordered payment to plaintiff’s heirs; court nowhere in its opinion purported to identify cause of action that provided redress for wrong
▪ Recognition of IIED tort
In 1936, Professor Calvert Magruder published influential article attempting to fill doctrinal void evidenced by decisions such as Wilkinson and Nickerson
IIED has been recognized by courts in part to deal with a special class of cases that closely resemble assault, yet do not meet definition of that tort because defendant intentionally induces in the plaintiff an apprehension of harmful contact that will take place in the indefinite future, rather than imminently
State Rubbish Collectors Assn. v. Siliznoff (Cal. 1952)
➢ Facts: Siliznoff, independent hauler, obtained contract to haul garbage form a brewery; brewery previously had used another hauler who belonged to association; two association officers prevailed on Siliznoff to join and to abide by its rules, which would have required him to compensate prior hauler for having taken over the account; Siliznoff balked and inquired what consequences would be if he did not, whereupon officials informed him he would be beaten up and his truck destroyed; officers extracted verbal promise from Siliznoff, but he never signed agreement; association officers did not carry out their threat, but did sue him for breach of promise to join and pay dues
➢ Holding: Siliznoff defended against contract claim by pleading duress and won jury verdict for compensatory and punitive damages; California Supreme Court upheld award for plaintiff
➢ Reasoning: agreed with defendants that their threats failed to constitute assault because they were conditional and because they referred to actions that would take place at some indefinite future time, nonetheless concluded Siliznoff had established valid tort claim
B. Elements of IIED
▪ Elements of IIED (prima facie case)
Conduct is outrageous;
Conduct is undertaken for purpose of causing victim emotional distress so severe it could be expected to adversely affect physical health
Conduct causes such distress
▪ Although often pleaded, IIED claims rarely succeed
▪ IIED as Substitute or Supplement to Existing Torts
Following § 47 of Second Restatement, some jurisdictions have held that when defendant’s conduct would be actionable as another tort (such as battery), statute of limitations for those other torts will control; reasoning is that IIED is intended to supplement, not supplant, existing torts
▪ Aggravated Torts
Courts sometimes permit plaintiffs to point to same conduct to prove that they have been victims of more “traditional” tort and IIED; court’s recognition of an IIED claim serves to indicate defendant has committed an “aggravated” version of these other torts and resembles a finding of malice or reckless indifference of the sort that justifies imposition of punitive damages
Burgess v. Taylor (Ky.Ct.App. 2001)
➢ Facts: plaintiff was deeply attached to her two horses but couldn’t adequately maintain them on her property; retained ownership but arranged for them to live on defendants’ farm after defendants professed to be fellow horse-lovers; shortly thereafter, defendants sold horses for slaughter and attempted to cover up their actions
➢ Holding: intermediate appellate court upheld plaintiff’s claim for IIED even though action probably should have been framed as claim for tort of conversion – unlawful destruction of personal property
▪ Extreme and Outrageous Conduct
Comment d to § 46 of Restatement provides explication of “extreme and outrageous conduct” requirement: “liability has been found only where conduct… go beyond all possible bounds of decency… regarded as atrocious, and utterly intolerable in a civilized community…”
Tort is not available to remedy mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities
Judges are strongly disinclined to deem conduct sufficiently abominable to meet standard
If consent is given, activity cannot be “extreme and outrageous”
▪ Proof of Emotional Distress
IIED plaintiff must also prove conduct has caused severe emotional distress
In contrast to certain claims for negligent infliction of emotional distress (NIED), severity is incorporated as a component of plaintiff’s prima facie case
▪ Reckless IIED
IIED defendant can be held liable for being reckless as to the risk of causing the victim severe emotional distress; recklessness may be defined for these purposes as a failure to heed a very obvious and very significant risk of serious injury
▪ § 46(2)
Transferred Intent: § 46(2) sets out a more specific and circumscribed version of the doctrine of transferred intent; tracks but also extends principles that permit certain family members to sue for loss of consortium or for wrongful death when another family member is injured or killed
“Directed at” requirement: suggests by implication that a plaintiff brining a standard IIED claim under § 46(1) must show defendant’s outrageous conduct was directed at them
➢ Leading California Supreme Court opinion endorses this reading, Christensen v. Superior Court (Cal.1992)
➢ Tennessee Supreme Court has rejected any “directed at” requirement, maintaining Restatement errs in dividing IIED claims into those brought by intended victims § 46(1) and those brought by certain bystanders § 46(2)
▪ Hustler Magazine v. Falwell (1988): adopts rule that, as matter of constitutional law, descriptions or depictions of public figures can never be deemed “outrageous”
▪ Prima Facie Tort
Some states have recognized separate cause of action designed to enable victims to pursue claims for intentional wrongs that continue to fall through doctrinal cracks; in states that recognize it, this miscellaneous action is referred to as the cause of action for prima facie tort
Under New York law, the formal elements of such a claim are: (1) intentional infliction of harm; (2) resulting in special damages; (3) without excuse or justification; (4) by an act or series of acts that would otherwise be lawful
Dickens v. Puryear (1981)
▪ Facts
( was 31 year-old man who shared sex, alcohol and marijuana with defendants’ daughter, 17 year-old student; on April 2, 1975, defendants lured plaintiff into rural North Carolina
Earl Puryear pointed pistol at plaintiff and four men wearing ski masks emerged armed with nightsticks and beat plaintiff to semi-consciousness
( was handcuffed to piece of farm machinery and beaten with nightsticks; Earl Puryear, brandishing a knife and cutting (’s hair, threatened him with castration
Earl and others voted on whether ( should be killed or castrated; Earl told ( to go home and leave state of North Carolina or he would be killed and then released (
▪ Holding
We hold that plaintiff’s claim is not altogether barred by the one-year statute of limitations because plaintiff’s factual showing indicates plaintiff may be able to prove a claim for intentional infliction of mental distress, a claim which is governed by the three-year statute of limitations
▪ Reasoning
Physical beatings and cutting of plaintiff’s hair constituted batteries; threats of castration and death constituted assaults; plaintiff’s recovery for injuries caused by these actions would be barred by the one-year statute of limitations
( threatened ( with death in the future unless ( left state; threat was not one of imminent, or immediate harm; it was a threat for future apparently intended to and which allegedly did inflict serious mental distress, therefore it is actionable
▪ Notes
Illustrates elements of IIED
Littlefield v. McGuffey (1992)
▪ Facts
( realized ( was in an interracial relationship and refused to rent apartment to her
( continued to harass ( and ( testified to numerous episodes of severe emotional distress
▪ Holding
In Illinois physical manifestation of emotional distress is not an element of the tort of intentional infliction of emotional distress
2. Negligent Infliction of Emotional Distress (NIED)
Recognition of NIED
▪ Black-letter negligence law holds plaintiff who suffers physical harm as a proximate result of another’s breach of a duty of reasonable care can receive compensation for pain and suffering accompanying the physical harm
Losses compensable only because they were consequent to (or parasitic on) the predicate injury of bodily harm
▪ NIED claim asserts defendant committed wrong of failing to be sufficiently vigilant of plaintiff’s emotional well-being; relationship between compensation for bodily harms and for emotional distress is inverted
▪ Only in second half of 20th-Century do courts regularly recognize “true” NIED claims
▪ Gender Bias
Scholars, including Professor Chamallas, have argued rule denying recovery for emotional distress owes its origins to gender biases of 19th-century judges; it is no coincidence law developed special and restrictive rules for these claims because such claims tended to be brought by female plaintiffs and sought relief for invasion of the sort of nonmaterial interest that male judges traditionally regarded as unmanly and unworthy of legal protection
Even as decisions such as Robb have whittled away at blanket no-duty rule, they have refused to go as far as to embrace a Heaven-like general duty to avoid causing emotional injury; Chamallas claims this asymmetry reveals continuing bias in the law
▪ Extending liability for physical harm
Commentators have argued a rule confining recovery to victims who could prove a physical harm flowing from their distress was superior to impact rule on at least two counts
➢ Arguably consistent with decisions such as Wyman because it does not deem interference with victim’s interest in emotional tranquility as itself an injury
➢ By recognizing claims brought by those who suffered significant adverse physical effects as a result of distress, seems likely to provide redress for persons who are among the most severely traumatized, where impact rule worked in favor of the arbitrary class of persons who happen to have been touched
Proximate cause doctrine, similar to injury doctrine, blocked liability for physical harms arising out of carelessly caused emotional traumas
➢ Courts began to expand liability in this area by liberalizing proximate cause doctrine, abandoning idea that causal connection between defendant’s breach and plaintiff’s injury was always too remote simply because injury was linked to breach through the plaintiff’s emotional response to it
Courts emphasized that distress must have been experienced as a result of being imminently endangered by defendant’s careless conduct
A. From No Injury to the Zone of Danger
Emergence of True NIED Claims
▪ Many courts, perhaps most, permit recovery so long as emotional trauma of being endangered generates in plaintiff observable nontransient physical symptoms, such as nervous behavior or sleeplessness
▪ Few courts have gone further and abandoned even the requirement of symptoms (e.g. Illinois)
▪ By progressively watering down physical harm requirement, modern courts have finally arrived at position rejected by Wyman
▪ Zone of danger: rule of qualified duty stating all persons are under obligation to take reasonable care not to conduct themselves in a manner that physically endangers another so as to distress that other by placing them in fear of imminent bodily harm
Wyman v. Leavitt (1880)
▪ Facts
(, a subcontractor, carelessly blasted rocks in area adjacent to land where (s lived, as a result throwing rocks on the property
At trial, ( alleged she was in fear for her own safety, as well as that of their child
▪ Holding
We have been unable to find any decided case, which olds that mental suffering alone, unattended by injury to the person, caused by simple actionable negligence, can sustain an action; and the fact that no such case exists, and that no elementary writer asserts such a doctrine, is a strong argument against it
▪ Reasoning
Physical beatings and cutting of plaintiff’s hair constituted batteries; threats of castration and death constituted assaults; plaintiff’s recovery for injuries caused by these actions would be barred by the one-year statute of limitations
▪ Notes
Illustration of old rule, “no damages for mental suffering alone, absent special relationship”
Note ( does not have claim for assault despite apprehension of injury because there is no intent by subcontractor
Court finds that Wyman fails to satisfy injury element of negligence cause of action
Robb v. Pennsylvania R.R. Co. (1965)
▪ Facts
( ‘svehicle stalled at a railroad grade crossing; a rut about a foot deep had been negligently permitted by defendant to form at crossing
While attempting to move vehicle, ( saw (’s train bearing down upon her; with seconds to spare, ( jumped from stalled vehicle and fled for her life; locomotive collided with vehicle, hurled it into the air and demolished it
( was standing within a few feet of the track when collision occurred; she was not touched, there was no bodily impact and suffered no contemporaneous physical injury
( was greatly frightened and emotionally disturbed by the accident as a result of which she sustained shock to her nervous system; resulted in physical injuries including cessation of lactation which interfered with plaintiff’s ability to care for her child
Nervous and general physical condition also obliged ( to abandon horse breeding business and an article which she had been engaged to write for substantial compensation
▪ Holding
We hold that where negligence proximately caused fright, in one within the immediate area of physical danger from that negligence, which in turn produced physical consequences such as would be elements of damage if a bodily injury had been suffered, the injured party is entitled to recover under an application of the prevailing principles of law as to negligence and proximate causation.
