INTENTIONAL TORTS - HLS Orgs



INTENTIONAL TORTS

Battery = to intentionally cause harmful or offensive touching

o 1. Voluntary act with Intent to cause contact that’s harmful or offensive

o 2. Actual harmful or offensive contact caused by the act

o 3. Some damage caused by the contact

▪ (1) INTENT FOR HARMFUL/OFFENSIVE CONTACT

o No need to intend harm. Only need to act intending to make contact in a way that caused harm or offense (most likely subject to a reasonableness test or wrongful/unlawful test)

▪ Intent is most important for the intentional act in such torts, not necessarily intent to do something wrong (courts weigh differently; reasonable person standard, etc)

o Vosburg v. Putney, pg 1

▪ No intent to do harm required in battery. Pl must only show either that intention was unlawful, or that Def is in fault. If the act itself was unlawful, the intention to do that act is also unlawful.

▪ Holding: since the kick was not on the playground (where “implied license” might apply) it and the intention to do it were unlawful

▪ Rule for damages in intentional Tort: foreseeability not a requirement; wrongdoer is liable for all injuries resulting directly from the wrongful act.

▪ See also Keel pg 8: no intent to injure required, provided act was wrongful, thereby making intent to do that act wrongful. (throwing erasers; didn’t mean to hit Pl( imputed intent).

▪ *Note: no infancy defense to battery

o Knight v. Jewett, pg 3

▪ Def stepped on Pl’s finger during touch football and it was eventually amputated. Court finds intent requirement for battery was not met because Def didn’t intend to make the contact

o White v. Univ of Idaho, pg 4

▪ Piano teacher touches student’s back to demonstrate; all kinds of injuries result

▪ Rule in this case: If an intentional act causes harm or offense, it is enough, even if no intent to harm or offend.

• Here, court reasons that contact is offensive/harmful because unpermitted

• This is minority rule, since no intent to make harmful/offensive contact. Court uses subjective intent test: it was offensive to Pl and harm resulted, therefore battery. Most courts would employ a reasonable person standard for whether contact was harmful/offensive

o VOLUNTARY ACT

▪ Insanity Defense: (Polmatier v. Russ)

• You can’t escape intentional act requirement in tort by claiming insanity (public policy reasons—encourage people to take care of insane people)

• Note how this might be different if he shot the gun thinking he could stop the bullets in midair: then he would not have acted with intent to cause harmful/offensive contact

▪ Laidlaw v. Sage

• Def moves Pl in front of him to protect him from bomb blast.

• Rule: the law presumes that an act done under the influence of pressing danger was done involuntarily (duress creates invol act).

o Transferred intent: if you intend to cause harmful contact to A, but instead harm B, your intent is met for B. Intent to do a wrongful act creates requisite intent. Keel.

o Substantial certainty that a harmful/offensive contact will occur is enough for intent. (e.g. pulling out chair)

▪ (2) COMMIT OR CAUSE HARMFUL/OFFENSIVE TOUCHING

o Typically based on what would offend a reasonable person.

▪ Intentionally blowing smoke in someone’s face counts.

o But not being contacted by fumes from bus (Ct dismisses for no showing of willfulness or specific wrongful intent). There was no specific intent to make harmful contact—nothing unlawful or wrongful in the act and any harm is pretty conjectural.

o RS§18

▪ Contact may come from anything held or attached to Def

▪ Act of actor need not directly cause the contact (e.g. leaving filth on towel you know B will use)

▪ Not necessary for Pl to be aware of the contact when it happens!

▪ For contacts which only offend (not injure) there must be actual intention for tort liability. Negligent or Recklessness not enough if no actual harm results.

o RS§19

▪ A bodily contact is offensive is it offends a reasonable sense of personal dignity

▪ DEFENSE: CONSENT

o Consent may be offered as an affirmative defense or “privilege” to any intentional tort claim, or it can negate that the touching was offensive.

o Consent must go to the essential character of the act/contact to be effective (as long as this present, collateral matters or inducements don’t matter)

o Ghost Surgery: Grabowski v. Quigley:

▪ Rule: Pl has alleged enough for battery, since he only consented to the one doctor, not the other (both docs liable)

▪ Compare to RS§52: there are many situations where consent is given to one, but can reasonably be interpreted to include others, assistants or subordinates (as in hospitals).

o Implied Consent:

▪ Werth v. Taylor, pg 19: Pl is Jehovah’s Witness and can’t get blood transfusions and signs form saying she doesn’t want them. In middle of surgery under anesthesia, she needs transfusion or will die, so doc does it.

• Rule: The law implies consent of an unconscious patient to medical procedures needed to save her life, where there is no opportunity to obtain actual consent.

o Under these circumstances, when we can infer that most people would consent to save life, the consent is implied, even if this particular patient might not have.

• Holding: no battery. Her earlier refusals were not made with potential death in mind so were not contemporaneous or informed (i.e. weren’t refusals of consent for this particular scenario)

o RS§892: Meaning and manifestation of consent

▪ Consent = willingness in fact for conduct to occur

▪ Consent may be manifested by action, inaction and need not be communicated to the actor to be present

▪ Apparent Consent: if a reasonable person would interpret your words/conduct as consent, it operates as an effective consent

▪ Actual consent (even if not expressed at all) is also effective

o Effective and Ineffective consent:

▪ Intoxication: may negate consent if other party knew, Hollerud v. Malamis

• Note: can it negate intent?

▪ Fraud/Mistake/Lie

• If one party knows other is mistaken about character of touching/conduct, there will be liability (RS§892)

• Desnick: Determining liability, where there has been misrep, has to do with the interest that the tort protects (inviolability of person, property, etc).

• Freedman v. Superior Court: Docs tell Pl to take drug to prevent infection, but its really to speed up her contractions. Held for defendants.

o Rule: to negate consent the mistake must extend to the essential character of the act itself—that which makes it harmful or offensive—rather than to some collateral matter that’s merely an inducement.

▪ Ex: telling student that sex will improve her voice negates consent because essential character of act is misrepresented. Seducing sex with false promise of marriage is not battery bc misrep doesn’t relate to the sex, but whether marriage will follow.

▪ Rule: as long as there is consent to treatment from a doctor, and as long as doctor is acting to treat, it doesn’t matter if he lies about what he’s doing to you.

▪ Court notes that if Pl has adequately pleaded that docs did it to prevent working on the weekend, this might change outcome.

• Then, doctor would not have been acting within scope of job consented to, but for personal objective

• Neal v. Neal: Is there battery because wife wouldn’t have consented to sex if she knew husband was having affair? She consented to the essential contact/act, so I think no battery. (in reality, went other way—she only consented to sex with faithful husband—not majority rule)

o Sex itself didn’t cause the harm; the subsequent knowledge did. But RS states that Pl need not know of injury at time.

o Note: if you know you have an STD and don’t tell a partner, you can probably be liable for battery.

• **Difficulty with these cases is where we draw the line for what needs to be disclosed and what circumstances go to the essence of consent.

o Consent to illegal acts

▪ Majority view: RS§892

• Consent is effective in tort even though conduct consented to is a crime, UNLESS the conduct is made criminal to protect a certain group irrespective of their consent (e.g. stat rape)

▪ McNeil v. Mullin: Road rage, both parties wanted to fight

• Minority Rule: Consent to a fight is void (even though will prevent self-defense claim). Consent is a defense to civil injury, but not to breaches of the peace (i.e. an illegal, criminal act)

▪ Trespass

o To intentionally enter upon another’s land without consent, regardless of whether harm is caused (RS§158)

▪ Or to remain on land without consent

▪ Fails to remove from land that which he has duty to remove

▪ May cause someone/something else to enter onto the property

▪ Reasonably thinking you own the land or have consent is no defense (one of strictest torts)

o Intent

▪ Pegg v. Gray: neighbor lets his dogs loose and they chase foxes on Pl’s land, disrupting his herds. Court finds a claim for trial

• Rule: Generally, owners are not liable for the independent acts of their animals, but if an owner intentionally releases a dog for hunt, knowing (even constructively) it will go onto another’s land in pursuit, they can be liable for trespass (like constructive intent)

▪ Malouf v. Dallas Athletic: golf balls from Def’s range fly astray and damage Pl’s car on neighboring land.

• Holding: no trespass. No evidence that golfers intentionally caused the balls on enter on Pl’s property or to violate a property right—the flight of the balls was unintended consequences.

▪ Reconciling these cases: degree of certainty/constructive knowledge that the entry would occur? Courts weighing role of intent differently, as in battery, and even imputing a “constructive intent” at times.

▪ Minority rule: Val Alstyne v. Rochester: phone company workers enter to repair line (with permission) but accidentally/non-negligently caused lead droppings that dogs later eat and die.

• Holding: workers were given no right to leave things behind. Such an invasion makes them liable irrespective of intention. Intrusions on property are unique and are not afforded protections for unusual/unexpected consequences. Seems like strict liability here.

o Consent and Trespass

▪ Desnick, pg 28: Reporters pose as patients, pay and record their exams at eye clinic; sued for trespass. Defense of consent. Doc says he only consented to actual patients.

• Posner notes that in both trespass and battery, some tort claims will fail even though consent was procured by some sort of fraud/misrep. A restaurant critic posing as normal customer is not trespassing, but one who asks to enter your house pretending to be a meter-reader is; how to distinguish?

o Policy: there are certain kinds of misreps in regards to entering property that we want to happen (journalists, discrimination investigations, etc). Also don’t want to open floodgates.

• Determining liability has to do with the interest that the tort protects (inviolability of person, property, etc). A restaurant owner wants to have customers, but the homeowner does not want a non-utility person in their house. A woman seduced wants to have sex, but in false medical cases, that woman only wants a cure, not sex.

• Holding: here there was no violation that trespass seeks to protect. No invasion of private space, no eavesdropping, no interference w/possession of the land. Real issue was the filming, not an unauthorized entry into land.

▪ RS§168: a conditional consent to enter land creates privilege only for entry that complies with the condition. If you intentionally go outside the consent given, this is a trespass (counterarg to Desnick?)

o Intrusions under Mistake/Accidents

▪ As long as you intentionally enter onto property that is owned by another, there is no defense of reasonable mistake as to: consent, you thought you owned it, etc. (RS§164); unless that reasonable mistake was induced by conduct of the owner. p.34

• Note difference from battery, where reasonable mistake about consent is a defense. Or is it not that different?

▪ BUT if you don’t intentionally enter in the first place (trip and fall, e.g.) there is no trespass (§166)

▪ Conversion/Trespass to Chattels

o Conversion =

▪ (1) Intentional exercise of dominion or control over another’s chattel in a way inconsistent with the rights of the owner that

▪ (2) seriously interferes with the rights of possessor, to such an extent that they must pay full value of it

• Consider: extent and duration, good faith, intent to assert a right, harm done to chattel, inconvenience/expense, etc. (p. 43)

▪ Intentional destruction or material alteration of a chattel that changes its character can be a conversion

▪ For conversion you get $ value of chattel; you must bring suit for replevin if you want to object back

▪ Russell-Vaughn v. Rouse (p.44): car salesmen ask for customer’s keys and later say are lost and laugh at him (for an hour), he calls cops and then they say they were just kidding. L

• Rule: it is enough for conversion that the Def exercised dominion over the chattel in defiance of the right of the possessor (no need for Def to use it himself). No need for Pl to exhaust all possibilities for regaining possession (e.g. calling wife for keys).

▪ Spooner v. Manchester: Def rents horse, gets lost, takes detour and on way horse is injured. Ct: no conversion. Def at all times intended to return the horse and never intended to exercise dominion over it against rights of owner.

• Contractual relationship and his constant path to return the horse displace the intent to exercise dominion requirement. (also was initial consent)

▪ Wiseman v. Schaffer: impostor calls tow company, they tow car to yard where it is stolen. Owner never called/knew. Customary in industry to tow unattended vehicles based on phone authorization. L

• Def intentionally exercised dominion over another person’s property, which seriously interfered with owner’s rights (and was incidentally inconsistent with rights of possessor? Though Def never knew it). Didn’t matter that they never thought they were doing something wrong—classical requirements of rule are met.

o Rule v. standards args here

o Intent analysis varies btw this and Spooner. Contract issue?

▪ Replevin:

• O’Keefe: A thief does not acquire title to what he steals, so a innocent purchaser does not acquire title and can have no BFP status and is liable for conversion—“nemo dat” rule.

• Phelps: But where vendor intends to sell his goods to a person, title passes (“voidable title”) and later purchaser can be BFP, even if the sale was procured through fraud (impersonator pretended to have good credit rating for jewelry)

o I.e. in a sale procured through fraud, the vendor would have fraud claim against vendee (title “voidable”), but no conversion claim against later BFP

o Why different? Greater likelihood that a de-frauder will still be around to sue, but thief won’t?