▪ Reasoning
Rule allowing recovery for injury due to fright induced by negligence without impact (majority rule)
Public policy or expediency grounds to support impact rule is untenable
➢ Duty of courts to afford a remedy and redress for every substantial wrong; neither volume of cases, danger of fraudulent claims, nor difficulty of proof will relieve courts of their obligation in this regard
➢ Danger of illusory and fictional claims is not a new problem; problems of adequacy of proof, for the avoidance of speculative and conjectural damages, are common to personal injury cases generally and are surmountable
▪ Notes
Illustration of expansion of what suffices to establish requisite predicate physical injury in allowing recovery (e.g., heart attack, miscarriage); rejection of impact rule for “zone of danger”
B. Undertakings to be Vigilant of Another’s Emotional Well-Being
▪ Examples of pockets of liability for carelessly caused emotional distress in 19th-century courts
Implicit undertaking to deliver important and emotionally freighted message in a prompt fashion
Duty to take reasonable care not to cause distress to family members when undertaking to dispose appropriately of corpse of decedent
Duty of common carriers to protect passengers from severe distress in transit
Tort actions by guests against inns and hotels
▪ Contracts and Emotional Distress Damages
Contractual relationship between defendant and plaintiff usually does not of itself prevent plaintiff from suing in tort, particularly if suit alleges defendant’s performance or failure of performance was careless and caused physical harm to plaintiff
With respect to certain contracts and types of injuries, particularly intangible economic injuries, courts are more willing to treat contractual relationship as strictly contractual
➢ Typically include business transactions, as well as sales of real property
When contract law provides exclusive source of plaintiff’s right to sue the defendant, plaintiff usually cannot recover emotional distress damages
Beul v. ASSE Int’l Inc. (2000)
▪ Facts
( is nonprofit corporation that operates international student exchange program; ( placed Kristin, 16-year-old German girl, with Bruce family of Wisconsin as selected by Breber, defendant’s Area Representative
Kristin was serially sexually assaulted by host-father (who commits suicide when found out)
it is undisputed that events culminating in Bruce’s suicide inflicted serious psychological harm on Kristin
▪ Holding
Affirmed district court verdict for ( in jury trial, assigning 41% comparative fault to plaintiff
▪ Reasoning
It is improbable that there was not a causal relationship between Breber’s negligence and harm that befell Kristin; if Breber had inquired with school how Kristin was doing (as seems natural) she would have learned of absences and had reason to follow-up with Kristin and Bruce family
Superseding cause of sexual misconduct does not excuse ( in this case
( was expected to exercise kind of care parents themselves would exercise and assumed a primary role in protection of girl, thus cannot rely on foreseeability of conduct
▪ Notes
Illustration of “undertaking to be vigilant to another’s emotional well-being”
Note that comparative fault in play because ( does not sue for intentional tort
C. Beyond the Zone: Bystander Claims
▪ Courts have generally been cautious about extending NIED theories outside of “zone of danger” and “undertaking” cases
▪ Most prominent exception to above tendency involves imposition of “bystander” liability – liability to certain persons who witness another being injured or killed by carelessness of defendant
▪ Dillon v. Legg
Decided in 1968, also the year the California Supreme Court abolished the status categories for premises liability claims in Rowland v. Christian; two decisions substantially expanded tort liability and brought to bear a longstanding academic skepticism about duty element in a manner that promised to revolutionize law of negligence
A majority of states now follow some version of Dillon
A number of states have rejected bystander NIED liability; perhaps most notably, the year after Dillon was decided, New York Court of Appeals rejected it, in part relying on very same policy factors regarded by California Supreme Court as favoring imposition of liability (minority rule)
Two states – Montana and Tennessee – have adopted this chain of reasoning likening emotional distress claims to negligence misfeasance causing physical harm and establishing general duty of reasonable care; these states have explicitly purported to collapse distinction between negligence causing physical harm and negligence causing emotional distress
Waube v. Warrington (1935)
▪ Facts
( was looking out window of her house watching her daughter cross the road in front of it when she witnessed defendant negligently run over and kill her; Susie was already frail at the time and died two weeks later in part because of her anguish
▪ Holding
While from the standpoint of good morals and good citizenship the wrong-doer may be said to violate a duty to those who suffer from the wrong, the law finds it necessary, for reasons heretofore considered, to attach practical and just limits to the legal consequences of the wrongful act.
▪ Reasoning
Right of mother to recover must be based, first, upon establishment of a duty on part of defendant to conduct themselves with respect to the child as not to subject the mother to an unreasonable risk of shock or fright, and, second upon the recognition of a legally protected right or interest on the part of the mother to be free from shock or fright occasioned by the peril of her child
In order to give rise to a right of action grounded on negligent conduct, the emotional distress or shock must be occasioned by fear of personal injury to the person sustaining the shock, and not fear of injury to his property or to the person of another
Liability imposed by broader doctrine is wholly out of proportion to culpability of negligent tortfeasor, would put an unreasonable burden upon users of the highway, open way to fraudulent claims and enter a field that has no sensible or just stopping point
▪ Notes
Illustration of earliest incarnation of “bystander claim”
Dillon v. Legg (1968)
▪ Facts
(’s negligent operation of vehicle caused it to collide with Erin, deceased daughter of (, as she lawfully crossed a street, resulting in proximate cause of her death
( alleged she suffered emotional disturbance and shock and injury to her nervous system, causing her great physical and mental pain and suffering
( also asserted defendant negligently inflicted emotional distress on (’s daughter, Cheryl, who was standing near Erin when Erin was struck
▪ Holding
To deny recover would be to chain this state to an outmoded rule of the 19th century which can claim no current credence. No good reason compels our captivity to an indefensible orthodoxy.
▪ Reasoning
It should be recognized that “duty” is not sacrosanct in itself, but only an expression of sum total of considerations to policy which lead law to say particular plaintiff is entitled to protection
Inability to fix definitions for recovery does not justify denial of recovery; define guidelines to determine whether defendant should reasonably owe plaintiff a duty of due care:
➢ Whether plaintiff was located near scene of accident as contrasted with one who was at distance away from it
➢ Whether shock resulted from a direct emotional impact upon plaintiff form sensory and contemporaneous observance of accident, as contrasted with learning of accident from others after its occurrence
➢ Whether plaintiff and victim were closely related, as contrasted with an absence of any relationship or presence of only a distant relationship
▪ Notes
Illustration of intermediate incarnation of “bystander claim”
Introduces Dillon factors to guide lower courts in determining when bystanders may recover for NIED; some version of Dillon is now majority rule in states
Thing v. La Chusa (1989)
▪ Facts
(’s minor son was injured when struck by (’s automobile; ( was nearby, but neither saw nor heard the accident
( became aware of injury when told by a daughter and rushing to scene to find her bloody and unconscious child, who she believed to be dead, lying in roadway
▪ Holding
( may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, said plaintiff: (1) is closely related to the injury victim; (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress.
▪ Reasoning
Courts balance impact of arbitrary lines which deny recovery to some victims whose injury is very real against that of imposing liability out of proportion to culpability for negligent acts; we also weigh in balance the importance to administration of justice of clear guidelines under which litigants and trial courts may resolve disputes
Class of potential plaintiffs should be limited to those who because of their relationship suffer greatest emotional distress; when right to recover is limited in this manner, liability bears a reasonable relationship to the culpability of the negligent defendant
▪ Notes
Illustration of latest incarnation of “bystander claim”
Marks refinement of court’s position post-Dillon and restriction of claims back towards Amaya
IV. Liability Without Fault
Chapter 11: Property Torts and Ultrahazardous Activities
1. Property Torts
A. Trespass to Land: Prima Facie Case
▪ Trespass: tangible invasion by an actor of property possessed by another, whether by actor themselves, or by other persons, animals, mechanized devices, or natural or artificial substances for which the actor is responsible
▪ Elements of trespass (prima facie case)
Physical entry/touching of land
Land lawfully possessed by another
Intentional act to touch
▪ Under common law of trespass, it is immaterial to the issue of liability whether the actor who causes such an invasion took reasonable care to prevent it
▪ Strict Liability
Trespass requires that one person act so as to cause a certain kind of interference with a property possessor’s rights of exclusive possession and control; implicit in this formulation is idea that defendant’s interfering act must have been intentionally undertaken
While act itself must have been intentional, there need not be any intention to do harm to plaintiff, or to invade property that actor knows to be owned or possessed by someone else; it is enough if (a) defendant intentionally “invades” a swath of land; and (b) plaintiff owns or possesses swath in question
➢ Example: if car driver passes out and car veers offroad and runs through fence onto property, this is NOT trespass (lacks intentional act element)
“Invasion” can include walking on land, driving across land, throwing things onto it, digging it up, flooding it, building on it, etc.
▪ Nature of Interference
Historically, any physical invasion, no matter how minimal, will suffice to establish a trespass
Some scholars have argued explanation is purely historical; English property law tended to leave property boundaries very poorly defined and courts welcomed commencement of even trivial trespass actions to give them occasion to undertake business of more clearly defining parties’ property lines
▪ Invasions on, below and above the surface
According to Second Restatement, trespass may be committed on, beneath or above the surface of the earth
Many contemporary cases are brought by plaintiff whose land has been contaminated by underground leakage of gas or toxic waste
Property owner can complain of an above-surface trespass caused by particularly low-flying aircraft or by rocks hurled across property even if they do not land on it
▪ Failure to Leave or Remove
Trespass can occur by means of inaction as it can by action
➢ One invited to enter one’s land has consent to be there and is not a trespasser; but failure to leave when consent has been withdrawn or duration has expired can provide basis of trespass claim
➢ Failure to remove an object from another’s land is a trespass, even if initial placement was not tortious
▪ Who may complain of trespass?
Property torts adhere to “proper plaintiff” requirement that figured prominently in Judge Cardozo’s articulation of the tort of negligence in Palsgraf
➢ Plaintiff cannot prevail on claim of trespass to land unless plaintiff themselves owns or otherwise is in lawful possession of land trespassed upon
➢ Courts have stretched idea of possessory interest to include members of property owners’ household
▪ Injury, Harm and Damages
There is no requirement that invasion in question damage or render less valuable the plaintiff’s property, although absence of such harm will naturally affect damages plaintiff will receive
Damages are most typical remedy obtained by property owners suffering trespasses; property owners may be able to obtain court order enjoining ongoing trespassory activity
Seizure, destruction or damaging of trespassory objects or structures can, depending on circumstances, be deemed reasonable if done for purpose of preventing invasion
Burns v. Philip Food, Inc. v. Cavalea Cont’l Freight, Inc. (1998)
▪ Facts
( constructed fence on what it thought was border between its property and (’s property, relying on faulty survey; one end of fence was located several feet inside plaintiff’s lot and other end was 20 feet into defendant’s so that plaintiff occupied about 2,000 square feet belonging to defendant
After new survey, ( learned some of its land was on other side of fence, but it did not notify plaintiff of this until later; ( then ripped out fence without (’s leave and placed large container right at property line
▪ Holding
( entitled to damages for trespass
▪ Reasoning
Trespass is strict liability tort and obligation to notify intruder is inconsistent with idea of strict liability
( did not consent to construction of fence on its land; ( did not seek anyone’s consent to build fence
( thought fence was on its land and no one knew otherwise until 1995; knowledge of fence’s existence is not equivalent to consent, not, at least, when landowner does no suspect that border has been crossed
▪ Notes
Illustration of prima facie case of trespass to land
Limited right of reasonable self-help is presumably what entitled Cavalea to rip out the fence that Burns Philip had unwittingly constructed on Cavalea’s property
B. Trespass and Necessity
▪ Necessity
Necessity will justify entry upon land and interferences with personal property that would otherwise have been trespasses
Doctrine of necessity applies with special force to preservation of human life; one assaulted and in peril of their life may run through close of another to escape assailant or may sacrifice personal property of another to save his life or the lives of his fellows
▪ Private Necessity and Incomplete Privilege
Private necessity supplies an incomplete privilege to commit trespass
➢ Privilege: refers to fact that defendant is held to have been entitled to override property owner’s right to exclude
➢ Incomplete: defendant is still liable for compensatory damages resulting from his exercise of the privilege
▪ Public Necessity
Public necessity: where a private citizen is entitled to use or destroy another’s property in order to avert greater harm to public without suffering any sanction
➢ Fire department officials can order burning of private citizen’s property to divert fire away from heavily populated area
➢ Clause of Fifth Amendment prohibiting government from “taking” private property without “just compensation” entails that in some, but by no means all of these instances, officials will be obligated to compensate owner for losses out of funds from public fisc
Vincent v. Lake Erie Transp. Co. (1910)
▪ Facts
Steamship Reynolds, owned by appellant, was moored to appellee’s dock in Duluth for purpose of discharging cargo; while unloading was taking place a storm developed from the northeast which grew in violence, practically suspending navigation
If lines holding ship had been cast off the Reynolds would have drifted away, but the lines were kept fast and replaced as soon as one parted or chafed; the wind and waves lifted and threw the ship against the dock, resulting in its damage
▪ Holding
Not a case where life or property was menaced by any object or thing belonging to the plaintiff, the destruction of which became necessary to prevent the threatened disaster. Nor is it a case where, because of the act of God, or unavoidable accident, the infliction of the injury was beyond the control of the defendant, but is one where the defendant prudently and advisedly availed itself of the plaintiffs’ property for the purpose of preserving its own more valuable property, and the plaintiffs are entitled to compensation for the injury done.
▪ Reasoning
Public necessity, in times of war and peace, may require taking of private property for public purposes, but under our system of jurisprudence compensation must be made
▪ Notes
Canonical tort decision illustrating trespass and necessity
Argument over outcome
➢ "Necessity privilege" invoked here provides "incomplete" defense to trespass
➢ Goldberg suggests doctrine of “incomplete necessity of private necessity” is unnecessary to reach same conclusion as was reached in this case
✓ Compare with Burns: (1) property touched, (2) intent to touch = trespass; reasonableness of shipowner in exercising necessity privilege is NOT relevant to liability, but is relevant to punitive damages
✓ Alternate reading is that outcome turns on principles of restitution or unjust enrichment; in contrast to tort, obligation to pay restitution can arise even if no wrong has been done that is in need of rectification
C. Conversion and Trespass to Chattel
▪ Two additional types of property torts, not addressed in course
D. Consent (and other Defenses)
Aspects of Consent
▪ Forms of Consent
Express
Implied
▪ Consent when granted, immunizes only those trespasses falling within scope of consent
▪ Consent to enter can be limited by reference to purposes for which entry has been authorized
▪ Capacity of consent to operate as defense will depend on communicative context in which consent is signaled
Reasonable mistake as to whether a particular patch of land is owned by another generally will not suffice to excuse a trespass (Burns)
Second Restatement adopts same position with respect to effect of mistake as to consent
Second Restatement adds qualification by immunizing a defendant from trespass liability for instances in which defendant’s reasonable but mistaken belief as to permission to enter is “induced by conduct of the possessor”; aligns law of property torts with battery law as latter immunizes from liability a defendant who touches another in mistaken but reasonable belief that other has in fact signaled consent to being touched
▪ Consent may be subject to whether it was given knowingly and voluntarily
In distinct context of medical procedures, consent will only be deemed valid in some jurisdictions if obtained after disclosure of all material information
Media Trespass
▪ In last 40 years, courts, led by the U.S. Supreme Court, have made it more difficult for claimants to sue for defamation (injury to reputation) or loss of privacy; animating idea is that victim’s interest in their reputation or privacy must give way to the constitutionally protected rights of speakers and audiences to participate in free exchange of information and ideas
▪ As defamation and privacy claims have become more difficult to win, some claimants who believe they have been injured by media attention have turned to trespass; free speech concerns are not as pressing because plaintiff does not complain about dissemination of information, but instead the tortious methods of newsgathering employed by the media
▪ Important federal courts opinions analyzing viability of such actions
Desnick v. American Broadcasting Co. (7th Cir.1995): rejecting trespass action brought by doctor who was subject to expose that included footage obtained by use of a hidden camera worn by producer pretending to be a patient
Food Lion, Inc. v. Capital Cities/ABC, Inc. (4th Cir.1999): upholding trespass claim against reporters who obtained access to supermarket’s back-room meatpacking operation by submitting false resumes, but granting only nominal damages for the harm caused by the trespass itself, as opposed to airing the information that was obtained in part through the trespass)
Other defenses
▪ Property torts are subject to a wide range of affirmative defenses beyond consent, usually described as privileges to enter and take property
Entry incidental to use of a public highway or navigable stream
Entry to reclaim goods
Entry to abate a private nuisance
Entry in order to effect an arrest or otherwise prevent crimes
▪ Roughly parallel set of defenses exists for trespass to chattels and conversion
▪ Analysis of privileges requires careful attention to scope of the privilege and conditions of its exercise, and to possibility that it has been abused
Copeland v. Hubbard Broadcasting, Inc. (1995)
▪ Facts
KSTP broadcast investigative report on practices of metro-area veterinarians and one of the veterinarians was Dr. Ulland, who treated the (’s cat; before an April 1993 visit, Dr. Ulland received permission to bring along a student interested in a career in veterinary medicine
( [Johnson] did not tell (s or Dr. Ulland that in addition to being a part-time student she was also an employee of defendant and was secretly videotaping Dr. Ulland’s practice methods; when investigative report was broadcast, it included two video portions filmed inside (’s house
▪ Holding
Whether a possessor of land has given consent for entry is, when disputed, a factual issue. The record indicates consent was given only to allow a veterinary student to accompany Dr. Ulland.