• One who possesses property wrongfully still has right to possession against all others besides those with better title (may maintain replevin)

o Anderson: Presumption of title by possession is only rebuttable by one with better title (stands against another thief)

o Trespass to Chattel= intentionally dispossessing, using or intermeddling with a chattel possessed by another (RS§217-18). This is a lesser injury than conversion. To be liable you must show actual damage by:

▪ Dispossess another

▪ Impair condition of chattel

▪ Deprive possessor of use for substantial time

▪ Cause bodily harm to possessor

▪ Remedy: damages (not necessarily for full value of object)

▪ Compuserve: unauthorized use of server for spam is trespass to chattel. Actual injury/impairment caused is deprived legit customers from that server space; slowed server, etc. Unlike conversion, no need to show substantial interference with possessor’s right (server could still be used by company and customers the whole time)

• Note how the fact that server told them to stop was relevant (not applicable in other cases). Negates implied consent relationship or first amendment issues?

▪ False Imprisonment

o 1. Intent to confine the other person within boundaries fixed by the actor

o 2. Act directly or indirectly results in confinement

o 3. The other is conscious of confinement OR is harmed by it

o 4. Confinement must be complete

o Even if there is no intent, Def may be liable if harm is caused (not transitory confinement) (§35 p.56)

o Confinement is complete even if there is reasonable means of escape, unless the Pl knew of those means and they were reasonable (not simply “possible”)

▪ Excluding someone is not to keep them within fixed boundaries

o Boundaries may be actual or apparent (e.g. taking away crutches from cripple)

o Consent

▪ Peterson v. Sorlien: parents bring 21-year-old kid to house to deprogram. For first three days she begs to leave but afterwards becomes friendly and amenable for two more weeks—appears to consent to staying.

• Court finds that the cult undermined her ability to make informed consent for the first three days. Since she did eventually willingly remain in the house once her volitional capacity was regained, the parents are not liable.

• Rule: when parents act under belief that judgmental capacity of their adult child is impaired and seek to extricate her from what they believe is a cult, and the child at some juncture consents to their actions, there is no false imprisonment.

▪ Eliers v. Coy: distinguishes Peterson. Suit against deprogramming center, not parents. Adult kid was handcuffed, windows barred, forcibly restrained. “Pretended to consent” instead of reasonably appeared to consent.

▪ *Above two cases both technically meet the requirements of the tort, but courts find different results based on a consent theory.

o Mistaken arrests (p.59-60). States may have negligence standard or not for mistaken citizen arrests. Could be liability for one who intentionally gives false info with substantial certainty that false arrest to other party will occur.

▪ Baggett v. National Bank: Giving “good faith” details for police that leads to wrong arrest is NL.

• But if bank had given blatantly false factual info to the police, it could count as causing false imprisonment.

▪ Assault

o (1) Act intending to cause harmful/offensive contact OR to create an imminent apprehension of such contact

o (2) Other party is put in such imminent apprehension

o (3) The attempt must be known to the other party while occurring (§22)

o This tort covers unsuccessful batteries and putting someone in fear.

o Imminent Apprehension

▪ is sufficient if attempt at harmful contact is made and known, even if the other party wasn’t at all afraid and knew they could repel the harm (§24). Ex: scrawny person attempting to hit a boxing champion. As long as boxing champion was aware of the attempt, it’s assault. The “apprehension” is thus more technical than emotional.

▪ Apart from IIED, this a rare case of a curious mental impression being protected. Similar to crim law, motivation is to punish the wrongdoer for the attempt.

▪ But if Def points gun that Pl knows isn’t loaded, it wouldn’t assault since no imminent apprehension could be caused.

▪ If I say I’ll kill you later, it’s not assault

▪ Tuberville v. Savage: Def places hand on sword and says “If court wasn’t in session, I would strike you.”

• Holding: not an assault. Def explicitly stated that he intended NOT to harm the plaintiff. (so no imminent apprehension was created)

o Intent and Causation

▪ Bennight v. Western Auto: Manager required employee to work in area known to be infested with bats, despite her protests. She’s eventually bitten and suffers a bunch of harm. Jury finds that manager never intended to cause her to be bitten, but did intentionally require her to work in a known unsafe place. L.

• General rule for Intentional Torts: If you cause one intentional tort, you are liable for all consequences that follow, even unintended ones

• Intentionally (or substantial certainty?) placing Cathy in imminent apprehension of being attacked by bats was an assault, which manager did, since he knew that she didn’t want to work in the room. This intent and liability thus extends the specific injuries she sustained, even though manager didn’t intend those injuries.

o Similar to battery, you don’t have to intend the harm, you just have to intend to put them in the situation that you know will cause apprehension of harm.

o Note, this isn’t just a battery claim because no intent to ever cause a contact with her body.

o Newell v. Whitcher: while Pl is sleeping, Def enters her room and makes sexual solicitations, which she repels and asks him to leave. She then sits up for the rest of the night. Assault? NL

▪ All he did was ask if she wanted to have sex?

▪ Or would reasonable person would say his intentional acts would place a person in fear of an offensive/harmful contact.

▪ IIED

o Singer article

▪ “harms without injury” (legal redress)

o IIED is relative newcomer to torts scene, but courts used to have no problem tacking it on to some other intentional tort

o Requirements

▪ (1) Extreme and outrageous conduct that

▪ (2) Intentionally or recklessly

▪ (3) Causes severe emotional distress

• Severity may mean no reasonable person could endure it

• Note how, unlike most intentional torts, causation is written into the rule. Normally, if you commit the required intentional act, you’re liable for any consequential harm (not just intended or foreseeable; “eggshell Pl”; focus more on the act). Here, the conduct has to directly/specifically cause severe emotional distress

▪ Can also be liable for resulting bodily harm

o Can also create liability for distress in family member (no bodily harm required) or any other third party (but only if bodily harm caused)

o *NOTE: merely intending to cause emotional harm is not enough! The conduct must be such as to be considered outrageous to average community member

▪ That the Def knows of a particular vulnerability/susceptibility of the Pl is probative (poor health, superstition, etc)

o Relationship between parties

▪ Roberts v. Saylor: Doc and patient had legal dispute. Later, doc comes up to patient before his surgery with another doctor and says “I don’t like you.”

• Holding: NL. Liability is not created merely for hurting feelings. Conduct not outrageous enough. Freedom remains to express disagreeable opinions. Important distinction here was that when Def made comment, he wasn’t the patient’s doctor.

▪ Greer v. Medders: Doc says mean things to patient post-op while still recovering at hospital. Patient starts shaking and needs psych treatment.

• Holding: no SJ for doctor. In post-op situation, it could be found “sufficiently abusive”.

▪ Similarly, in landlord/tenant situation, a LL may be liable for lesser conduct because of the relationship

▪ Figueiredo-Torres v. Nickel (p.78): couple goes to shrink/marriage counselor who develops affair with wife, then proceeds to say degrading things to husband and encourage him to leave the marriage. L

• Shrink has special psychological relationship with patient and is in unique position to influence patient’s emotional well-being. This conduct might not be IIED from a stranger, but here, the Def was aware of patient’s emotional problems and took advantage of them.

o Susceptibility / Durability of Plaintiff (Thick v. Thin Skinned)

▪ Muratore v. M/S Scotia (p.76): cruise ship case

• Rule: the outrageous character of the conduct may arise from the actor’s knowledge that the other is particularly susceptible to emotional distress.

• L: Photogs had knowledge that Pl found the pictures particularly offensive and continued to taunt her. This creates the outrageous nature of the conduct, as well as the severity of the distress

▪ Pemberton v. Bethlehem Steel (p.77): Corp hires private investigator of union rep that finds out he was cheating and sends pictures of it to his wife. NL.

• Notes that information sent to wife was truthful

• Also notes that personality of victim must be considered in assessing outrageousness of conduct; here, he was “rough and tumble labor official” and should be able to withstand this kind of treatment

▪ Circumstances are important to nature of conduct too: cruise vs. labor dispute

o Amatory / Heart Balm suits: Courts do not typically assigned IIED liability simply for engaging in adultery or other such conduct.

o Public Figures (libel)

▪ Hustler v. Falwell: Rule: A public figure cannot recover for IIED without showing “actual malice”. Note how this rule attempts to prevent discretion in punishing political free speech.

o Przybyla v. Przybyla: wife has abortion without consent of husband and he sues for IIED. NL.

▪ Woman has a privilege vis a vis the state to get an abortion—state has a no-right to use its power to stop her. (not a right, because she can’t call upon power of the state to compel someone to give her an abortion?)

• Court seems to be expanding the no-right to the husband, too—doesn’t seem to follow directly from the logic.

• To assign IIED liability would be to say that wife is required to get husband’s consent for abortion, which court refuses to do (would give husband a right to stop her, which makes totally ineffective a granted privilege—so maybe is consistent with Hohfeld’s defn of privilege?).

▪ Perhaps court could just say an abortion isn’t outrageous enough.

DEFENSES

▪ DEFENSE: Defense of Person or Property

o An affirmative defense that excuses an intentional tort is called a “privilege”

o Like in criminal law, the defense typically involves an inquiry into the

▪ (1) necessity of the force, or the actor’s reasonable belief of its necessity,

▪ (2) proportionality of the force used

o Katko v. Briney (p.85): After repeated robberies, Defs set spring gun with no warning posted. Robber’s leg is blown off and he sues.

▪ Rule: An owner is prohibited from intentionally injuring a trespasser by means of force that either takes life or inflicts great bodily injury, unless the trespasser is committing a felony of violence or is endangering human life.

• He therefore cannot install a mechanical device that will inflict great bodily harm when it wouldn’t be warranted by the owner under self-defense were he present. When present, the owner could only use force reasonably necessary to repel the trespass/theft—only harm or theft of property is not reason enough to use deadly force.

• Issue is proportionality: wouldn’t matter if there was a warning sign. For mere threat to property, you cannot inflict great bodily harm.

• Also, spring guns are just disfavored—could pose threat to innocent party

o Mistaken Identity

▪ Crabtree v. Dawson: Def hits Pl thinking he was other guy coming to harm him.

• Rule: A reasonable mistake is a defense, if

o Def reasonably believed the Pl was the other guy and

o Reasonably believed that he needed to strike the intruder to protect from an attack and

o The force he used was of a reasonably necessary level

• Though, it was duty of Def to exercise highest level of practicable care to ascertain identity of the guy he struck

o Wright v. Haffke: Robbers push down storeowner and then reach into cash register and turn to leave. Owner shoots one in the back.

▪ Rule: A person is allowed to use force to defend against robbery. Inquiry is whether force was within reasonable limits and was reasonably necessary. For the felony of robbery, the owner may use whatever means lay within his power to resist, including a firearm.

• But you typically can’t use harmful force to repel petty theft (would violate proportionality)

▪ Compare to Katko: Here, it was defense of property, but deadly force was found justifiable. Consistent?

• Here, there was assault on person, too.

• Owner was present; not just device that would shoot anyone.

• Sense that there was nothing else owner could do; but isn’t that the function of criminal justice system?

o Woodbridge v. Marks: Def keeps two vicious watchdogs tied up. A trespasser looking for someone enters property, strays from path and is injured by one.

▪ Rule: the mere keeping of ferocious watchdog is not unlawful. The manner of his confinement and surrounding circumstances must be considered in determining owner’s liability (here they were confined and couldn’t reach the walkway). Policy: want ppl to keep watchdogs.

▪ Compare to Katko: dog is different from spring gun. Dog will generally serve to deter trespassers, primary function is not to automatically injure them as a spring gun does. Trespasser generally also can see/hear the dog and has notice of it.

o Shooting of intruding animals:

▪ Hull v. Scruggs: Court upholds Def’s shooting of a dog who has for three weeks come onto his property and sucked all his eggs (but shot him not while dog was actually engaged in eating eggs)

• Court notes that shooter first took the precautions of notifying owner, trying to catch the dog and making reasonable efforts to drive him away..

o “At my wit’s end” did not work in Katko because the harm was caused to person; here it works because just a dog.

• The shooting needed not have been while he was sucking an egg, if the incidents had been going on for so long and nothing else worked.

• *General rule: if valuable livestock comes onto your property, you’re supposed to detain it. Here, the court reasons that a dog who likes sucking eggs will never stop, warranting the shooting

▪ Comparative value:

• Kershaw v. McKown: Def shoots dog who attacked his goats. Court rules that if jury finds that the goat was more valuable than the dog, and if a reasonable man would have concluded he needed to kill the dog, there is no liability.

o Single owner theory for liability: if single owner owned both the dog and the goat and had to choose, they would have chosen the less valuable (so Def’s actions justified)

o Some states, though, reject assessing the value of the livestock and look only to the reasonableness, etc.

o these cases are more reasoned about property-vs-property, rather than any life.

o Cost-effective theory of liability, like B>PL

▪ DEFENSE: Private Necessity

o Typically a defense to trespass: an entry to prevent bodily harm or harm to goods is NL.

o Look at

▪ (1) proportions/comparative value (lesser of two evils or two values) and

▪ (2) urgency/ unpredictability

▪ (3) damage resulting to Pl’s property (Vincent)

o Probably no reasonable mistake in private necessity? (since only acting in self-interest)

o Ploof v. Putnam (p.97): Pl moors his boat to Def’s dock because of sudden storm; Def unmoors and causes damage to boat and injuries to the family. *Note: the actual tort he’s suing for seems unclear; shows that necessity “defense” can itself be like a cause of action if a person prevents you from doing what you had necessity to do.

▪ Rule: an entry onto land to prevent bodily harm or to save goods in danger of being destroyed will not be held a trespass.

o The necessity defense can apply where property is at stake.

• Also, damage to another’s personal property to save a life is not actionable.

• Assuming Pl had this necessity privilege, Def will be liable for damage caused by unmooring the boat.

• Proportionality: no damage was being caused by the moored boat, so owner seems unjustified in unmooring it and causing lots of damage to person and property.

o Comparative value assessment, like B>PL negligence regime

o Rossi v. DelDuca: girls are running away from a dog, run onto another’s property where they are bitten by that person’s dog.

▪ Rule: One is privileged to enter another’s land if it reasonably appears necessary to prevent serious harm to body or property. This necessity also destroys the possessor’s immunity from liability for resisting the intrusion.

• Thus, the general rule that owner is not liable for dog’s harm if done to a trespasser does not apply.

▪ Compare to Woodbridge (NL for injuries from dog): inconsistent? If you keep dogs and don’t build fence to keep people out, then you accept potential liability for injuries to people with necessity privileges?

o Vincent v. Lake Erie Trans: Def has parked his boat on Pl’s dock. Bad storm where it would have been imprudent to try moving the boat. Def replaces the ropes throughout the night to keep boat tied to dock; damages dock and Pl sues.

▪ Rule: Given circs, no duty of Def to move the boat and any injury caused only by storm would be act of God and no liability. BUT, since Def willfully replaced the ropes and held the boat in a position that damaged the dock (boat was put under his control during the storm), he is liable for the damage caused. Court thinks this same rule would apply to Ploof if the boat had caused damage.

• Note: this implies that if Def had just used stronger ropes in the first place, and had never replaced them, there would be no liability.

• But here, Def actively made the assessment that his boat was worth causing damages to the dock, which was good assessment, but he still has to be responsible for the outcome.

• Transaction theory: Ct is letting Pl “sell” his dock where there wasn’t time for parties to negotiate.

• Single owner theory: treat dock and boat as owned by the party who makes a choice about damaging one of them. That party should then have to pay for that damage, since we assume that if he’d owned both, he would have made same cost-benefit analysis.

o So same behavioral outcome as Kershaw. By treating everything as having same owner, we encourage behavior that is most cost-efficient and looks to comparative value.

o This is like an SL regime.

▪ Perhaps making boat owner liable it encourages him to park his boat in safe places where damage won’t be caused.

o Texas Midland v. Geraldon (1910): liability for train station who kicks out waiting passengers at closing time into the rain. Wife was sick and in walking short distance to guest house she gets sicker. Assuming station employee knew Pl was in weak health and that rain was such as it would likely cause injury, they are liable.

o Borough of Southwark v. Williams: homeless squatters cannot use necessity defense to trespass charge. Just as theft is not excused just because you’re starving.

▪ Would open floodgates to unlimited intrusions on property.

▪ Also, disrupts administrative allocation of resources.

▪ Consistent with Texas Midland?

• Midland seems a more singular case, whereas this case speaks to entire homeless population.

• Transaction theory: law should step in and find efficient solution where it was impossible for the parties themselves to contract out of the specific situation (in Midland, the immediacy of the situation made it unlikely that the parties could come to an agreement; whereas in Williams, people without homes are expected to contract out of their situation by renting).

• Also, unpredictability or pre-existing nature of the problem causing the necessity (spur of the moment vs. systemic homelessness)

▪ Public Necessity

o Rule: if you’re trying to prevent public disaster, you’re not responsible for damage to personal property

o Mouse’s Case: ferryman overloaded a boat. Storm hit and a passenger threw one of the caskets overboard to save the other passengers from being drowned.

▪ Rule: the passenger was privileged by necessity to throw the casket overboard to save the lives of all the passengers.

▪ Here, human intervention was warranted to prevent act of God, in order to save human life (in Vincent the Def was liable for $ because it was only property he saved)

o Struve v. Droge: Def landlord breaks into Pl’s apartment because he thinks there is a fire, but there wasn’t. Damage was caused and Pl sued.

▪ Rule: LL would be justified by public necessity BUT must show that damage would have actually occurred if he hadn’t broken into the apartment (i.e. necessity must be real, not just reasonable mistake)

• You act at your own peril

▪ Inconsistent with RS §262 (p.109): includes language “reasonably believes to be necessary to avoid public disaster”. We don’t want to discourage ppl from acting to prevent disaster.

o Eminent Domain

▪ When public necessity is used by the government, ppl may claim right to compensation under eminent domain. Some courts accept this theory

• Wegner: innocent homeowner should be compensated when police damage his property for the public good

o Theory here is that when police act for the public good, they should pay for it, because this cost will then be distributed amongst the actual public, which doesn’t happen with private people

• and some don’t (reasoning it as use of police power, rather than eminent domain)

▪ Discipline

o CL provided certain limited privileges for private corporal punishment (teachers, parents, etc)

o Forbes v. Parsons (p.111)

▪ Opposite: Congress has outlawed this privilege onboard ships.

o Wife Beating (p. 117-120)

NEGLIGENCE

▪ Four Elements to Unintentional Torts

o 1. Duty of care

o 2. Breach of that duty

o 3. Causation

o 4. Damages

Breach of a duty of care: to be liable for an unintentional tort you must violate some standard of conduct/care.

Look at :

(1) Reasonable person standard

(2) Foreseeability of Harm and Reasonable Precautions (Hand formula)

*In Negligence, “no liability without fault” guides the analysis

▪ The Reasonable Person

o RS §283: Unless the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like circumstances

o Think about timeframing and if/when a choice was made that was not reasonable

o Williams v. Hays (p.122): ship captain / exhaustion / malaria drug

▪ General rule: insanity not a defense to a negligence claim. “As between two innocents” (policy considerations for the insane).

▪ Impossibility Defense: But if the defendant only went “insane” because of his efforts to save the ship—mental and physical exhaustion—then we cannot hold him negligent. It was then impossible for a reasonable man to do more and the result couldn’t be helped.

• Timeframing: court looks not just at the negligent moment of refusing help, but of the entire course of events that might have caused his actions.

o Also note that onboard a ship, he couldn’t leave the situation.

o Vaughan v. Menlove: Def has a haystack on property. Neighbor warns him its fire hazard but Def says he’ll take his chances.

▪ Def’s subjective intelligence irrelevant; the standard of conduct has always been that of a “man of ordinary prudence”.

o EXCEPTION: Lynch v. Rosenthal: Def instructs mentally retarded Pl farm hand (who lives in his care) to work close to the picker and doesn’t warm him of the danger. Pl gets too close and injures his arm. Def argues that Pl was contributorily negligent.

▪ Medical evidence suggested that the Pl was incapable of understanding the danger of the machine but was capable of following instructions. Def failed to give him any warning and instructed him to walk in a dangerous place. Contributory negligence was for jury to determine.

• The whole allegation of negligence against the Def was that he didn’t give the needed warning to a known low-functioning person, so the court feels justified in setting aside the normal rule that mental capacity does not affect reasonable person standard.

▪ Compare to Vaughan: Fact that Pl here was not just stupid, but actually medically low-functioning? Also, the fact that Def was responsible for his care, knew of his condition, and instructed him to enter the dangerous situation.

o Physical Infirmities

▪ *Tort law makes a distinction between mental (no defense/individuation) and physical infirmities (defense/individuation of standard)

• Easier to draw lines between most physical infirmities, easier to prove exactly what their capabilities are—you could see the hole or your couldn’t; there isn’t some hazy inquiry into how your mind processes risk.

▪ Kerr v. Connecticut: Deaf guy walking too close to train tracks and doesn’t hear driver honking. Driver can’t stop in time and kills him.

• Holding: Pl was contributorily negligent as a matter of law. He had duty to take such care as reasonable deaf person would, but instead he knowingly walked in a dangerous place and took no precautions to look out for trains when he knew his hearing was impaired.

▪ Davis v. Feinstein: blind guy walking down the street with cane falls into open cellar. Trial court finds No contributory negligence, appellate affirms.

• Rule: Pl must use due care under the circumstances (here, being blind). Such care includes reasonable effort to walk with artificial aides (like cane). Beyond that, it’s a jury question whether such effort was reasonable.

o Standard: “reasonable blind person”

▪ Timeframing: looking at the entire series of events to see if a negligent choice was actually made within the circumstances.

• We can’t ask a blind person never to walk on the street, as long as he does so with reasonable care, so his act was not negligent. If he had decided to drive a car, it would be different. With Kerr, as a deaf person he made a negligent choice to walk near the tracks.

o Age

▪ Minors have an individuated standard of care, subject to some exceptions.

▪ Purtle v. Shelton (p.134): two 17 year olds hunting, one shoots other.

• If adult did the act, it would probably be negligence.

• Rule: if a minor is to be held to an adult standard care he must be engaging in activity that is

o Dangerous to others

o Normally engaged in only by adults

• Court doesn’t thing hunting with guns falls into this category, so minor is held to standard of minor of his age/intelligence in the circumstances.

• Distinguish: where driving car on highway, minor is held to adult standard because (a) must be 16 to drive, (b) must pass exam, (c) statutory laws don’t distinguish by age

▪ Roberts v. Ring (p.137): kid runs into street and is hit by old guy driving his car.

• Rule: Had an adult acted as the boy did, he might be chargeable with contrib. negligence. But the standard of care for kid is the degree of care commonly exercised by the average boy of his age/maturity.

o Old man’s infirmities, however, do not relieve him from reasonable man standard of care. To the extent that they should be considered, it should only be evidence of why he shouldn’t have been driving in the first place.

▪ Dunn v. Teti (p. 139)

• Rule: under 7 you can’t be charged with negligence; 7-14 you are presumed incapable of negligence, but it’s rebuttable; over 14 you are presumptively capable of negligence.

▪ Risks and Precautions / Hand Formula

o RS§3: Negligence

▪ A person acts with negligence if they do not exercise reasonable care under the circumstances. Factors to consider are foreseeable likelihood that conduct will result in harm, foreseeable severity of the harm, and burden of implementing precautions

o US v. Carroll Towing (p.140): issue is whether boat owners were contributorily negligent because their bargee was not onboard boat when damage caused. If they were negligent they’ll only get 2/3 of the damages they are owed (comparative negligence).

▪ Hand Test: the standard of precaution required (i.e. reasonable man standard) to prevent negligence should be calculated based on:

• B < P*L means you were negligent in not taking the precaution

o P = the probably of accident without precaution

o L = the amount of loss that would occur without the precaution.

o B = cost of the burden of taking the precaution

▪ Hand doesn’t actually plug in values to the equation, but it drives his analysis that having a bargee on board would have been pretty easy and could have avoided lots of damage.

• Causation: while the company untied and retied the boat incorrectly, the fact that the bargee was absent when the accident happened also contributed to the amount of damage caused.

o *Note how Hand test shows how foreseeability of harm is a factor in assessing negligence (P), as opposed to intentional torts

o **cases in book don’t really discuss this the way Roin does. We basically want to look at the comparison between what we stand to save by implementing the precaution versus what the precaution would cost.

▪ This seem a little ironic because if we do this test and decide the precaution wasn’t cost-efficient so the company isn’t negligent in not taking it, then we wouldn’t make the company pay damages (whereas the formula indicates that they decided they would rather pay damages than pay for the precaution)

o Value of P: do we consider the probability of this specific accident or the entire universe of possible accidents?