▪ Reasoning
Trespass is committed when a person enters the land of another without consent; consent may be implied from conduct of parties, but silence alone will not support inference of consent
Consent may be geographically or temporally restricted
▪ Notes
Illustration of consent as defense to trespass
E. Nuisance
▪ Nuisance: ongoing interference with another’s right to use and enjoy real property, typically sound, noise, light, smell
▪ Elements of nuisance (prima facie case)
Ongoing interference
Substantially and unreasonably interferes with use and enjoyment of real property
▪ Activities adjudged to cause sufficient interference so as to amount to nuisances include: noisy racetrack, low-flying air traffic, incessantly howling dog, emission of pollutants, operation of animal farm in nonrural setting, use of bright lights in residential neighborhood, and erection of structures that block another’s access to air or light
▪ Nuisance versus Trespass
Similarities
➢ Both involve interferences with interest in land
➢ Both require as a condition of actionability that plaintiff have possessory interest in relevant property
➢ Both frequently involve requests for injunctive relief in addition to, or apart from, claims for damages
➢ Neither requires proof of physical damage
➢ Neither requires proof defendant acted for the purpose of interfering with someone else’s property rights
➢ Neither requires defendant’s conduct fall below threshold of reasonableness
Differences
➢ Nuisance requires defendant’s conduct to have caused unreasonable interference with another’s use and enjoyment of land; trespass exists even for trivial physical invasions
➢ Liability for trespass is more strict than liability for nuisance
➢ Liability in trespass is also more one-sided in that there is little, if any, consideration given to value of trespassory activity in determining whether trespass has occurred ; in nuisance, defendant’s interest in pursuing putatively offending activity often enters into analysis of whether a nuisance exists
➢ Nuisance requires continuing interference; trespass will be not satisfied by one-off event
➢ Trespass requires invasive act be an intentional using of property in question; nuisance does not
▪ Private versus Public Nuisance
Private nuisance: civil wrong, based on disturbance of rights of land; remedy lies in hands of individual whose rights have been disturbed
Public nuisance: also known as “common nuisance,” consists of interference with rights of community at large; normal remedy is in hands of state
➢ Examples include obstruction of a highway, public gaming-house, indecent exposure
➢ Normally government officials have standing to bring cause of action, but common law sometimes permits individuals to bring such a claim, only if individual has suffered an injury as a result of the nuisance of a sort distinguishing them from general population; because of this special injury requirement, when a private plaintiff brings a public nuisance claim, it is almost always accompanied by a separate claim for private nuisance and public officials are often granted right to make themselves parties to an otherwise private lawsuit if it includes a claim for public nuisance
➢ A number of cities, including New Orleans and Chicago, attempted to invoke public nuisance cause of action against gun manufacturers alleging failure to take steps to protect against illegal gun sales creating public health hazard by significantly contributing to escalating gun violence
✓ City of Chicago v. Beretta U.S.A. Corp. (Ill.2004): Illinois Supreme Court rejected this theory of liability
✓ Congress has blocked via enactment of statute specifically immunizing gun manufacturers from liability arising out of criminal misuse of guns, Protection of Lawful Commerce in Arms Act (2005)
▪ Nuisance versus Negligence
Unreasonableness to which nuisance law refers does not necessarily characterize defendant’s conduct, rather it is nature of the interference with the possessor’s use and enjoyment of her property that must be “unreasonable” or more onerous than a landowner should have to put up with
▪ Zoning
Cities and municipalities today enact elaborate zoning ordinances that set out to distribute systematically different forms of land use (industrial, retail, residential, etc.) in order to provide landowners with notice of what they may do and what they may expect others in their vicinity to do
Trickett v. Ochs (Vt.2003): evidence that defendant’s use of property confirms with applicable zoning laws is relevant to, but not dispositive of, question of whether the use constitutes a nuisance
Sturges v. Bridgman (1879)
▪ Facts
( is occupier of a house on Wigmore Street for purpose of his business as a confectioner; in the rear of the house is a kitchen with two larger mortars, as there has been for over twenty years
(, a physician, occupies a house on Wimpole Street which until recently had a garden at the rear, the wall of which was a party-wall between (’s and (’s premises; ( recently built upon the site of the garden a consulting room, one of the side walls of which is the party-wall
The mortars, before and at the time of the action, caused a noise which seriously inconvenienced the ( in the use of his consulting-room; unless ( had acquired a right to impose the inconvenience, this noise would constitute an actionable nuisance
▪ Holding
The fact that ( has, until now, been at liberty to use the mortars cannot be regarded as evidence that the ( had acquiesced in their use so as to forfeit his right to complain about them now… injunction against the continued operation of the mortars is appropriate
▪ Reasoning
Whether anything is a nuisance or not is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances; where a locality is devoted to a particular trade or manufacture carried on by the traders or manufacturers in a particular and established manner not constituting a public nuisance
It would be unjust and, from a public point of view, inexpedient that the use and value of the adjoining land should, for all time and under all circumstances, be restricted and diminished by reason of the continuance of acts incapable of physical interruption, and which the law gives no power to prevent
▪ Notes
Modern courts follow Sturges in holding that a nuisance plaintiff may still prevail even if defendant’s activity was underway at the time that plaintiff acquired or improved their property and even if that activity only generates an interference with plaintiff’s rights because of that acquisition or improvement (“coming to the nuisance”); timing of plaintiff’s decision to acquire or improve property is a “factor of importance” bearing on question of whether there is an actionable nuisance
▪ Application
Coase Theory and Nuisance
➢ Strongly influenced Posner
➢ Applicable only in cases where there is no obvious wrongdoer
✓ Cannot answer in abstract by theory of “right” who has right to use of property
✓ Since we don’t know, justify based on benefit to society
✓ At end of day, parties can still negotiate around court’s assignment of rights from nuisance claim to assign rights to highest value user
✓ Previous step only applicable where there are no transaction costs or impediments to bargain (i.e. “theory world”); in real world, assignment by court does matter due to transaction costs
✓ End result is that judges, when designing rules or ruling on cases, should think with an eye towards facilitating bargaining through reduction of transaction costs
Coasean analysis of Sturges
➢ 2 neighbors using land in incompatible manner (“reciprocal causation”)
➢ Court arbitrarily assumes residential right supersedes business right in favoring doctor
➢ Coase theory holds doctor and confectioner equal and suggests we need policy and not moralistic reasons to determine which use of land should be favored
Penland v. Redwood Sanitary Sewer Serv. Dist. (1998)
▪ Facts
( operates sewage-related facilities, including a sewage treatment plant, in rural rural area and instituted composting
(s are landowners and homeowners who live in area near plant and composting operation; many lived in neighborhood before ( instituted the permanent composting operation
(s and other neighbors began to notice odor, noise and dust, which they associated with the composting operation and complained to ( that, because of odor and noise, they were unable to enjoy outdoor activities
In response to complaints, ( undertook several mitigation measures that plaintiffs apparently found to be ineffective
▪ Holding
Composting operation is a nuisance and hardship to the District from the issuance of an injunction does not “greatly outweigh” the benefit to plaintiffs
▪ Reasoning
Determining whether activity constitutes a nuisance requires assessment of five factors: (1) location of claimed nuisance; (2) character of neighborhood; (3) nature of thing complained of; (4) frequency of intrusion; (5) effect upon plaintiff’s enjoyment of life, health and property
Whether condition constitutes nuisance depends on effect on “an ordinarily reasonable person, of ordinary habits and sensibilities”
Court’s standard for issuance of injunctive relief once a nuisance is established: court may refuse an injunction in certain cases where the hardship caused to the defendant by the injunction would greatly outweigh the benefit resulting to the plaintiff
▪ Notes
Illustration that compliance with regulations is not a per se defense to nuisance
Boomer v. Atlantic Cement Co. (1970)
▪ Facts
( operates large cement plant near Albany
▪ Holding
Nuisance complained of by these plaintiffs may have other public or private consequences, but these particular parties are the only ones who have sought remedies and the judgment proposed will fully redress them. It seems reasonable to think that the risk of being required to pay permanent damages to injured property owners by cement plant owners would itself be a reasonable effective spur to research for improved techniques to minimize nuisance. The orders should be reversed, cases remitted to grant an injunction which shall be vacated upon payment by defendant of such amounts of permanent damage to the plaintiffs as shall be determined by the court.
▪ Reasoning
Ground for denial of injunction is large disparity in economic consequences of the nuisance and the injunction; theory cannot be sustained without overruling a doctrine which has been consistently reaffirmed in several leading cases in this court and never disavowed here, namely, “such a nuisance will be enjoined although marked disparity be shown in economic consequence between the effect of the injunction and the effect of the nuisance”
Second alternative is to grant injunction conditioned on payment of permanent damages to plaintiffs which would compensate them for total economic loss to their property present and future caused by defendant’s operations – court adopts this approach
Injunction to move plant would effectively put ( out of business due to higher costs and inability to pass costs along to consumers
▪ Notes
Jude Calabresi and Melamed use cases such as Boomer to illustrate their claim that grants of injunctive relief – what they term use of a “property rule” – are generally inadvisable when class of potentially affected parties is large and relative damage is small
2. Ultrahazardous Activities
Basic Principles
▪ Wild Animals
Strict liability for wild animals continues today
▪ Natural versus non-natural uses of land
Turner v. Big Lake Oil Co. (Tex.1937): held creation of reservoirs filled with salt water is a “natural” use of land, given that in certain parts of Texas one would naturally expect to find such reservoirs, since they are a necessary part of oil exploration
Subsequent English decision, Nichols v. Marsland [1876], qualified Rylands by allowing an “act of God” defense that exempted from liability defendants whose stored water escaped in part because of unprecedented rains
▪ Fire and Explosives
Older English common law imposed liability on those who deliberately lit fires in their homes or on their properties, but then failed to contain them, even if they used reasonable care to contain the fires
Injuries caused by blasting and explosives have long been treated as basis for liability without fault
Some courts impose similar liability for injuries imposed by industries that transport or process hazardous materials
▪ Restatement Formulations
Drafters of first Restatement synthesized a number of different pockets of strict liability, including Lord Cairns’ concept of non-natural activities, into a new category dubbed “ultrahazardous” activities; label was replaced in the second Restatement with the concept “abnormally dangerous”
Two categories of risks
➢ Reciprocal: persons exposing each other to roughly similar risks of injury; fault ought to be standard of liability
➢ Non-reciprocal: risks generated by unconventional activities, unilaterally imposed by one actor upon others; fairness requires rule of strict liability, lest unilateral risk-creator enjoy right to impose risks on others even though others enjoy no equivalent right
▪ Third Restatement
Draft offers sparer definition of what constitutes abnormally dangerous activity than does § 520 of Second Restatement
➢ Activity is abnormally dangerous if it (1) creates a foreseeable and highly significant risk of physical harm even when reasonable care is exercised by all actors; and (2) is not one of common usage
➢ Reporters notes suggest many if not most of instances in which an activity will qualify as abnormally dangerous will be ones involving uncommon and very risky uses of land, including especially use of explosives for construction and other purposes
▪ Two Types of Fault
Negligent conduct: activity that violates norms of behavior even granted that the actor who engages in the behavior has made provision for the payment of any damages this behavior causes
Conditional fault: also known as liability “without fault,” risky conduct we are prepared to treat as permissible if actor who undertakes it stands ready to provide reasonable compensation to those injured by such conduct
▪ Strict Liability vs. Negligence
Negligence send s signal about standard of care; strict liability sends signal about whether to undertake activity at all #policy
Proximate Cause, Defenses, and Apportionment
▪ Plaintiff suing for injuries allegedly flowing from use of explosives must demonstrate that the blasting was an actual and proximate cause of injuries
Foster v. Preston Mill Co. (Wash.1954)
➢ Facts: defendant’s blasting operation frightened mother mink that resided on mink farm two miles from the blast sight, inducing her to kill kittens, causing her owner substantial academic loss
➢ Holding: defendant was held not liable because of fortuity of the causal link between hazardous conduct and injury suffered
▪ Defenses
Defenses include statute of limitations, governmental immunities, and plaintiff-conduct-based defense of assumption of risk
Second Restatement holds defendant subject to ultrahazardous activity liability cannot invoke contributory negligence defense with regard to a plaintiff who carelessly but inadvertently exposes himself to the risk of defendant’s activity and is thereby injured; abandonment of contributory negligence doctrine and general trend is toward recognizing all forms of comparative fault, whether advertent or inadvertent, as forming basis for partial defense to claims seeking to impose liability based on ultrahazardous activities
Rylands v. Fletcher [1868]
▪ Facts
( is occupier of a mine; (s are owners of a mill adjacent to land of ( and proposed to make a reservoir for purpose of storing water to be used about their mill
Underneath land of (s were certain old and disused mining passages and works; it does not appear that any person was aware of the existence of either of the mine shafts or works
Reservoir of (’s was constructed through agency and inspection of an engineer and contractor; appears that engineer and contractor did not exercise reasonable care and caution to take notice of shafts beneath land
When reservoir was filled, weight of the water broke through the underlying shafts and flooded the (’s mine, causing considerable damage
▪ Holding
If a person brings, or accumulates, on his land anything which, if it should escape, may cause damage to his neighbor, he does so at his peril. If it does escape, and cause damage, he is responsible, however careful he may have been, and whatever precautions he may have taken to prevent the damage. The question in general is not whether the defendant has acted with due care and caution, but whether his acts have occasioned the damage.
▪ Reasoning
If (s used land for any non-natural use, introducing unto land an unnatural condition, and in consequence of doing so, or resulting from any imperfection of doing so, water escaped and came into land of plaintiff, (s would be liable
▪ Notes
Rylands is “chock-full” of well-established torts
➢ Flooding of plaintiffs mines constituted subsurface trespass; undermined because ( did not intend for water to touch (’s property
➢ Setting up of reservoir was a nuisance; undermined by fact it is one-time offense and not ongoing
➢ Creation of significant hazard near plaintiff’s land was in and of itself negligent
➢ Failure of engineers hired by mill owner to ascertain the existence of the underground shafts was negligence attributable to the mill owner; undermined by lack of respondeat superior as they are independent contractors
Klein v. Pyrodyne Corp. (1991) (en banc)
▪ Facts
( is a general contractor for aerial public fireworks displays and contracted to display fireworks at Western Washington State Fairgrounds in Puyallup, WA
As required by state statute, ( purchased $1M insurance policy prior to fireworks show, covering each occurrence of bodily injury or property damage liability; (s allege ( failed to carry out a number of other statutory and regulatory requirements in preparing for and setting off the fireworks
During the fireworks display, a 5-inch mortar was knocked into a horizontal position, aerial shell inside was ignited and discharged; shell flew 500 feet in trajectory parallel to earth and exploded near crowd of onlookers, injuring (s
▪ Holding
We hold that Pyrodyne Corporation is strictly liable for all damages suffered as a result of the July 1987 fireworks display. Detonating fireworks displays constitutes an abnormally dangerous activity warranting strict liability. Public policy also supports this conclusion.
▪ Reasoning
§ 520 of Restatement lists six factors that are considered in determining whether an activity is abnormally dangerous: (1) existence of high degree of risk of some harm to person, land, or chattels of others; (2) likelihood that harm that results from it will be great; (3) inability to eliminate the risk by 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
Comments explain how factors should be evaluated:
➢ Any one of them is not necessarily sufficient of itself, several of them are required for strict liability
➢ Not necessary that each of them be present, especially if others weigh heavily
➢ Essential question is whether the risk created is so unusual, either because of its magnitude or because of surrounding circumstances, as to justify imposition of strict liability, even though it is carried on with all reasonable care
Public policy considerations support imposing strict liability; difficult problem of proof if some other standard of liability were applied; abnormally dangerous or extra-hazardous activities frequently destroy all evidence of what in fact occurred
Court rejects negligent manufacture as intervening force; allocates economic burden of injuries arising from foreseeable negligence of third persons to party best able to plan for it and bear it, actor carrying on the abnormally dangerous activity
Chapter 12: Products Liability
1. Introduction
▪ Redress for injuries caused by products from 1850 to 1970
Negligence
Contract: breach of express or implied warranty that product was safe for ordinary use
▪ Emergence of products liability law
Suits today for product-related injuries are almost always grounded in separate body of law called strict products liability or products liability
Emergence as a distinct branch of law can be traced to 1963 and California Supreme Court decision in Greenman v. Yuba Power Products; ALI issued § 402A of Second Restatement in 1965
Theoretical underpinnings
➢ Mistake to privilege either “strict liability” or “negligence” as core principle of tort law
➢ Products liability is controversial in part because, as a later entrant into world of torts, it has emerged as a doctrinal hybrid
✓ Negligence law: emphasis on manufacturers’ duties of vigilance; proper balance of precaution and harm
✓ Property torts: concern for consumer’s legitimate expectations for physical safety
✓ Law of ultrahazardous activities: attention given to idea that certain forms of large-scale production pose unavoidable hazards
✓ Workers’ compensation: modernist sense of propriety of risk and los spreading; concern for uneven playing field between individual and large commercial enterprise
Justifications for Defect-Based Liability
▪ Traynor’s concurrence in Escola outlines several mutually reinforcing justifications for new conception of liability for injuries caused by defective products
Suggestion that manufacturers owe to consumers a particularly demanding obligation to be vigilant of product safety (obligation-based rationale)
Argument that manufacturers are best situated to take precautions, and therefore should be given strong incentives to take such precautions (deterrence-based rationale)
Argument that manufacturers are best situated to spread costs of accidental injuries caused by their products (compensation-insurance rationale)
Observation that responsibility for injury stems from having marketed a product that caused injury, regardless of negligence (causation-strict liability rationale)
Argument that victims’ entitlement to compensation should not depend on nature of the conduct that caused it (compensation-equality rationale)
Analysis of disparities in power in litigation concerning evidence and procedure (litigation-structure rationale)
Assertion that, if two ways of structuring the law lead to same result, more open and direct structure is preferable (judicial-candor rationale)
A. Precursors
Escola v. Coca Cola Bottling Co. (Cal. 1944)
▪ Facts
(, waitress in a restaurant, was injured when a bottle of Coca Cola broke in her hand; ( alleged ( was negligent in selling bottles which were dangerous and likely to explode on account of excessive pressure of gas or some other defect in the bottle
One of (’s drivers testified that he had seen other bottles of Coca Cola in the past explode and had found broken bottles in the warehouse when he removed cases, but did not know what made them blow up
( rested case and relied completely on doctrine of res ipsa loquitur, being unable to show any specific acts of negligence
▪ Holding
All requirements necessary to entitle plaintiff to rely on doctrine of res ipsa loquitur to supply an inference of negligence are present. It is well settled that when a defendant produces evidence to rebut the inference of negligence which arises upon application of the doctrine of res ipsa loquitur, it is ordinarily a question of fact for the jury to determine whether the inference has been dispelled.
▪ Reasoning
( in exclusive control of thing causing injury and accident would not ordinarily occur in absence of negligence
Explosion such as took place here might have been caused by an excessive internal pressure in a sound bottle, by a defect in the glass of a bottle containing safe pressure, or by a combination of both; defect which would make bottle unsound could be discovered by reasonable and practicable tests
▪ Concurrence [Traynor]
Manufacturer’s negligence should no longer be singled out as basis of plaintiff’s right to recover in such cases; manufacturer should incur absolute liability when (1) an article that he has placed on the market, (2) knowing that it is to be used without inspection, (3) proves to have a defect that causes injury to human beings
Public policy demands that responsibility be fixed wherever it will most effectively reduce hazards to life and health inherent in defective products that reach the market
▪ Notes
Escola case best illustrates rationales of strict products liability
Traynor relies on MacPherson in seminal concurrence
B. The Emergence of Strict Products Liability
▪ Henningsen v. Bloomfield Motors (N.J. 1960) provides roots of modern products liability law
Procedural Posture and Facts: Plaintiff was driving 10-day-old Plymouth sedan when its steering wheel suddenly spun in her hands, causing car to crash into wall; plaintiffs sued car dealer and manufacturer for causes of action in both negligence and warranty; trial court dismissed negligence claim an sent case to trial on warranty claims; jury returned verdicts for plaintiffs against both defendants; on appeal, manufacturer argued provision in contract of sale limited its liability for breach of warranty on any warranty theory and argued that any warranties accompanying the product were not for benefit of persons other than actual purchaser (plaintiff’s husband purchased car)
Holding: Court held contract’s disclaimer of liability was void as against public policy; noted limitation was provided in fine print in a standard form contract drafted and used by each of the “Big Three” U.S. auto makers and consumers were not likely to have any meaningful choice in acceptance; court also rejected privity argument, stating connotation of “consumer” was broader than that of “buyer,” encompassing any person who, in the reasonable contemplation of the parties to the sale, might be expected to use the product
Analysis: Escola avoided issues of privity by working within domain of negligence law; Henningsen solved privity problem within law of warranty by ruling (1) an implied warranty runs with a product and thus passes through intermediate seller to ultimate consumer; and (2) manufacturer and consumer were barred by law from agreeing to waive this implied warranty
▪ Vandermark v. Ford Motor Co. (Cal. 1964) extended Greenman, applying defect-based liability to the retailer of a product, not simply the manufacturer
▪ Holding: Retailers like manufacturers are engaged in business of distributing goods to public; they are integral part of overall producing and marketing enterprise that should bear cost of injuries resulting from defective products; in some cases retailer may be only member of that enterprise reasonable available to injured plaintiff; in other cases retailer himself may play substantial part in insuring product is safe or may be in a position to exert pressure on manufacturer to that end; retailer’s strict liability thus serves as an added incentive to safety; strict liability affords maximum protection to injured plaintiff and works no injustice to defendants, for they can adjust costs of such protection between them in course of continuing business relationship; since retailer is strictly liable in tort, fact that it restricts its contractual liability to manufacturer is immaterial
▪ Analysis: modern rules of products liability law apply to sellers of products at issue; retailers and manufacturers both qualify as sellers, as do others in distribution chain
Modern Warranty Law
▪ Following Henningsen, majority of jurisdictions abandoned privity requirement in implied warranty actions
▪ Article 2-314 of UCC
All goods come with an implied warranty of merchantability; promise that goods are safe and fit for ordinary use
Such warranties can be waived, but only by conspicuous and specific language agreed to by buyer at time of sale
Reach of implied warranty of merchantability differs across jurisdictions; some extend it past the purchaser to immediate family members, while others go so far as to render warranty enforceable for any foreseeable user of the product
▪ In general, modern products liability law, in which issues of waiver and privity do not arise, tends to push warranty theories of recovery to the side
Users versus bystanders
▪ New York Court of Appeals extended duty of care in MacPherson v. Buick to at least a subset of foreseeable users of cars, including passengers, but declined to indicate whether duty of care extended further to nonusers such as pedestrians and other bystanders
▪ In Elmore v. American Motors Corp. (Cal. 1969), California Supreme Court faced same issue
Facts: one plaintiff was a driver of automobile with a defective drive shaft; defect caused owner’s car to crash into oncoming vehicle; other plaintiff was injured driver of oncoming vehicle
Holding: public policy which protects driver and passengers of car should also protect bystander and where a driver or passenger of another car is injured due to defects in manufacture of automobile and without any fault of their own, they may recover from the manufacturer of the defective automobile
Reasoning: doctrine of strict liability may not be restricted on a theory of privity of contract; in both Greenman and Vandermark we did not limit rules stated to consumers and users but instead used language applicable to human beings generally; bystanders should be entitled to greater protection than consumer or user where injury to bystanders from the defect is reasonably foreseeable; consumers and users have opportunity to inspect for defects and to limit purchases to articles manufactured by reputable manufacturers and sold by reputable dealers, while bystander ordinarily has no such opportunities
▪ Jurisdictions addressing Elmore question have overwhelmingly permitted bystanders to recover on product liability theory; driven in part by goal to eliminate any vestiges of old privity doctrine
§ 402A of Second Restatements
▪ Issued in 1965 post-Greenman, endorsing recognition of products liability as separate heading of tort law; sets basic terms for analysis of product liability cases
▪ Provisions
402A (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
402A (2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
Greenman v. Yuba Power Prods., Inc. (Cal. 1963)
▪ Facts
( saw a demonstration and studied a brochure prepared by the manufacturer for Shopsmith, a combination power tool that could be used as a saw, drill, and wood lathe; (’s wife bought and gave him one for Christmas in 1955
In 1957 ( bought the necessary attachments to use the Shopsmith as a lathe; after working on piece of wood several times without difficulty, it suddenly flew out of the machine and struck ( on the forehead, causing serious injuries
10 ½ months later, ( gave retailer and manufacturer written notice of claimed breaches of warranties and filed a complaint; court ruled there was no evidence retailer was negligent or had breached and express warranty ant that manufacturer was not liable for breach of any implied warranty
Trial court submitted to jury only cause of action alleging breach of implied warranties against the retailer and causes of action alleging negligence and breach of express warranties against manufacturer
▪ Holding [Traynor]
Even if plaintiff did not give timely notice of breach of warranty to manufacturer, his cause of action based on the representations contained in the brochure was not barred. To establish the manufacturer’s liability it was sufficient that plaintiff proved that he was injured while using the Shopsmith in a way it was intended to be used as a result of a defect in the design and manufacture of which plaintiff was not aware that made the Shopsmith unsafe for its intended use.