▪ Logically, it should be the latter, but in reality, on ex-post evaluation, courts tend to consider the former because it’s too complicated to estimate the probability of all possible harms (see e.g., shark bite case)

o The Hand test is not given to juries, but is sometimes used in appellate review and arguably informs any assessment of liability for negligence.

o Note that Hand test does not just measure whether the precaution was more efficient than doing nothing, but also whether one precaution was cost-justified as compared to other

▪ See n.4 on pg 147: marginal benefit of one precaution versus another is not worth it, though it seems worth it if you look at each precaution isolated by itself.

o Benefits of Hand Test:

▪ Encourages efficient investments in safety and risk reduction

▪ Accords with moral intuitions that a person is more culpable if they didn’t take an easy precaution

EXAMPLES:

o Adams v. Bullock: kid injures himself swinging a long wire that goes over a bridge parapet and down several feet where a trolley wire is hanging. Sues trolley company; NL.

▪ Trolley had duty to adopt all reasonable precautions to minimize resulting peril. Here, accident was so unforeseeable that we can’t expect them to have taken additional precautions than those of placing the wire where no person could reach it.

• P was so low that we can’t expect trolley company to have reasonably considered it

• Additional guards are of little value and putting the wires underground would have been unreasonable for the small risk of such a freak occurrence (B too high)

• You can see how court is implicitly doing a Hand cost-benefit analysis, though frames it more in terms of reasonable assessments.

o Bolton v. Stone: Pl hit by cricket ball that goes over fence from neighboring cricket grounds.

▪ Rule: the test to be applied is whether the risk of damage to a person on the road was so small that a reasonable man in their position, considering the matter from the point of view of safety, would have thought it right to refrain from additional steps.

• Risks are inherent in modern life. We can only expect reasonable people to refrain from doing things that he knows will create substantial risks

▪ BUT court doesn’t think the cost of such precautions should be factored (B). If P*L creates a substantial risk, cricket shouldn’t be played at all.

o Eckert v. LIRR (p.148): Pl dies saving child from oncoming train going too fast. RR argues he was contributorily negligent.

▪ Rule: The law has so high a regard for human life that it will not impute negligence to an effort to preserve it, unless made under such circumstances as to constitute reckless judgment. Pl had duty to exercise his judgment as to whether he could probably save the kid without serious injury to himself. If he believed he could, he was not negligent. (BPL), but is backward looking, which seems unfair.

▪ CUSTOM and Medical Malpractice

o Customary practices outside of medical context:

▪ *Majority Rule: Customary practice is typically probative of the reasonable standard of care, but not conclusive either way (esp. where precaution was easy or conduct was inherently dangerous)

▪ The TJ Hooper (p.158): Court finds tugboat company liable for not providing working radios to workers, even though that wasn’t the general practice in the industry—some did, some didn’t.

• Rule: There are some precautions so imperative that even their universal disregard will not excuse their omission.

• Radios are so cheap and risk so large, it’s not unreasonable to expect companies to do it from common sense. (Hand-type analysis)

▪ Ellis v. Louisville: employee gets sick from inhaling sand and sues company for negligence in not providing mask.

• Rule: one is not considered negligent for acts which conform to a common practice that has existed for years without resulting in injury and that doesn’t reflect a lack of due care. Test for negligence is ordinary usage and custom of mankind

• Distinguish from Hooper: Here, no one in the industry used masks. Medical knowledge at time was very limited w/r/t inhaling dust.

▪ MacDougal v. Penn Power: power box placed in unsafe location

• Rule: common usage is not applicable when the conduct in question is inherently dangerous. High degree of danger requires high degree of care. Where the custom is unreasonable in light of risk, law doesn’t wait.

▪ Rodi Yachts: Posner contract analysis

• Rule: where the relation between the parties is governed by contract, industry custom will reflect the determination made by market forces and the parties as to where risk should be allocated (what standard of care should be), what customers are willing to pay for, etc.

o Basically, if parties are in K, industry custom should indicate standard of care

o Where not governed by express or implied K, it’s fair to impose costs on industry for risky practices, because it will improve the industry’s safety.

o Posner extends this rule here since the two parties weren’t directly in contract, but he argues that since they both had contractual relations with their respective customers that determined their safety practices, they were “knitted together” by market incentives to adopt optimal safety precautions.

o Medical cases

▪ In medical cases, compliance with customary practice is decisive, not just evidentiary. Thus, issue becomes, whose “custom” do we apply?

• We need to use the standard of average doctor.

▪ *Most courts use national standard of care, though some rural courts will apply a “modified locality rule” that takes account of the standard of care for doctors in similar localities, with similar resources.

• Policy: don’t want to discourage docs from working in rural or poor areas where access to medical advances is slower. And we don’t want to require doctors in those downs to take excessive precautions/insurance that will drive up the cost of care beyond what people in the town can afford.

o But are we therefore encouraging/perpetuating poor standards of medical care in poor areas?

• Economic argument: doctors in rural towns might be giving optimal care under Hand cost/benefit analysis for that locality’s needs and resources, but if we hold them to national standard of care, they will have to inefficiently take out tons of insurance and drive costs up.

▪ Brune v. Belinkoff (p.164): Doctor administers dosage of drug that was customary in that small town, but contrary to more current industry standards.

• Court rejects locality rule. We should hold New Bedford docs accountable for the standard of care of the (nationally) average qualified practitioner. We may, however, consider resources available to the doctor.

• Notes that New Bedford was only 50 miles from Boston, a “medical center of the nation.”

▪ Gambill v. Stroud: (AK): Modified locality rule: standard of care is “similar practice in similar localities”—similarity from standpoint of medical facilities, practices and advantages.

▪ Johnson v. Wills Memorial: Hospital, not doctor, was sued for the fact that a patient escaped out the window. Where issue is not a medical function, but a service determined by location and resources, the locality rule is appropriate.

▪ Disclosure of risk:

• Here, doctors cannot use custom as excuse, but must disclose all “material risks” to patients (those neither so obvious nor so rare to not be disclosed)

o Lawyers

▪ Standard is set by customary behavior of the relevant community

▪ Cook v. Irion:

• Rule: the way you practice law is affected by the community in which you practice, especially with respect to local juries. Locality rule should apply.

o Typically, locality rule is more persuasive for lawyers than doctors.

▪ Violation of Criminal Statutes and Per Se Negligence

o Negligence Per Se = party has violated some sort of rule, statutory or judge-made, and that violation establishes his negligence as a matter of law (not for jury to determine)

▪ Basic rule is that violation of a criminal statute creates negligence per se, so that issue doesn’t go to the jury

▪ Difficulty arises when a criminal statute does not make clear if a party should be able to sue for damages for its violation.

▪ Some general exceptions, where per se will not be created by the violation, and negligence issue must go to jury:

• 1. injury must be one that statute was designed to prevent (Tingle)

• 2. Pl must be in class of people that statute was designed to protect (Selga)

• 3. Reasonable deviations allowed when compliance with the statute would have been dangerous (Tedla)

• 4. If you didn’t know you needed to take action to comply with the statute (headlight burns out, e.g.), no liability

• 5. Whether legislature intended to create per se rule.

o RS§286: General Rule: A statute creates a standard of conduct w/r/t injuries the statute was designed to address, but not to other incidental injuries (though statute may be relevant evidence of standard of care)

o Martin v. Herzog (p.170): Pl driving buggy without lights, Def not driving on right side of the road (both violations of statutes). Issue: was Pl’s driving without lights in violation of the statute contributory negligence per se?

▪ Rule: To violate the safeguard prescribed by law is to fall short of the required standard of diligence and is prima facie evidence of per se negligence. (BUT, to be per se negligent in such a case, the breaking of the law must have been at least a contributing cause of the injury).

• Also, violating party can attempt to show that compliance with the statute was not necessary (other lights on highway made headlights unnecessary, e.g.)

o Tedla v. Ellman: Car hits pedestrians. Statute says pedestrians must walk on L side of road; they were walking on R. But, they offered evidence that they walked on the R because traffic was much lighter and it was safer.

▪ Rule: a statute establishes a general duty of care but reasonable deviations from it with good cause will rebut per se negligence and the issue goes to the jury. Where a statute is calculated to promote public safety then it should not be interpreted as requiring strict compliance where that would defeat the whole purpose.

o Tingle v. Chicago: law says trains can’t run on Sundays; one does and kills Pl’s cow. Court holds that since operation of the train wasn’t negligent, the breaking of the statute does not itself create liability, since statute wasn’t designed for that purpose

o White v. Levarn: Pl and Def were hunting together. Pl shot by Def and sues because statute banned shooting firearms on Sundays.

▪ Rule: contributory negligence not a defense to injury caused by the breaking of statute?

o Selger v. Steven Brothers: Pl slips on dog poop outside store. City has ordinance requiring business owner to keep sidewalk clean.

▪ General Rule: statutes requiring landowners to maintain sidewalks are interpreted to create liability to the city, but not to pedestrians. Pl must be in the class of people that statute was designed to protect.

o Ignorance of the Law?

▪ RS§288A

• Where actor neither knows nor should know of any occasion or necessity for action in compliance with the statute, her violation of it will ordinarily not create per se negligence (can go to jury).

• (Illustration is of driving and not knowing your headlight went out)

▪ Sparkman v. Maxwell: lady is turning left and thinks red arrow means she can. First time such an arrow signal used in that state. Prob issue for jury.

▪ Velsey v. Sager:

• presumption of negligence for bartender who served to intoxicated man who later was injured in crash (statute against serving drunk people)

• Legislature overrules this decision: enacts statute saying seller of alcohol will not have civil liability to victims of consumer’s intoxication. Drinking is the cause of such injuries, not the serving.

o S.Ct upholds as constitutional: rational basis and reasonably related to legitimate state purposes.

▪ Brown v. Shyne

• Majority interprets statute banning practicing medicine without a license to be for purpose of preventing carelessness or lack of skill. Thus, Pl must show that doctor was actually showed carelessness or lack of skill to establish liability; breaking of statue itself not per se negligence.

• Dissent: Statute designed to prevent carelessness. A man who violates the statute should not complain if his violation is deemed evidence of his carelessness!

▪ Res Ipsa Loquitur

o (1) An accident seems obviously the result of Def’s negligence,

o (2) it probably wouldn’t have occurred unless there was negligence, and

o (3) the defendant had exclusive control over the thing that caused the harm

o = “the thing speaks for itself”

▪ Key issue is usually whether the accident was likely to occur without negligence.

• Def will typically assert that “these things just sometimes happen, even with due care.” Cases hinge on whether or not court agrees.

• Courts are sometimes concerned that if they don’t apply RIL where evidence of negligence not available, it will create a pocket of immunity for defendant in such cases.

▪ Burden Shifting Rule = Creates a rebuttable presumption of negligence that the Def has burden of disproving if he wants to win.

▪ Evidence considerations: Note distinctions between where argument is that Def has better access to the information of the cause of the accident vs. considerations where no evidence is available at all.

▪ These cases show how courts are saying that in some cases, we’re willing to admit that a certain number of injuries will occur with optimal precautions. In RIL cases, court is implying that in such circumstances we think such accidents should never occur if reasonable precautions were taken.

o Inverse Fallacy:

▪ Tendency to treat probability of a hypothesis given the evidence as the same as the probability of the evidence given the hypothesis.

▪ Even if an event does not ordinarily occur when negligence is absent, the event still may be more likely to be the product of non-negligence than negligence.

▪ *Where RIL not applied, it doesn’t mean that Pl can’t still prove negligence at trial, it just doesn’t furnish a presumption in the absence of evidence.

o Byrne v. Boadle (p.190): barrel of flour falls from window of Def’s warehouse onto Pl. Court approves RIL.

▪ Court: A barrel could not roll out of a warehouse without some negligence. It would be ridiculous to make Pl have to prove it.

• Burden is on Def to disprove negligence.

▪ Note two considerations for use of res ipsa loquitur doctrine:

• (1) the event very likely resulted from negligence

• (2) too difficult for Pl to prove exactly how accident occurred.

o Hunsberger: workman rebuilding boiler room. One of them is hammering and a wedge slips and falls onto Pl’s head. Court holds that there is insufficient evidence for RIL.

▪ Rule: The mere fall of a tool used in construction cannot be presumed to be the result of negligence because it cannot be supposed that it’s probably the result of negligence every time it occurs—falling tools still happen with reasonable care.

o Larson v. St. Francis Hotel: Pl is hit on the head from an armchair that gets thrown out a hotel window. Court dismissed (no RIL).

▪ Test for RIL:

• (1) an accident occurred

• (2) the thing that caused the accident was under Def’s exclusive control

• (3) the accident was such that it would not occur in cases of ordinary care—would likely not occur unless there was negligence.