▪ Reasoning
Jury could also reasonably conclude that statements in manufacturer’s brochure were untrue, that they constituted express warranties, and that plaintiff’s injuries were caused by their breach
To impose strict liability on manufacturer, it was not necessary for plaintiff to establish an express warranty; manufacturer is strictly liable in tort when an article he places on the market, knowing it is to be used without inspection for defects, proves to have a defect that causes injury to a human being
Purpose of such liability is to ensure costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves
▪ Notes
Case that made strict products liability the law
2. Basics of a Products Liability Claim
Products Liability: Prima Facie Case
▪ Actor A is subject to liability to person P in products liability if:
P has suffered an injury;
A sold a product;
A is a commercial seller of such products;
at the time it was sold by A, the product was in a defective condition; and
defect functioned as an actual and proximate cause of P’s injury
▪ injury and causation elements are parallel to those of negligence; duty and breach elements of negligence are missing
A. What counts as an injury?
▪ Complainants filing products liability actions overwhelmingly do so to obtain redress for physical harm caused by product defects; product liability doctrine, like negligence law, is much more reticent in recognizing claims for other sorts of injuries allegedly flowing from product defects, such as intangible economic loss
▪ General rule, subject to jurisdictional exceptions, is that owner cannot invoke products liability law to recover for a defect that causes damage to, or destruction of, the product itself; left to protections they were able to obtain in contract of sale via express or implied warranties
B. What is a “Product”?
▪ Services, even when provided commercially, are not products
▪ As an item comes more closely to taking form of real property, it is unlikely to qualify as a product
Parcels of land and individual buildings/houses traditionally would not be deemed products
Mass-produced or prefabricated homes are frequently considered products
▪ Human body parts, tissues, blood, blood products and cells are usually not considered products; numerous jurisdictions have “blood shield” laws which eliminate strict liability for blood and blood products
▪ Live animals sold as pets or livestock are frequently not considered products, though courts differ depending on context in which injury caused by animal comes about
Blaha v. Stuard (S.D. 2002): dog that bit plaintiff not a “product”
Worrell v. Sachs (Conn. Super. 1989): dog that carried disease when sold qualifies as a “product”
▪ Textual material such as encyclopedias, guides, or books are generally not considered products
Maps and charts are sometimes held to be “products”; Artiglio v. General Elec. Co. (Cal. App. 1998): inaccurate map used by pilot was a “product”
▪ Intangibles such as electricity and x-rays generally are not treated as products, but occasionally qualify
▪ Used products are not normally subject to strict products liability
▪ Some jurisdictions deem a type of item to be a “product” but nevertheless have made deliberate decision to exempt product from the reach of product liability laws; prescription drugs and vaccines are common examples
C. Who or what is a “Seller”?
▪ Retailers, manufacturers, and distributors all constitute “sellers”
▪ Products liability also attaches liability to a person or entity that played no role in the design, manufacture, or inspection of the product
▪ Sellers and law of warranty
Jurisdictions lacking tort of strict products liability have fairly close analogues within their contract law
Many states have overlapping statutory law that provides what are essentially products liability actions under consumer protection laws or deceptive trade practices statutes; such laws provided much of impetus for state-government initiated tobacco products liability litigation that took place in the 1990s
▪ Distribution chains
Suppose McDonald’s franchise sells a “Happy Meal” to a family and a component of the toy injures the child; distributional chain might include franchise, McDonald’s, distributor who sold toy to McDonald’s, manufacturer of toy, and manufacturer of the component of the toy that injured the child
Capacity of distribution chain members to insure themselves and to negotiate with one another over indemnification is among reasons that our system does not consider strict liability for (not-at-fault) sellers to be inherently inequitable
▪ “Easy duty” negligence
Products liability law does not require plaintiff to be a buyer of the product as indicated by Elmore; jurisdictions tend speak in language of “easy duty” negligence cases, requiring only that plaintiff be within class of persons foreseeably put at risk of physical harm by defective product
▪ In the Business of
Person or entity who sells product does not automatically qualify as a “seller” of that product for purposes of products liability law; she must also be “in the business of selling (or marketing)” such products; a lawyer who contracts to purchase a new car, but then contracts to sell it to his neighbor before ever using it, would not qualify as a “seller” for products liability law
▪ What Constitutes Selling
It is enough to establish that actor has “sold” a product if the actor took steps to place product on the market or figured in distributional chain through which a products is placed on the market
➢ Sell can occur even if the actor did not transfer legal title to product and even if he did not enter a bargain in which ownership was transferred for consideration; automobile company or dealer cannot avoid products liability law by leasing the product rather than selling it
➢ Actual transfer of sale is not necessary to trigger products liability law, if the nature of the plaintiff’s contract with the product is sufficiently close to the normal domain of the marketplace; car manufacturer would be liable for a plaintiff injured by a defect in a “test drive” or a “loaner”
Business or professional engaged in service may utilize or sell a product to a consumer as part of service and court will not treat defendant as seller if defendant is engaged primarily in a service
➢ Ayyash v. Henry Ford Health Sys. (Mich. App. 1995): declining to apply strict products liability to hospital that implanted defective jaw implant, relying on sales/service distinction
▪ Component Parts
If component part is defective and because of defect larger product of which it is part injures plaintiff, seller and manufacturer of component will be liable
If component manufacturer is able to demonstrate there was nothing defective in its product and problem was simply that larger product did not function optimally with that particular component, component part manufacturer or supplier will frequently avoid liability; Artiglio v. General Elec. Co. (Cal. App. 1998): manufacturer of silicone for defective breast implants not subject to strict liability
Seller or distributor of component may be liable if it “substantially participates in integration of the component into design of the product” and “the integration of the component causes the product to be defective”
D. The Key to Products Liability: Defect
Categories of Defect
▪ What counts as a “defect” is probably single most important question in products liability law; product can be “dangerous” without being defective (the “butter” problem or the “knife” problem)
▪ U.S. courts have identified three different categories of defect: manufacturing defects, design defects, and warning defects; they have adopted one or more formal legal tests for determining what constitutes a defect with respect to design defects and failure to warn
➢ Manufacturing defect: particular product diverges from manufacturer’s own specifications for the product
✓ Item need not be mass-produced
✓ Defect will be charged to manufacturer as long as it emerges while product is in its control or possession, even though problem developed after product was assembled
➢ Design defect: defects in entire line of products due to flaw in plan or specification for product; criteria used to ascertain whether design is defective is perhaps most controversial and hotly debated question within products liability doctrine
✓ Significance of risks of physical injury posed by the particular design
✓ How ordinary consumers would expect the product to function
✓ Whether there is a feasible, safer, and affordable alternative design
➢ Failure to warn or instruct: safety requires that product be sold with a warning, but product is sold without a warning (or without an adequate warning)
✓ Mislabeled product
✓ Medication with incorrect dosage instructions
✓ Microwave that fails to warn that heating metal objects can cause explosion or fire
Proving Manufacturing Defect
▪ In cases where harmful product has been severely damaged, destroyed, or is missing, proof problems can be daunting; plaintiffs in this situation are given fair bit of leeway to rely on circumstantial evidence as § 3 of Restatement Third indicates
§ 3 Circumstantial Evidence Supporting Inference of Product Defect
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:
a) Was of a kind that ordinarily occurs as a result of a product defect; and
b) Was not, in the particular case, solely the result of causes other than product defect existing at the time of sale or distribution
▪ § 3 will most commonly apply to claims of manufacturing defect rather than design defect or failure to warn
▪ Normally it is plaintiff’s burden to prove that defect existed at time of sale
▪ Actual and Proximate Causation are both similar to standard negligence in products liability
Actual causation: raise highly fact-intensive issues for jury and ordinarily are governed by “but-for” standard
Proximate causation: injuries caused only fortuitously by a product defect will not support a cause of action for lack of proximate cause
Superseding cause is also recognized in products liability cases
Other Causes of Action
▪ Loss of Consortium
As a general rule, claims such as loss of consortium, survival action, and wrongful death stand on same footing in products liability actions as they do in negligence claims
▪ Other Causes of Action
Special cause of action does not mean it is only cause of action a plaintiff can or will bring; victim’s lawyer is likely to file a complaint including negligence, breach of implied warranty, breach of express warranty, and misrepresentation, as well as applicable state and federal statutory claims
▪ Relationship to Negligence
To extent a plaintiff can recover in products liability for injuries caused by a defective product, they cannot recover again for same injuries caused by same product in negligence
Some argue that plaintiffs may obtain strategic advantages by framing a claim in negligence rather than in strict products liability; by focusing jury’s attention on issue of fault, building of a negligence case is more likely to foster a sense among jurors that a genuine wrong has been done, and that compensation is therefore owed
Defenses
▪ Statutes of limitations
▪ Comparative responsibility
Comparative fault/implied assumption of risk
Product misuse
▪ Regulatory compliance & preemption (by statute)
Preemption is compliance with federal regulation that provides defense against state tort
Gower v. Savage Arms, Inc. (2001)
▪ Facts
( was hunting and gun discharged while he was preparing to unload his gun, shooting him in the foot; at time of discharge, plaintiff had not taken gun off the “safe” position and rifle was designed so as not to fire when in “safe” position
All guns shipped out by ( in 1987 were shipped in boxes containing safety manuals; ( purchased gun without box and did not receive safety manual
Expert inspections confirmed rifle was not working properly at time of accident; safety mechanism could only be placed in “safe” position with more than usually required force
Rifle at issue was manufactured by Savage Industries in 1987; in February 1988, Savage Industries filed for bankruptcy and sold four of its eleven product lines to Savage Arms
▪ Holding
Court grants the defendants’ motion with respect to the “unloading defect” and insufficient warnings claims. Court denies defendants’ motion for summary judgment with respect to the strict liability claims concerning the “detent defect” and the “manufacturing defect.”