▪ Chair was not in hotel’s exclusive control. It’s just as likely that a guest threw the chair. Unreasonable to expect a hotel to put a guard in every room to monitor how guests use furniture (B>PL).

o Brauner v. Peterson: Def owns two story building where they sell goods on first floor and livestock on second. Steer falls through the ceiling onto Pl’s head.

▪ RIL: Under Def’s exclusive control and would not have occurred without negligence

o Wilson v. Stillwill: Pl has surgery and gets infection. Infection rate at that hospital very low, so he argues that this shows that infection was likely the result of negligence.

▪ Rule: The mere occurrence of an infection does not give a presumption of negligence. Infections happen all the time not from negligence, even if they themselves are rare.

o Judson v. Giant Powder Co.: dynamite factory explodes and damages Pl’s property. No evidence of why. Def argues Pl assumed the risk by renting them the land knowing of the danger. Court rejects this argument and approved RIL

▪ In the ordinary course of things an explosion does not occur in the manufacture of dynamite if ordinary care is used. Probable cause was lack of proper care.

▪ Policy: if we don’t apply RIL in such a case, then every time dynamite explodes and there’s no explanation, the defendant would get a pass (would create pocket of immunity).

• Similar to applying strict liability to Def.

• By putting liability on Def for engaging in really dangerous activities, we imply that he is assuming the risk for doing those activities, even if he does them without actual negligence.

▪ Activity analysis: even if there’s no evidence of negligence, court’s application of RIL can imply that they are saying that this activity just shouldn’t be engaged in in this way. I.e. don’t build dynamite factories in the city.

o Haasman v. Pacific Alaska: Plane disappears with no explanation. RIL approved.

▪ Rule: RIL cannot apply where Pl and Def have equal knowledge of the events. This does not apply, however, where both parties have equality of ignorance, since ignorance of cause is itself a reason for applying the doctrine

▪ Where we have no evidence of cause, but negligence more likely than not, we should put burden on Def.

o Walston v. Lambersten: Boat disappears on calm seas. Dispute at court over whether boat was unseaworthy, but Def rebuts and trial judge finds that it was not.

▪ Rule: if Pl establishes a boat was unseaworthy, court will then presume that this was proximate cause of the sinking. But mere disappearance alone will not furnish entire presumption of negligence.

• Sea is dangerous despite due care, and liability should not be lightly inferred.

• Concern is pocket of automatic liability when evidence is not available (Ct is worried more about latter since there is high likelihood that this accident would happen without negligence)

o RIL and Compliance Errors (Grady), p. 205

▪ Where safety technology is really advanced, probability for compliance error is a lot higher (i.e. if accident still occurred despite all the safety measures, someone must have screwed up).

• RIL case is strongest where expected rate of compliance error is high relative to the normal rate of unavoidable accidents. Thus, incidents of high safety tech ironically furnish the best cases.

o The safer we make things, the more likely that accidents are caused by negligence.

• Author thinks this is ok, since purpose of negligence is to regulate compliance errors in the use of technology

o Cases involving Multiple Potential Defendants

▪ Ybarra v. Spangard p.206: Pl has appendectomy and later shows injuries to his arm. Many various doctors, consultants and nurses involved in the procedure, some employed by others or by hospital. Pl sues all of them for negligence under RIL.

• Def argues that there’s no way to tell who was responsible or what instrument caused the injury.

• Policy: policy behind RIL is to place the burden of disproving negligence on the defendant, where the defendant has access to information about the accident that the Pl does not. An unconscious patient is prime example. If we did not apply it in this case, patients like this would have no remedy for negligence unless someone confessed. We need to encourage someone to tattle tale.

o Court also notes that it’s better to use RIL than strict liability for all accidents occurring during surgery.

• Test:

o (1) Pl didn’t himself cause injury (unconscious)

o (2) Accident was one that does not ordinarily occur with due care (totally different part of body from operation)

o (3) Accident caused by an instrument under Def’s control:

▪ Number or relationship of defendants doesn’t matter

▪ Every def under whose custody the patient was placed had to exercise due care

▪ They should carry the burden of explaining what happened

▪ Showing an injury resulting from external force while unconscious is enough (no need to attribute to specific instrument)

• Holding: where Pl receives unusual injuries while unconscious during medical treatment, all those who had any control over his body or instruments used that might have caused the injury may properly be presumed negligent and must have burden of disproving. (joint/several liability)

o This is minority position.

• On remand, everyone testified that they didn’t know what happened, trial judge said he thought they were honest, but still applied RIL for liability to all.

▪ Majority Rule: Wolf v. American Tract: Brick falls on Pl’s head from building construction. Many contractors at site, but he chooses two to sue.

• Rule: where there are numerous contractors, each independent of each other and none subject to the others’ control, some proof must be given to identify the author of the accident. Otherwise no reason to hold one or another liable under RIL.

o In cases like this where injury cannot be attributed, it’s more just for it to go uncompensated than to hold innocent people liable

▪ Actiesselskabet Ingrid v. Central RR: RR car with dynamite explodes. Lots of different parties involved.

• Could have been caused by RR, powder company, movers.

• Rule: Where there are multiple possible causes of the accident and any one theory is almost as probable as another, no RIL.

▪ Joint Control: Bond v. Otis: Elevator plummets. Otis installed and maintained. Bond owned building. Contract between them said that Bond was assuming sole ownership and control of elevator.

• Court: elevator was under joint control, since Otis still did the maintenance. RIL approved for both (joint/several).

• Rule: No need in RIL for instrumentality causing the injury to be under exclusive control of a single entity

o Does this only apply where multiple Defs can be said to have had control at same time, rather than separately? K also probative.

STRICT LIABILITY

▪ *You still need to establish causation, damages. Duty is pretty much always just implied in the types of activities these cases involve. You couldn’t talk about SL being a breach of duty without assuming there was a duty in the first place.

▪ Basic Categories of SL:

o (1) Animals ( wild or tame but known ferocious

o (2) Damage to neighboring property

o (3) Inherently Dangerous activities

o (4) Respondeat Superior

▪ Strict liability usually operates at an activity level analysis; unusual in that it’s not about fault, but about who should pay or who we think should alter their activity = “as between two innocents”, as opposed to default “no liability without fault”

o Note that strict liability creates the same results if we said that just doing the activity was per se negligent (because in that case there would have to be damages to create liability, so result would be the same)( just different ways of thinking doctrinally: per se negligence says don’t do the activity at all, SL implies you just have to internalize costs or do the activity in a certain way (less, in another place, or not at all)

▪ Many times, the behavioral outcome will be the same under negligence or SL regime( party will still make the cost-effective choice, either because that will prevent him from being negligent under Hand test, or because under SL, he’s decided that doing the activity is still more cost-effective. So why the distinction?

o Based on who we want to incentivize to take precautions (or do discourage from doing activity at all)

o **Where only unilateral precautions are possible, good case for SL.**

▪ Liability for Animals

o Behrens v. Bertram Circus p.394: Elephant at circus is frightened by dog (that wasn’t supposed to be there) and tramples dog and booth and injures some midgets.

▪ Rule: a person who keeps an animal with knowledge of its propensity to do harm is strictly liable for any damage it causes. For wild animals (ferae naturae) this knowledge will be assumed. For tame or domesticated animals, the knowledge requires proof that a vicious tendency was demonstrated to owner, and the act must itself be vicious.

• The animal is to be evaluated according to the class in general—elephants are generally wild animals, doesn’t matter that this one was tamed for circus.

• One bite rule: if tame animals bites someone the first time, you aren’t liable, but then you are put on notice of it ferocious nature.

o But even it’s had its one bite, we’ll still only impute strict liability for ferocious acts (not for dog knocking over child when it’s just walking innocently by).

o Earl v. Van Alstine: bees are kept near highway and injure Pl’s horse.

▪ Court thinks bees are technically wild, but in reality are about as domesticated as oxes or cows. They can be controlled with about as much certainty as domesticated animals and cause serious injury about a rarely. Have a lot of social value (and risks aren’t as serious)

• Should not be automatically subject to strict liability. (one bite rule)

o Note how these cases use SL as a deterrence/precaution mechanism. In Earl we don’t want to deter people from keeping bees, because they have social utility that elephants don’t.

▪ Damage caused to neighboring property

o Rylands v. Fletcher (UK): Def hires contractors to install reservoir who do it negligently and water floods neighboring property. Pl sues property owner, not installation company. Court finds owner was not negligent, but applies SL.

▪ First Opinion Rule: someone who for his own purposes bring on his lands anything likely to do mischief if it escapes, must keep it at his peril and is strictly liable for any damage that is a natural consequence (even if so long as its confined to his property, it’s harmless).

• Distinguish: collisions on highways

o In these cases negligence must be shown, since a person assumes risk by being on road or walking past places where things might fall on them (like reciprocal risks)

• As between two innocents reasoning.

▪ Second opinion rule: any non-natural use of your land makes you strictly liable for damage to neighbor’s land

o Initially, Rylands was rejected by American courts:

▪ Losee v. Buchanan: steam boiler in factory explodes and causes damage to neighboring property. No SL.

• Rule: as long as something is not a nuisance and is within the right to use and possession of your property, you are not responsible for accidental and unavoidable damage it causes.

o Court notes necessity of factories in modern society

o No liability without fault reasoning

▪ Turner v. Big Lake Oil: oil well company has artificial pond that floods neighbor. No SL

• Social utility arg: Court distinguishes Rylands because England is a wet country where keeping a reservoir is not natural or necessary. In Texas, where its dry, such a use is natural, necessary to the use of land, and contemplated by all property owners. Also notes importance of oil trade in TX

o Later, though, more American courts accepted it

▪ Lubin v. Iowa City: city follows practice of leaving pipes in ground until they explode. One does and causes damage. Court holds for SL.

• Court: practice of the city was not reasonable and made the basic practice of keeping water pipes “inherently dangerous” and the city should bear the costs of damage, because they can best take precautions and spread the cost among all the consumers who benefit from water pipes.

▪ Abnormally Dangerous Activities

o Today, cases like Rylands would be analyzed under this

o Courts use this doctrine when they don’t want to straight up deem the activity per se negligent, but want actor to internalize costs to reduce the activity level.

o RS§519

▪ A person engaged in abnormally dangerous activity is subject to SL, even if he exercised the utmost care

▪ This SL is limited to the kind of harm that makes the activity abnormally dangerous

o RS§520: what constitutes abnormally dangerous

▪ 6 factors to consider:

• 1. high degree of risk of harm (P)

• 2. likelihood that the harm will be great (L)

• 3. inability to eliminate risk by exercise of reasonable care

• 4. extent to which activity is not of common usage

• 5. inappropriateness of the place where activity occurred

• 6. extent to which social value outweighs risk (left out of Third RS)

▪ Comment:

• Ordinarily several factors will be required for SL

• Essential question is whether the risk created is so unusual that it warrants imposing SL even in cases where utmost care is used; or, where exercise of due care wouldn’t really prevent the accident

• Common usage = carried on by lots of people in the community

o Just because something is necessary to a particular industry does not make it a common usage

o Classic example is automobile: common usage outweighs substantial risks posed by it. No SL

o SL puts pressure on people to consider whether they should be doing activity at all, not just whether they should use a certain level of care—this must be considered in when we apply SL (“activity level analysis”)

o Classic cases finding for SL

▪ (1) High Risk of Harm (and great harm possible)

▪ (2) that can’t be eliminated by due care

▪ Transporting gas as cargo (Siegler v. Kuhlman) and fireworks display (Klein v. Pyrodyne)

NO SL

o Indiana Harbor Belt v. Cyanamid p.416: chemical company ships a large quantity of really hazardous chemical on RR that spills when line is being switched in Chicago and causes a bunch of damage. Note that Cyanamid was involved in the transportation, too—didn’t just hand off to someone else.

▪ Does a RS analysis—no SL.

▪ Posner notes that use of SL for inherently dangerous activities implies that there are cases where due care is futile to protecting against risk (so negligence doesn’t suffice), we want to encourage people to adjust their activity (do it elsewhere or not at all)

▪ In this case, it was not some inherent quality of the chemical that caused the damage, but that it was negligently stored. Could have been prevented by due care, so not a good case for SL (factor #3)

• Also notes that it didn’t explode, so no evidence destroyed (RIL)

▪ SL for inherent danger looks not at properties of the thing, but at the activity

• It would be completely unfeasible to assert (and PL doesn’t) that we just shouldn’t manufacture this chemical at all; relevant activity was transportation of it.

• Holding for SL would imply that a long list of dangerous chemicals shouldn’t be shipped on the railways—Posner doesn’t want to do this. (factor #4)

▪ Pl makes arg that it was inherently dangerous to transport it through big city (factor #5)

• But RR is hub and spoke so really no choice

• Even though Def was involved in transport, typically the one who ships won’t have much knowledge and control over route taken by transporter. We don’t want to hold manufacturers SL for risks that occur during transport.