▪ Reasoning
Plaintiffs failed to present any evidence that lack of instructions caused plaintiff’s injury
➢ Insufficient warnings could not be cause of injury because the plaintiff had independent knowledge of the gun’s dangerous propensities; plaintiff had extensive training in use and safety of firearms while in the United States military
➢ Suppliers duty to warn is discharged by providing information to third parties upon whom it can reasonably rely to communicate the information to the ultimate users of the product
Plaintiff claims not to have been unloading the gun when it discharged; therefore the fact that the gun could not be unloaded while in “safe” position is not causally related to plaintiff’s injury
Plaintiff’s expert alleges lack of positive detents on safety slide will leave operator with impression safety is “on” when guns remains ready to fire; expert described “exemplar trigger system” as “adequate” and found only that detent would make rifle more “user friendly”
Plaintiffs allege there was a manufacturing defect in the rifle in the form of a metal ridge that affected functioning of safety
➢ For purposes of summary judgment, finder of fact need only compare product that caused injury with other products manufactured according to specifications; expert undertook such a comparison and found subject rifle had the metal ridge, while exemplar rifle of same model did not
▪ Notes
Illustration of all categories of defect
Branham v. Ford Motor Co. (2010)
▪ Facts
Action involves 1987 Ford Bronco II 4x2, manufactured in 1986; on June 17, 2001, ( Hale was driving with ( in backseat
( took her eyes off the road and turned to the backseat; when she did so, the Bronco veered towards the shoulder of the road and the rear right wheel left the roadway
When ( realized her vehicle had left the roadway, she responded by overcorrecting to the left; overcorrection led to vehicle “shaking” and it rolled over, throwing ( from the vehicle
Case against Ford was based on defective seatbelt sleeve claim and a “handling and stability” design defect claim related to vehicle’s tendency to rollover
▪ Holding
In a product liability design defect action, plaintiff must present evidence of a reasonable alternative design. Presentation must include consideration of the costs, safety and functionality associated with the alternative design.
▪ Reasoning
Third edition of Restatement moved away from consumer expectations test for design defects and towards a risk-utility test
➢ Some form of a risk-utility test is employed by an overwhelming majority of jurisdictions; some jurisdictions exclusively employ a risk-utility test, others employ a hybrid of the risk-utility and consumer expectations test
➢ States that exclusively employ consumer expectations test are a decided minority
➢ In design defect cases the risk-utility test provides the best means for analyzing whether a product is designed defectively; focus of risk-utility test centers upon the alleged defectively designed product, while consumer expectations test and its focus on the consumer are ill-fitted to determine whether a product’s design is unreasonably dangerous
Product not in a defective condition unreasonably dangerous merely because it “can be made more safe”
▪ Notes
Illustration of risk-utility test for design defects
Compare Branham to Greenman
➢ Consider Escola concurrence and emphasis on (1) warranty, (2) easing (’s evidentiary burden, (3) loss spreading, and (4) deterrence
➢ Traynor likely did not consider modern design defect claims or $31M verdicts, hence evolution towards “negligence-like” standard that deviates from Traynor’s original intent (↑ complex, ↑ stakes than Escola)
➢ Trend is to move strict products liability back towards negligence for anything other than “simple” products
➢ Manufacturing defect liability remains strict
➢ Special rules for determining design defect for prescription drugs; some courts reject any form of strict products liability
|Comparison of Design Defects Tests |
|Consumer Expectations (CE) |Risk-Utility (RU) |
|Was product safe as an ordinary consumer would expect? |Do design’s benefits outweigh risks? |
|Warranty heritage |Negligence heritage |
| |Similar to Hand Formula test |
| |Early rendition (“Wade-Keaton” test) posed question in hindsight (i.e.|
| |given what is known of risks at time of trial) and not in foresight |
| |(i.e. what ( could foresee at time of manufacture) |
|Often relatively ( friendly (jury has broad leeway) |Sometimes ( friendly (if cheaply avoidable, even obvious risks can be |
| |basis for defectiveness finding, based on Hand formula) |
|Sometimes ( friendly (difficult to claim obvious risks are unexpected |Often relatively ( friendly (jury deference to design experts, more |
|in operation of industrial machines) |room for summary judgment, raises cost of litigation as ( must hire |
| |experts) |
V. Damages
Chapter 8: Damages and Apportionment
1. Elements and Availability of Damages
Eggshell (or thin) skull rule
▪ Expressed in Vosburg: “tortfeasor takes his victim as he finds him”
▪ Reasoning is that having wronged or injured another, tortfeasor cannot be heard to complain that amount of damage caused to that other was much greater than anyone could reasonably have expected because of hidden physical vulnerability
▪ Eggshell psyche
Demonstrated in Mustapha v. Culligan of Canada, Ltd. (Ont.Ct.App.2006)
➢ Facts: plaintiff found a dead fly in an unopened container of water in a water cooler; plaintiff was already compulsive about maintaining a sanitary home and became obsessed with thought family had consumed contaminated water
➢ Holding: trial court found for plaintiff on ground defendant could not point to unforeseeable severity of plaintiff’s reaction as a ground for limiting the damages recoverable on a viable tort claim
A. Compensatory Damages
▪ Two categories of compensatory damages
Economic or out-of-pocket losses
➢ Past and future medical bills
➢ Lost earnings
➢ Repair costs
Noneconomic losses
➢ Pain and suffering
➢ Depression
➢ Anxiety
➢ Loss of enjoyment of life
▪ As a rule, economic losses are more readily quantifiable than noneconomic losses; noneconomic losses are notoriously difficult to quantify
▪ Compensatory damages and “making the plaintiff whole” #policy
As applied to economic losses, imagery of making whole is appropriate enough, but it is inapt with respect to noneconomic losses
➢ Few believe with respect to serious injuries that monetary compensation restores plaintiff to life he had prior to tort; person has physical and emotional scars, permanent disabilities, experience of being the victim of a tort
➢ Juries are not instructed to award amount of compensation that “makes plaintiff whole” instead they are told to award an amount that they deem “fair and reasonable”
▪ Compensatory damage awards are usually paid out to successful negligence plaintiff in one lump sum; if it subsequently turns out that jury under or overestimated damages there is no recourse for plaintiff or defendant
▪ Permissive or mandatory
Jury instructions vary on rule as to whether they employee permissive or mandatory language with regards to awarding compensation for unforeseeable damages
▪ Duty to mitigate damages
Defendant who is liable in negligence may argue that he is not responsible to compensate for certain damages flowing from that negligence on ground that plaintiff could and should have taken certain steps to avoid them, but didn’t
Pre-Accident mitigation: Some courts have deemed evidence of plaintiff’s failure to wear a seat belt or a bicyclist’s failure to wear a helmet inadmissible with respect to damages
▪ Workers’ Compensation versus Compensatory Damages #policy
Workers’ compensation benefits are paid out sequentially rather than in a lump sum
Typically limit injured employee’s compensation to medical expenses related to treatment of workplace injury, plus fixed percentage of lost wages; intangibles such as emotional distress are not separately compensable
▪ Inequality #policy
Experts who testify as to lost future earnings generally rely on statistics as to how much person with same education, background, and traits could have expected to earn before an after injury in question
Some argue this reproduces effects of past discrimination when certain groups have been subject to hiring and pay discrimination; suggest courts should adjust for statistical biases by requiring presentation of data of all workers in a given field, regardless of race, gender and other characteristics
▪ Bifurcation
Federal and state rules of procedure for civil actions typically grant trial judge broad discretion to bifurcate trial of a tort action based on assessment of whether it will promote efficient and fair resolution of the dispute before her; most federal and state judges maintain presumption against granting bifurcation motions
▪ Black-letter doctrine holds a trial judge should not second-guess a jury’s compensatory damage award unless, after viewing the evidence in the light most favorable to plaintiff, verdict “shocks the conscience” or is so out of line with the evidence presented that it was likely the product of “passion, prejudice or other improper motive”
▪ Comparison with other awards
Some jurisdictions, perhaps most, permit trial judges to gauge alleged excessiveness of a jury award in part by comparing it with awards given in other similar cases; care must be taken in determining what constitutes a similar case
▪ Remittitur and Additur
Remittitur: option for plaintiff to accept lower damage award in lieu of a new trial
➢ practice is still used in federal courts and most state courts
➢ Does not take away power of trial judges to order new trials
Additur: option for defendant to pay higher damage award in lieu of new trial
➢ Practice is allowed by some jurisdictions
▪ Appellate Review
Question is whether trial court “abused its discretion” in upholding or second-guessing jury award
▪ Collateral Source Rule
Collateral source rule: holds that tortfeasor is not entitled to present evidence at trial indicated that the victim has received, or stands to receive, compensation of injuries from some other source
Rationales
➢ Tortfeasor should not have good fortune of having wrongfully injured a person with insurance or other sources of income
➢ Deducting for insurance proceeds would deny plaintiff benefit thy secured by obtaining insurance
➢ Helps counteract American rule denying successful tort plaintiffs attorneys’ fees as part of compensatory damages
In recent years, as many as half the states have modified or abolished the collateral source rule
➢ Some merely permit defendant to submit for factfinder’s consideration evidence (e.g. NY eliminated rule for medical malpractice cases)
➢ Other laws mandate that any recovery by plaintiff be offset
▪ Tort Reform
Noneconomic losses have become focal point for tort reform debates due to awards deemed arbitrary, unpredictable, and too large
Reforms have included flat caps on compensatory award (VA statute imposing $1.5M limit in medical malpractice) and caps only on noneconomic damages (CA statute imposing $250,000 cap in medical malpractice)
Smith v. Leech Brain & Co. Ltd. [1962]
▪ Facts
Smith was employed by defendants at their iron works which produced “galvanized” articles; galvanizing process involved dipping items into large tank filled with hot molten metal
Larger articles were lowered into tank by means of overhead crane; location of controls posed danger to crane operators because when items were dipped into tank, molten metal spattered out of tank
(s provided sheet of corrugated iron as a partial roof to protect operators; makeshift shield required turning back to tank and “sandwiching” sheet between back and brick wall
(’s s back was to tank so he could not view dipping process and relied on signals from another employee; ( inadvertently situated head outside of shield
( sustained a burn on his lip, wound never healed, ( developed cancer at point of wound which caused his death
▪ Holding
Test is not whether employers could reasonably have foreseen that a burn would cause cancer and that he would die. Question is whether these employers could reasonably foresee the type of injury he suffered, namely the burn.