• Rerouting may be just as dangerous (poorly maintained lines, journey becomes longer)

• Therefore there is no reason to think that negligence standard wouldn’t suffice to protect against the transportation risks

o Also, ppl should not live by the RR lines (bilateral precautions possible)

o Social utility considerations: left out of Posner’s analysis and out of draft of Third Restatement

▪ Utility judgments are always subjective

▪ Utility doesn’t address the question of whether we want certain actors to internalize the costs or not, or whether activity should be adjusted, etc. It just kind of obscures the whole thing

o Miller v. Civil Constructors: bullet strays from shooting range that cops use to practice. No SL.

▪ Risk of firearms can be virtually eliminated by due care

▪ Is of common usage

▪ Harm comes from misuse, not inherent in activity

▪ Location was appropriate

▪ Social value: good for cops to practice

▪ Respondeat Superior

o Holds employers strictly liable for torts committed by their employees in the course of their employment = vicarious liability

▪ Remember, this is a strict liability theory; you could still allege that employer was negligent in hiring or oversight

o Two main issues:

▪ 1. How to define scope of employment

▪ 2. Role of independent contractors

o Respondeat superior exists partly to provide Pls with someone to sue who will actually have money to pay for it (versus judgment proof individual defendants).

▪ Measure of control that employer exercises over employee also indicates that employer is in better position to take precautions (versus with independent contractors who themselves are only ones who can take precautions)

▪ A judgment proof defendant has no motivation to take precautions—so injured Pls would be screwed if they couldn’t sue employer.

• Individual’s ability to pay is often an implicit factor in courts’ assessment of employee/contractor status (though not in RS)

o (1) Scope of Employment

▪ RS§228: when conduct is in scope of employment (must be all)

• 1. Conduct that he is employed to perform

• 2. Substantially within authorized time/space

• 3. At least in part with purpose to serve master

• 4. Any force used is not unforeseeable

▪ Ira S. Bushey v. U.S. p.431: drunk sailor comes back to boat and floods the ship and dock. Dockowners sue government (employer)

• Friendly rejects an analysis of scope of employment that the sailor was acting to “serve the master”: flooding dock was not with that purpose

• Also rejects efficiency arguments

o No reason to think that imposing liability here will encourage the government to screen employees more

o Might even be more efficient for the dockowner to take the precautions

• Respondeat Superior rests on sentiment that company cannot disclaim responsibility for accidents that can be called characteristic of its activities.

o Thus, key issue is whether this was a risk foreseeable to the employer in the course of employment

o Foreseeable to gov’t that he would be crossing dock, and drunk (since sailors always get drunk)

▪ Would be different if sailor burned down bar in town.

▪ “Frolic or detour” = no liability for the employer. When going on the master’s business, there is liability for employer, but not where employee detours for his own reasons.

• Miller v. Reiman: employee leaves work with permission to deposit check and gets into collision. NL for employer. Fact that he had to return to work immaterial; would be like finding vacation within the scope of employment

• Test can get a little fuzzy: if you just stop to get a drink on work errands you’re probably still within scope, but not if you go out of your way to pick up your dry-cleaning

▪ Konradi v. U.S.: mailman driving to work is in collision. Court finds summary judgment for defendant premature.

• General rule: employee on his way to work is normally not in scope of employment, BUT there are some deviations

• Posner: SL is based on activity analysis and shifts focus from standards of care to changes in activities. Scope of employment should be functionally defined with reference to what liability will induce beneficial changes in activity.

• Here, gov’t exerted significant control over the driving of employees. It required them to use their own cars for work routes, which ensured they wouldn’t take public transport or carpool to work = more accidents. Gov’t should be responsible for the costs

• Gov’t required them to take most direct route to work because FEDERAL WC laws do define drive to work as employment. Since most direct route is not always safest, Gov’t should have to pay the costs that result from accidents, since they were exerting control over route

▪ Roth v. First Nat’l: bank teller tips off BF that guy takes out a lot of cash and BF gives info to thieves. NL for employer

• Uses RS analysis

• Act was in no way in the service of the employer

• Employee wasn’t connected with the cash transaction

• Tip-off happened outside work

• Her knowledge of the cash withdrawals was a coincidental matter of observation, not part of job

▪ Forster v. Red Top: old guy is driving too slow in front of bus. Bus driver gets out and assaults him yelling that he doesn’t want to be made late.

• L for employer: bus driver’s motivation for the fight was staying on schedule for his route—in that sense was in service of employer

▪ Reina v. Dade County: passenger and bus driver get into dispute over fare. When passenger gets off bus he makes obscene gesture. Bus driver gets off buss and assaults him.

• NL for employer: fight was essentially personal; not related to job

o (2) Independent contractors

▪ If the tortfeasor was only an independent contractor, employer is not SL under respondeat superior

▪ RS§ 220: Test for Servant / Employee (p.442)

• Control, supervision, method of payment, etc

▪ Miami Herald v. Kendall: negligent paper delivery boy found to be independent contractor, so employer not SL for his tort.

• Rule: if one controls means by which task is accomplished (not just final product) its employer/employee relationship; if not, he’s an independent contractor

• Here, paperboy controlled how he delivered the papers

• Doesn’t matter that boss would wake him if he overslept and gave him instructions how to fold the papers.

• Also not dispositve that contract called him independent contractor

▪ Non-delegable Duties

• RS§416: employer is SL if independent contractor negligently performs a non-delegable duty (one that creates peculiar risk of harm unless special precautions are taken)

o Does not = abnormally dangerous activities, but only those that involve risks different from general, common risks and which call for special precautions

o So if contractor doesn’t take those special precautions and is negligence, employer is strictly liable for these activities.

o Doesn’t mean that you CAN’T hire contractor for these tasks; it just means respondeat superior will apply for their torts

• Example: Yazoo v. Gordon: unloading steers was activity that warranted special precautions, so employer SL for negligence of contractor

• Wilton v. Spokane: dynamite left by contractor-paver under the road.

o Rule: to hold employer liable for dangerous work by an independent contractor, the harm must have been caused by the peculiar risk of harm posed by the activity and the negligent failure to take relevant precautions, not by some other random negligence.

o Collateral negligence: injury was caused by negligence outside the peculiar risk created by the activity of the contractor.

o Couldn’t have been known by reasonable diligence of employer.

▪ RS§429: one who employs independent contractor who offers services which are accepted by a person who reasonably believes the contractor is employee is liable for harm caused by that contractor’s negligence.

• I.e. taxi cab

NEGLIGENCE: DUTY

Existence of a duty: in order to be liable for negligence, it must be shown that the defendant had a duty of care to the plaintiff, which he breached.

Think of duty more in terms of exceptions (cases where there aren’t duty, or where there is for nonfeasance), rather than an issue in every case.

▪ Duties Arising from Affirmative Acts

o There is no liability for nonfeasance (total inaction) unless some special relationship between Pl and Def.

▪ RS§314: The fact that the actor realizes or should realize that his action is needed to help someone does not itself impose a legal duty to take action (p.219)

• But, if you know someone is exposed to grave physical harm and rendering aid would not put you in any peril, you should give reasonable assistance (this is NOT common law rule; good samaritan law in VT too)

• A person who provides reasonable assistance shall not be liable for any damages unless he uses gross negligence

o The law imposes duties when you take affirmative acts that impose risks on others (driving a car, performing operation). You then owe a duty of reasonable care to those your actions might injure. (if you breach this duty of care in doing the affirmative acts, it’s misfeasance)

▪ These types of cases are so pervasive in negligence that duty itself is often just assumed—not explicitly discussed

o RS§321 p.219: if the actor acts and realizes or should realize that he created unreasonable risk of physical harm to another, he is under a duty to exercise reasonable care to prevent risk from taking effect (even if he didn’t know his acts would create such a risk).

o RS§322: if actor by tortious or innocent conduct causes harm and places another in peril, he is under duty to exercise reasonable care to prevent further harm.

▪ Even if contrib. neg of other party would have prevented liability for initial acts

o Yania v. Bigan p.216: guy taunts other guy to jump into water, then doesn’t save him. NL.

▪ Rule: if you are not legally responsible for placing someone in a dangerous position, you are under no duty to help them.

• Pl did it all on his own (taunting doesn’t make Def responsible—there was affirmative act by competent person that breaks the line of causation)

o “words not enough” type reasoning

• Would be different if Def lied about depth of water (negligent misrep?) or didn’t warn him it was slippery and he fell or if Pl was a child.

o Weirum v. RKO: Radio station liable for running contest that encourages listeners to race after their dj; two teenagers were racing and forced another car off the road and driver was killed.

▪ Court finds that radio station did an affirmative act that created a risk, thereby establishing a duty of care. (which was breached)

• Radio station should have known they were creating a risk by running the contest because teenagers drive irresponsibly? Somehow line of causation wasn’t broken here, as it was in Yania, so it falls better under RS§321.

• Person injured was innocent third party, not an individual who affirmatively jumped

o Globe v. NY RR: train engineer sees fire and sees hose cart repeatedly trying to cross tracks but keeps cutting them off. Liability found for not stopping train.

▪ Rule: RR with tracks across city streets owe some duty to the public. While they ordinarily have right of way, emergency situation will obligate them to yield to other legitimate uses of the street

▪ So affirmative act of driving trains across city streets creates some duty to the public. Not allowing hose cart to cross by continuing in motion was misfeasance.

o Commentary on good Samaritan issues:

▪ Ames: law should impose liability when there is grave risk and helping would pose no inconvenience to actor

▪ Esptein: too hard for law to draw the line Ames proposes—would blur line between contract and tort liability (i.e. what if someone would pay you to help, then would inconvenience be removed, so you’re obligated to accept?)

• Would imply that rich people have to start giving their money away?

• People might have competing duties; how do we decide?

▪ Duties Arising from Voluntary Undertakings

o A duty may arise where an actor undertakes to provide assistance or otherwise voluntarily assumes responsibility. Then you must effectuate that assistance non-negligently

o RS§323: one who undertakes or is paid to render services which he should recognize as necessary for protection of the other’s person or chattels is subject to liability for physical harm resulting from his failure to use reasonable care, if such failure

▪ Increases risk of harm, or

▪ Harm is suffered because of other’s reliance

o RS§324: one who voluntarily takes charge of another who is helpless to protect himself is subject to liability for any harm caused to the other by

▪ The actor’s failure to use reasonable care, or

▪ The actor discontinued aid and thereby left other in worse position

o Hurley v. Eddingfield: doctor gets call from patient but just doesn’t feel like going to treat, so doesn’t.

▪ Rule: no duty established; no liability. Having a medical license doesn’t obligate you to accept duty to every patient who offers to pay for your services.

o O’Neill v. Montefiore: man goes to hospital for heartattack. Nurse calls doc from his insurance who asks him about symptoms and tells him to return in morning when insurance approved doc can be there.

▪ Rule: doctor who undertakes to treat or examine a patient establishes a duty. If he then abandons him may be liable for malpractice.

• Talking on the phone counted as “undertaking treatment”; he listened to symptoms and told patient to go home.

• We’re supposed to do what doctors tell us to do; different from Yania jumping because Bigan told him to.

o US v. Lawter: coast guard tries to rescue boating accident victims. While hoisting one up into helicopter, one guard poorly secures the rope and she falls. Pl alleges that CG was negligent in allowing least experienced member to operate the rope. L for government (I think under respondeat, but still have to establish that employee did tort/had duty).

▪ Rule: the law imposes a duty upon everyone who attempts to do anything, even gratuitously, for another not to injure him by the negligence performance of that which he had undertaken.

• CG made the victim worse off by trying to help and then dropping her.

o Frank v. US: coast guard saving boating victims by towing them; CG is using the last boat that was available. One guy falls of the boat as its being towed. Pl alleges the Coast Guard boat was defective and not enough CG crew present. NL.

▪ Rule: the responsibility of the coast guard rises no higher than that of a private salvor. Where rescue was diligent, though perhaps ill-equipped, there is no liability.

• Basically, court is saying that if you do your best with what you have in that moment, you’re not liable for what equipment or personnel you don’t have.

• actual conduct on the scene wasn’t careless, just not fully prepared.

• Opinion implies that as long as the fall wasn’t caused by any negligence of CG in the rescue, they were under no duty to help him once he was in the water? Seems weird.

o Ocotillo v. Sup.Ct.: friend liable for taking keys from country club employees and saying he would drive drunk friend home (then let drunk guy drive instead).