▪ Reasoning
Illustration of ‘eggshell skull” rule: tortfeasor takes his victim as he finds him
Kenton v. Hyatt Hotels Corp. (1985)
▪ Facts
Respondent [Kenton] brought case against Appellant [Hyatt] for damages; trial resulted in jury award of $4M in compensatory damages
Court granted appellant’s post-verdict motion seeking new trial on ground that the jury’s verdict was excessive and entered order sustaining motion unless respondent filed a remittitur of $250,000 (reducing award to $3.75M); respondent accepted remittitur and both parties appealed
Court of Appeals affirmed judgment but declined to restore the remittitur
▪ Holding
Trial court abused discretion in ordering remittitur of $250,000 after verdict of $4M under circumstances. Amount represents miniscule percentage (6.25%) of total verdict which demonstrates judicial hairsplitting and shows extremes to which the remittitur practice has fallen. Accordingly verdict of jury is affirmed and cause is remanded with directions to set aside order of remittitur and to reinstate verdict and enter judgment for plaintiff in sum of $4M.
▪ Reasoning
There is no exact formula to determine whether a verdict is excessive, each case is considered on its own facts; ultimate test is what fairly and reasonably compensates plaintiff for the injuries sustained
▪ Notes
Illustration of elements of compensatory damages
G. Punitive Damages
▪ Common law threshold for awarding punitive damages
Absent evidence of intent to harm, D must act wantonly or with conscious indifference towards P with risk of imminent, serious injury
▪ Jury awards of punitive damages are rare (awarded in less than 5% of all tort cases going to verdict); tend to be given to plaintiffs asserting claims for intentional wrongs
▪ Plaintiff is ineligible to receive punitive damages if they can only establish defendant acted carelessly towards them; another well-established rule holds there is a certain subset of negligence suits in which juries retain discretion to award punitive damages – gross and criminal negligence
▪ Two forms of reckless conduct, distinguished by degree to which actor is cognizant of risks posed by their conduct
Wanton disregard: actor has acted recklessly even though he was not actually aware of the dangers posed by his conduct at the time of acting
Deliberate indifference: actor is aware both that his conduct creates an unreasonable risk of physical harm to another, and that such risk is substantially greater than that which is necessary to make his conduct careless
▪ Recklessness and drunk driving
Many jurisdictions allow punitive damages in cases where defendant has caused an accident while operating a vehicle with a blood alcohol level above limit set by criminal statutes
▪ Trial procedure
Jurisdictions split over whether plaintiffs ought to face greater burden on threshold question of wantonness, willfulness or indifference; many take position that plaintiff must present “clear and convincing evidence”
Issue of punitive damages is, in the first instance, left to discretion of jury
Bifurcation #policy
➢ Courts have uniformly deemed evidence of defendant’s wealth to be relevant to jury’s determination of size of punitive award
✓ Actor’s wealth may have factored into decision to behave as it did
✓ Larger award may be necessary to send meaningful “message” to wealthy individual or entity
➢ Some states mandate, and others permit, a trial judge, at request of defendant, to bifurcate trial proceedings
▪ Statutory “Safe Harbors”
In some instances, bars award of punitive damages to a person injured by a product, even if a jury could declare the product negligently made or defectively designed, if D can establish that its product was produced and sold in conformity with safety standards set by state and federal regulators
▪ Punitive Damages and Vicarious Liability
Basic rule is that plaintiff can seek compensatory damages out of company assets if injuries result from a tort committed by a company employee in the course of employment
Most jurisdictions require greater managerial involvement before permitting employers to be held liable for punitive damages arising out of employees’ tortious acts; firms are held liable only if tortious conduct was committed by management-level employees or committed by lower-level employees whose conduct was then endorsed or “ratified” by management
National By-Products, Inc. v. Searcy House Moving Co. (1987)
▪ Facts
Appellant Foley was driving a large tractor trailer for appellant south; at same time, appellee was moving a house north on same highway
Appellee could not get house through a bridge and while house was being adjusted on house moving trailer, traffic was stopped and flagged around in one lane of traffic still open; (s were slowly staring to go through open lane when defendant Foley, speeding in an overweight truck smashed into the rear of their car, causing it to hit the house and trailer and then hit two bystanders
Appellant National’s truck also struck house and then crashed into another tractor-trailer rig; plaintiffs were killed
▪ Holding
Foregoing facts do not show that appellant, either by its own policies or through the actions of its agent Foley, intentionally acted in such a way that the natural and probable consequence was to damage appellee’s property. Nor do the facts show that appellant knew that some act of neglience was about to cause damage, but still continued to cause that damage. Accordingly, we reverse the judgment for punitive damages.
▪ Reasoning
Punitive damages are justified only when the evidence indicates there was a wanton and conscious indifference for the rights and safety of others on the part of the tortfeasor; it is not necessary to prove that the defendant deliberately intended to injure the plaintiff
In case at bar there was proof of gross negligence, but gross negligence is not sufficient to justify punitive damages
▪ Notes
Illustration of punitive damages
Note that jury could have concluded that Foley acted with wanton disregard to well-being of others
Mathias v. Accor Economy Lodging, Inc. (2003)
▪ Facts
( owns and operates “Motel 6” chain of hotels and motels; (s were guests at hotel in downtown Chicago at rates exceeding $100/day and were bitten by bedbugs
▪ Holding
We cannot say that the award of punitive damages was excessive, albeit the precise number chosen by the jury was arbitrary.
▪ Reasoning
Evidence was shown of gross negligence, indeed of recklessness in strong sense of an unjustifiable failure to avoid a known risk
Three penal precepts
➢ Principle that punitive damages should be proportional to wrongfulness is modified when probability of detection is very low or the crime is potentially lucrative
➢ Defendant should have reasonable notice of sanction for unlawful acts, so that he can make a rational determination of how to act
➢ Sanctions should be based on wrong done rather than on status of the defendant
Award of punitive damages in this case serves additional purpose of limiting the defendant’s ability to profit from its fraud by escaping detection and prosecution
If defendant’s argument that damages are excessive is accepted, plaintiffs would likely have had difficulty in financing this lawsuit
▪ Notes
Illustration of what constitutes excessive punitive damages
Note that defendants could be said to have acted with deliberate indifference
Other forms of redress
▪ Nominal damages: token award (usually $1) serving as acknowledgement of tort notwithstanding absence of any compensable losses
▪ Injunctive relief: order from court mandating defendant cease engaging in particular activity
2. Joint Liability and Contribution
Joint and Several Liability (JSL)
▪ Joint and several liability: plaintiff has choice to recover entire damages from one defendant or the other, or some from each
▪ When JSL applies, plaintiff will likely collect 100% of damages from one defendant
▪ Available typically in two scenarios
Two or more tortfeasors engage in jointly tortious activity that injures plaintiff (See Cecarelli)
Two or more tortfeasors act independently of one another, but cause plaintiff to suffer single, indivisible injury (See McDonald)
Several (or “Several-only”) Liability
▪ Main alternative to JSL, if two or more tortfeasors cause injury to plaintiff, plaintiff may only recover from each the percentage of damages corresponding to each tortfeasor’s share of responsibility
Before comparative fault, percentage divided evenly among tortfeasors (e.g. 3 tortfeasors = 33% damages from each)
Today, in comparative fault world, recover from each percentage assigned by factfinder
JSL versus Several Liability
▪ Contribution: lawsuit that seeks reimbursement for liability incurred by one defendant that should, in fairness, have been incurred by another defendant
▪ Can be used by one defendant to recover from another the amount that first defendant “overpaid” in JSL claim
▪ JSL and several liability differ in who bears risk of one tortfeasor being insolvent or unavailable
JSL assigns this risk to defendant/tortfeasor
Several liability assigns this risk to plaintiff
▪ Alleged unfairness of JSL towards defendants has made it attractive target for tort reform
Ravo v. Rogatnick NY 1987
▪ Facts
Obstetrician misdiagnosis + pediatrician diagnosis = brain damage & retardation for girl
▪ Holding
Ruled 80% Obstetrician’s fault and 20% pediatrician’s fault
Pediatrician’s motion to have his damages capped at 20% is denied
▪ Reasoning
Jury’s apportionment of fault is totally separate from classification of joint-and-several-liability
.
3. Indemnification and Liability Insurance
▪ Liability insurance: contract that typically issues two promises in exchange for an annual fee (premium): (1) promises to indemnify any person insured under policy for certain liabilities, and (2) promises to pay for defense of any lawsuits against the insured that seek to impose liability covered under policy
▪ Primarily designed to cover liabilities arising out of accidents
▪ Existence or absence of liability insurance is often critical in determining if plaintiff has realistic prospects of recovering on tort judgment
▪ Liability-insurance provisions typically found in homeowners’, automobile, malpractice, and personal “umbrella” policies
Interinsurance Exch. of the Automobile Club v. Flores (1996)
▪ Facts
Insured driver gives friend a ride to conduct a drive-by
Insurer brings suit against victim seeking “declaratory judgment” – a legally binding declaration of rights and responsibilities in advance of any tort litigation
▪ Holding
Insurer not obliged to provide driver w/ coverage for victim’s injuries as this was an intentional tort not covered under automobile liability insurance policy
▪ Reasoning
Policy covers liability for personal injuries caused by an “occurrence” arising out of use of the insured automobile
Occurrence is defined as an event “accidental or unintended” from the point of view of the insured; shooting was not accidental in this sense and thus not an occurrence
Court also observes that even if insurer had agreed to insure against this type of liability, it would be void as matter of public policy under state law, as state does not want to encourage batteries
▪ Notes
Compare to National American, where teenage boys conduct a drive-by “egging” of a pedestrian, causing injury that is said to constitute an accident because they did not intend to cause injury, entitling them to indemnification from the insurer
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