▪ Def took charge of helpless friend and thereby assumed a duty

▪ Then abandoned and left him in worse position than he had been in when CC was trying to keep his keys to prevent him from driving (RS§324)

▪ Special Relationships

o Duties to Rescue or Assist Others

▪ Trans-Pacific Fishing p.234: sailors thrown overboard in storm and captain doesn’t attempt to rescue because he’s told its too dangerous

• Special relationship btw captain and crew

• Rule: it is duty of shipowner to use every available means to rescue from sea all persons and members of its crew who are washed overboard.

• Captain negligent in not turning boat around, not throwing lifeline, etc

▪ Common Carriers:

• Brosnahan v. Western Air Lines: one passengers drops baggage on another’s head while trying to stow in overhead. L for airline

o Rule: airline has duty to supervise boarding process for protection of its passengers until boarding is completed—when all passengers are seated and all luggage stowed

• Boyette v. TWA: drunk passenger gets off at airport, steals golf cart, is chased by staff and winds up in compactor and dies.

o Rule: special relationship of common carrier ends when passengers is brought safely to port. Duty of airline was thus fulfilled/discharged and they were under no duty to passenger.

o Remember: if there’s no duty of care, you don’t have to save someone.

o Duties to Warn / to Protect others from Third Parties

▪ RS §315: There is no duty to control conduct of third person as to prevent him from doing harm to another unless

• Special relationship between actor and the third person which imposes duty to control

• Special relationship between actor and injured party which imposes duty to protect

▪ Tarasoff v. Regents of Univ. of CA p.239: patient tells therapist he’s going to kill girl. Therapist recommends commitment to police who later decide not to. Therapist doesn’t warn girl or her family. Patient kills girl.

• Rule: a special relationship of doctor-patient existed between therapist and killer, imposing duty on therapist/hospital to exercise reasonable care to control a dangerous patient’s behavior, and to warn threatened victim.

o Here, docs were fully aware of specific threat to specific person, but didn’t warn. This is key fact.

o Relationship of doctor to either the patient or the foreseeable victim will suffice to establish a duty to warn victim.

• Doc-patient privilege is suspended where telling info is necessary for welfare of others

• Police, however, had no duty to killer or to victim and were under no duty to warn victim.

▪ HIV cases: Some states now have statutes allowing doctor, without liability for violating privilege, to tell local health officer or sex/needle partners of HIV positive patient

• BUT, this statute protects them from liability if they decide not to.

▪ Thompson v. County of Alameda: police know juvenile offender has said he would kill a child in his neighborhood, but release him into custody of mother. He kills neighbor’s son.

• No liability for the county; refuses to apply Tarasoff.

• No duty to warn the entire neighborhood

• Here, there was no specific individual threatened; warning whole public too burdensome and not very effective (B>PL)

• Risk of stigmatizing released offenders if we require broadcasted warnings

▪ Kline v. 1500 Mass Ave Corp p.245: LL no longer provides doorman as neighborhood becomes dangerous, and robbery/assault takes place in common area. Evidence that similar crimes had occurred in building’s common areas?

• LL and T have special relationship insofar as the common areas of the building are concerned. Where LL has notice of danger, he is under duty to take preventative action for the premises under his exclusive control

• Where there is a relationship, duty should be imposed on party exercising control over other party and in position to take precautions

• Counter arguments in these types of cases are always the same: imposing mandatory term will raise prices, hurt lower income tenants; parties could have bargained for it themselves

▪ Bradshaw v. Daniel: Doc liable for not warning wife of a disease that husband contracted from ticks (not spreadable by husband—wife would have to be exposed to same ticks).

• Court applies Tarasoff in finding duty to warn.

▪ Hawkins v. Pizarro: No liability for doc who gave false negative to patient who later infected her husband

• At time of misdiagnosis, patient hadn’t yet met husband, so he wasn’t an identified third party who doc could owe duty to warn

▪ Public Duties

o Sovereign immunity: you can’t sue gov’t without its consent, though feds and states have waived this in various cases. Though establishing duty is often difficult.

o In cases involving police, courts have interpreted duty to extend to public, but not to any specific individual.

o Riss v. City of New York p. 249: women being repeatedly threatened by ex-BF. Repeatedly asks police to protect her and they don’t. He eventually hires thugs to throw lye in her face. She sues police for failure to protect.

▪ Rule: The state and its police have no duty to protect an individual

• Similar to Coast Guard cases

▪ Policy: police resources limited; don’t want to force allocation and exhaust them. We can’t treat government bodies like market actors by forcing them to internalize costs, because gov’t can’t as easily “raise prices” via taxes.

▪ Duties Arising from Occupation of Land

o Business Invitees (standard negligence duty) > Licensee/Social Guest (limited duty if knowledge) > Trespasser (generally no duty)

o Duties to Trespassers

▪ General Rule: no duty of care, unless you know they’re there. No duty to look for them. Exception: attractive nuisance .

• RS has exceptions for when you know there are constant trespassers

▪ Haskins v. Grybko: guy is hunting woodchucks and accidentally shoots trespasser on his land.

• Rule: landowner only owes duty to trespassers to refrain from willful, intentional or reckless conduct. Landowner is not liable for mere negligence to a trespasser. No duty to discover trespassers.

▪ Herrick v. Wixon: guy sneaks into circus and while in audience is injured by clown act.

• Rule: When trespasser is known to landowner, that landowner thereafter owes standard duty of care to him (negligence standard applies).

▪ RS§333 General Rule for Trespassers

• No duty of care to put land in reasonably safe condition or to carry on activities so as not to endanger them

▪ RS§334: Activities Highly Dangerous to Constant Trespassers

• If a landowner knows there are frequently trespassers on a certain area of his property, he is liable for failure to exercise reasonable care for their safety in conducting activities involving risk of seriously bodily harm

▪ RS§337: Artificial Conditions Highly Dangerous to Known Trespassers

• If landowner maintains artificial condition which involves high risk of bodily harm, he is liable for injury to trespassers by failure to warn them if

o He has reason to know of their presence in proximity to the condition and

o Condition is such that he should know they won’t discover or realize risk

▪ Child Trespassers

• Keffe v. St. Paul RR:

o Attractive Nuisance doctrine: landowner has duty to protect kids that he knows are likely to trespass from dangerous, artificial things on his land that kids will be attracted to play on and, because of their age, won’t realize the risk.

• RS§339: Attractive Nuisance

o Landowner subject to liability for harm caused to kids by

▪ Artificial condition

▪ Knows kids are likely to trespass

▪ Should realize involves danger to kids

▪ Kids won’t realize risk

▪ Utility to possessor and burden of eliminating danger are slight as compared to risk to kids

▪ Fails to exercise reasonable care to eliminate danger or protect the kids [fence?]

o Duties to Licensees

▪ Licensee basically means social guest or volunteer

▪ Davies v. McDowell p.258: daughter in law and husband show up to old guy’s office and he’s unconscious. Doctor tells them to wait until he’s better and take him home. They all get carbon monoxide poisoning. Husband sues estate.

• If they were business visitors (invitees) landowner has duty to exercise reasonable care in maintaining the premises in safe condition.

o But courts finds they were social guests (licensees)

• Rule: landowner is liable for bodily harm to licensees caused by a latent dangerous condition only if he has knowledge of the condition and fails to give warning. No duty to inspect.

o No liability because no evidence that old guy knew (nonfeasance).

▪ Boca Raton v. Mattef: guy is hired to paint water tower. Contract is still being negotiated but painter jumps the gun and goes to start work. Supervisor is there and allows him. Ladder breaks and painter falls and dies.

• Court finds that he wasn’t an invitee (business visitor) because he hadn’t yet been invited to do the job (K still in formative stages)

• Since licensee, landowner must have knowledge of the dangerous condition and knowledge that licensee is about to confront the danger. Beyond that, no duty w/r/t licensee’s safety.

▪ Lordi v. Spiotta: Def leaves gas on in heater negligently. Later asks Pl’s son to go down and light the heater. Leak causes explosion once lit.

• Rule: social guest rule will not hold landowner immune where the guest is injured by an unknown danger created by the landowner’s negligence. In such cases there is duty to protect. (misfeasance = negligence standard applies)

o Duties to Invitees

▪ General rule: landowner owes duty of care to invitee to maintain premises in safe condition and to reasonably discover latent dangers (and to conduct dangerous activities with care, if invitee wouldn’t know of danger). Basically, standard negligence rules/duties apply to invitees.

▪ Public invitee = invited to enter land for a purpose for which land is held open to public.

• Going into libes to get book makes you public invitee; going in to meet a friend makes you not an invitee. RS§332, pg 264

▪ Business visitor = person who is invited to enter for a purpose directly or indirectly connected with business dealings with landowner

▪ Under RS, landowner is liable to invitee for failure to exercise reasonable care in conducting dangerous activities only if he should expect that invitee won’t discover danger or protect herself (RS §341)

▪ RS §343: Landowner is subject to liability to invitee caused by dangerous conditions on land if

• he knows or by reasonable care would discover the condition and should realize the unreasonable risk involved

• he should expect that invitee will not discover or protect

• he fails to exercise reasonable care to protect them

▪ The Privity Limitation

o Similar to third party beneficiary issues: when Def breaks a contract with one party, can another party sue in tort?

▪ Background rule: no duty where no privity.

▪ Exceptions: Pl must have somehow been in privity with Def (but courts in tort don’t look at intent of parties, as in Contracts. They instead look at whether Pl had clear connection to Def)

o Moch v. Rensselaer p.270: company providing water to city is negligent and as a result, during a fire, there isn’t water to put it out. Building owner sues water company.

▪ No action in breach of contract

• Public is only an incidental, not intended beneficiary, of municipal contracts. Can’t sue on it because not a party.

▪ No action in tort

• Contracting to provide water to city does not qualify as voluntarily assuming a responsibility of care to the public.

• too unlimited in potential liability.

o Glanzer v. Shepard p.272: Def is contracted to weigh beans and certify them. Does so negligently and buyer sues them to recover amount of overpayment

▪ Rule: law imposes a duty toward buyer as well as seller where, as here, the plaintiff’s use of the weight certificates was the end and aim of the transaction (not some collateral consequence) =like intended beneficiary, so privity

o Summer of Sam cases, p. 273: lots of people sued Con Ed for the blackout.

▪ Liability found for Con Ed from storeowner who sues for spoiled food and lost business (clear connection between the contract/privity and injury)

▪ No liability for Con Ed for looting of a store.

• The looting was not caused directly by breach of the one contract, but of entire blackout that caused streetlight outages, etc.; Pl is an outside third party to all those contracts, so can’t sue on them.

o Conboy v. Mogeloff: Doctor doesn’t tell Pl that she shouldn’t drive on a certain drug. She gets into car accidents and sues on behalf of kids. No duty found btw doctor and kids because no privity.

▪ Rule: to establish duty btw doctor and third party there must be actual or approximate privity—some conduct linking Def to Pl which shows that Def understood Pl was relying on them.

▪ Note how these cases can be reasoned similarly under special relationship or privity (see Tarasoff cases)

o Biakanja v. Irving: Notary negligently doesn’t have witnesses present at will signing. Sister gets way less than intended. Liability for notary, though no privity.

▪ Rule: Determination of whether Def will be held liable to third party not in privity of K is matter of policy, considering:

• Extent to which transaction was intended to affect Pl

• Foreseeability of harm to Pl

• Closeness of connection btw def’s conduct and Pl’s injury

• Moral blame, etc

• Policy of preventing future harm

▪ Def knew that if he screwed up, the Pl would be injured. Clear connection between them.

▪ Pure Economic Losses

o General Rule: mere economic losses (not to person or property) are not redressable in tort.

▪ Similar to privity arguments: we can’t have unlimited scope of liability

• Predictability and volume concerns

• But different in that these cases aren’t about duty, its about type of damage.

o But like emotional distress, if you do have actual injury to person/property, you can typically tack on business losses that resulted.

o Robins v. Flint: Pl charters boat. Owners take back for maintenance and send to repair guys who damage and caused 2 week delay. Pl sues repair guys for business losses during delay. K was only between owners and repair shop. Sup.Ct. says NL.

▪ Rule: A tort to the person/property of one man does not make tortfeasor liable to another party merely because that person was under a contract which was unknown to tortfeasor

▪ Rule: since Pl didn’t have title or possession of the property, they can’t recover for pure economic loss

▪ Pl should work out their problem through K with boat owners

o Madison Ave Foods v. Finlandia p. 281: Wall of Def’s building collapses because of negligence and deli has to close for a week because of street blockade.

▪ Rule: a landowner does not have duty to protect an entire neighborhood from purely economic losses. No principled basis for applying liability

o Minority Rule finding liability for economic loss

▪ People Express v. Consolidated Rail: Court finds liability for rail yard that had fire which required closing part of EWR airport.

• Considerations:

o Particular foreseeability of damages (had an emergency plan that indicated nearby area would be evacuated)

o Pls must be particular identifiable class

▪ Negligent Infliction of Emotional Distress

o Often framed as a question of duty btw Pl and Def

o If Def’s negligence causes physical injury, courts all agree that Pl can also tack on damages for emotional distress (impact rule)

o Controversial cases are those where no physical impact. Typically in two types

▪ Pl is direct victim of negligence of Def, but it’s a “near miss” or involves a terrible but mistaken piece of news

▪ Pl is a bystander who witnesses the negligent injury inflicted on another

o General rule is no recovery for pure fright alone, but most courts now allow recovery when that fright causes physical consequences.

o Robb v. Penn RR p. 289: Pl’s car gets suck in rut that RR negligently allowed to form. Train comes and she narrowly escapes injury, but car crushed.

▪ Court rejects impact rule

▪ Rule: where negligence proximately causes fright in one within the immediate area of physical danger from that negligence, which in turn produces physical consequences that would be enough to recover if there had been physical impact, the injured party is entitled to recover.

o Other courts don’t require the immediate area, but only that distress was foreseeable. Others allow recovery only where there had been a breach of some pre-existing duty

o Lawson v. Mgmt Activities: employees at car dealership see plane crash and fear that it will crash into them (but it doesn’t). NL.

▪ Court employs the same test for duty as that in privity cases (foreseeability, certainty of injury, degree of closeness, moral blame, policy, burden to Def, consequences to community)

▪ No liability for airplane: not enough certainty of injury in mere onlookers, no moral blame, potential liability for Def too large

• Also, plane crashes so disastrous in of themselves, no real deterrence value to be gained by tacking on these other claims

o Quill v. TWA p.294: Pl is on plane and it plummets for 40 seconds, then recovers. Pl alleges he now suffers physical anxiety every time he flies. Court allows for liability.

▪ Much more predictable class of plaintiffs; proximity to risk clear.

o Bystanders/Observers

▪ Courts may use set of factors like (Dillon):

• closeness of relation to injured party

• whether Pl was actually present at scene

• Pl must actually be aware of the injury taking place

• reaction must be more than that expected of normal, disinterested witness, but also not so abnormal to be completely unforeseeable

• somet physical repercussions required (very little though)

• *note that we also feel a lot more certain about genuine emotional distress when it’s a relative that you saw

▪ Marzolf v. Stone: p.301. Pl (father) comes upon accident scene after crash has occurred, but finds son there injured before emergency crews arrive.

• Court allows liability, finding it too arbitrary to limit at those who were present for injury causing event

▪ Gain v. Carroll mill: Pl (father) sees live footage of son’s crash on the news. No liability because never present at scene of injury.

▪ Barnhill v. Davis: Pl (son) is driving and sees mom get into accident behind him. He alleges physical suffering from worrying about her. Court allows for liability—goes to jury.

• Based on reasonable foreseeability of his distress?

▪ Barnes v. Geiger: Pl witnesses accident and thinks its her son, but soon finds out it wasn’t. She dies the next day from brain hemorrhage.

• No liability in cases of mistake. Too attenuated to assign liability because a Pl imagined the worst had happened.

CAUSATION

▪ Two things must be established

o 1. Cause in fact = but for lack of due care, injury wouldn’t have occurred

o 2. Proximate cause = foreseeability issues

▪ But For Causation / Cause in Fact

o Pl must show that due care (more likely than not) would have prevented the harm.

▪ Some courts use a “substantial factor test” (was Def’s negligence a substantial factor in causing the harm), which is more lenient, but still wouldn’t apply where the injury would have occurred even without the negligence (alternative liability cases are the exception)

o NY Central RR v. Grimstad: p.308 Pl’s husband falls overboard and drowns. Pl alleges that boat comp was negligent in failure to provide lifesaving equipment. Ct: no causation

▪ Cause was falling in the water. No evidence to show that had safety equipment been present, it would have prevented his death (too speculative for cause in fact)

o Relation btw breach of duty and but for causation:

▪ Gardner v. National Bulk: sailor falls overboard at some point during night. Boat doesn’t stop to look for him. Ct: causation.

• While time of fall and probability of rescue are unknown, we do know that sailors can stay alive in water for long time, and turning around involved no risk for boat.

• Boat clearly breached duty to look for fallen crew, which allows contributing cause in fact to be inferred by law.

▪ Grady excerpt, p.312: Notes relation of but-for causation and breach of duty.

• However Pl defines the breach of duty will also factor into determination of whether that breach caused the injury. A Pl may choose a failed precaution that easily shows breach of standard of care but that doesn’t establish causation. It may be clearly negligent to not have lifesavers, but harder to show that no lifesavers was but for cause.

o Stacy v. Knickerbocker: Pl leases horses to ice company. One of employees falls through thin ice when horses spooked. Pl alleges negligence in not putting up fence (as required by statute), not warning employees of thin ice patch, failure to put ropes for rescue near lake. Ct: no causation.

▪ Had all those precautions been taken, they would not have saved the horses.

• Horses huge and uncontrollable, so fence or employee knowledge would not have helped. Ropes likely wouldn’t have saved horses in time

▪ Why doesn’t court care that fence was required by statute? (Clear breach of duty like in Gardner)

• Fence requirements imply that it’s required to prevent people from falling in, not horses (so prob wouldn’t be a good case for per se negligence)

o Traditional But For Causation Rules: Pl must show that some untaken precaution more likely than not (>50%) would have prevented his injuries

▪ In other words, there must be greater than 50% chance that the negligence was cause of injury.

• If doctor’s negligence brings risk of death from 5% to 25% and patient dies, there is an 80% chance that doctor’s negligence caused it = liability

▪ So, Pl basically has to show that doctor’s negligence more than doubled risk of injury.

• This traditionally means that if Pl had less than 50% chance of survival at the outset, doc’s negligence could never be cause in fact. This is rejected in Herskovitis.

o Loss of chance cases

▪ Herskovitis v. Group Health p.317: Pl sues for doc’s failure to diagnose lung cancer. Expert testifies that failure to make early diagnosis did not “probably” or “more likely than not” cause death, but it probably reduced chance of survival from 39% to 25%. Court finds causation.

• Issue: if you have less than 50% chance of living regardless, can doctor be liable for negligence that just further decreases your risk?

• Holding: Yes; can go to jury. Otherwise would create pocket of immunity for doctors for patients will low chances of survival at the outset.

• Note that this is imposing liability for an injury that the doctor more likely than not didn’t cause.

o More like criminal liability: punishment for conduct.

• Concurrence: depends on how we define injury.

o Damages should be apportioned based on the % chance of recovery without negligence (so 39% of compensable value of victim’s life).

▪ Note how this lessens force of rule

▪ Dumas v. Cooney: court rejects instruction on loss of chance rule, even though doc’s negligence probably brought patient from 67% to 20% chance of survival.

• Ct thinks traditional rule prevents more unwarranted claims.

▪ Alternative Liability

o General Rule: If a party cannot identify which of two or more defendants caused an injury (but Defs were negligent and one of them certainly did cause injury), the burden of proof shifts to the defendants to show they were not responsible.

▪ This is akin to “Joint and Several Liability”; treats Defs as if they were acting in concert: each Def can be held responsible for the whole damage; burden on Defs to split it up or exonerate themselves individually. (Pl can’t recover more than the whole)

▪ Remember, this is causation rule. You still have to show Defs were negligent.

▪ Two approaches:

• (1) Summers: out of Defs sued, all were negligent in the same way and one certainly did it, but because of nature of injury, we can’t figure out who. Up to them to figure out.

• (2) Market Share/Apportionment theory: Only used in certain pharma cases: all the Defs negligently marketed the same drug and had a majority of the market, we just don’t know who caused this particular injury. Damages can be apportioned by percentage.

• *Remember: acts/goods must be identical and all of the Defs must have been negligent for there to be alternative liability.

o Summers v. Tice, p.332: Pl hit by bird shot fired by one of two defendants, both of whom were negligent in firing. Pl can’t prove which shot hit him.

▪ Rule: Pl has made out a case when he has produced evidence which gives rise to an inference that one of Def’s negligence was proximate cause of the injury. It is up to the Defs to explain the exact cause.

▪ Holding: Each Def liable for the whole damage, whether they acted together or independently.

▪ Court compares to Ybarra: res ipsa loquitor for all hospital employees who had connection with negligent operation. Note that Ybarra was minority rule for RIL, but is majority rule in causation.

o Apportionment of harm to causes (RS §433):

▪ Where each Def owned a percentage of the things potentially responsible for the harm, they may be liable for the same ratio of damages.

▪ But if A successively stores a piano with several warehouses and doesn’t realize until years later that one caused damage, he has burden of proof .

• Each Def performed completely separate acts, so responsible party would have been ascertainable.

o Kingston v. Chicago, p.334: Def negligently starts fire which joins with another fire of unknown cause and Pl’s property is destroyed. Each fire alone would have caused the damage. Verdict sustained for Pl.

▪ Burden is on Def to try to prove that other fire was so much greater that his own fire could not be cause.

▪ Note that there isn’t but-for causation here, in any case. Again, doctrine treats two fire-starters as if they were acting in concert.

▪ Substantial factor test: where Def’s conduct was sufficient, but not necessary to result, he need only be a “substantial factor” in result (this is an exception to the general but for cause rules).

o Sindell v. Abbott Labs, p.336: Drug that was negligently manufactured and marketed was given to Pl’s mother and caused her cancer. Pl can’t prove which drug company made the drug administered, but sues 10 drug companies who had majority of the market for that drug and all were negligent in manufacture and marketing.

▪ Court rejects contention that alternative liability theory requires Def to have better access to info of cause than Pl.

▪ numerically, it’s quite possible that none of these Defs did it, whereas in Summers, one of them certainly did

▪ Market share theory: since these Defs had substantial share of the market, we can determine that there’s a quite large chance that one of their drugs was the one administered. Each Def can therefore be held responsible for a percentage of damages based on its percentage of market share

• Reasoning: even if it wasn’t one of these defendants, it was someone doing exactly what they were doing. Also, compensates for those who were injured by these drugs by didn’t bring suit (increase deterrence by increasing penalty).

• This rule was widely adopted, but only for these particular drug cases.

o Considerations for market share theory:

▪ Typically all the Defs have done something wrong, it’s just a matter of determining who caused this particular injury.

▪ Local or national market?

▪ Should Def be able to exonerate itself for the individual case (Pl remembers red pill, e.g.)

▪ How large a share of market must the Defs together represent before they can be held liable for the damages?

▪ Sanderson v. Int’l Fragrance: Pl sues manufacturers of 7 different perfumes claming that exposure to some chemical caused her injuries.

• No liability. Perfumes not fungible (not all interchangeable).

• Also, this isn’t a case where all the Defs did something wrong, and we just don’t know who caused this particular injury( several of the Defs totally innocent

▪ Proximate Cause

o General rule: damage must be (1) of the type/general sort that’s reasonably foreseeable to make the act the proximate cause for liability (though can be greater in amount). (2) Injury must also be the direct result of the act

▪ Note type / magnitude distinction

▪ The foreseeability inquiry can often be answered by asking, was this the sort of potential injury that made the act itself negligent?

▪ *Direct-ness inquiry isn’t gone into much by courts for these cases, but looks at relation in space and time between act and injury.

o (1) Remoteness and Foreseeability

▪ Old Rule: In re Polemis, (UK) p.351:

• “If the act would foreseeably caused damage, the fact that the damage it in fact causes in not the kind of damage one would expect is immaterial”

▪ Majority Rule: The Wagon Mound (UK), p.352: Defs spill oil that Pls see and suspend operations. Two days later Pls resume because they think its dispersed; fire. Court finds that Defs couldn’t reasonably have known that the oil spilled on water would set fire.

• A man is only responsible for the probable (reasonably foreseeable) consequences of his act.

o Typically, the foreseeability of the harm caused will be assessed in the reasonable man test for negligence, but where harm is different type than that foreseeable (i.e. is different from type of harm that made act negligent), NL for unforeseeable harm

o Note: a suit brought by another ship was successful because they characterized facts as foreseeable damage. Ct didn’t think it weird that cases went two different ways; above Pls didn’t want to stress foreseeability because then they might have been found contributorily negligent. How you cast facts matters!

▪ Petition of Kinsman Transit, p.356: part of boat is negligently secured, so ice builds up, ship comes loose and all sorts of damage results.

• U.S. Rule: Damages need not be limited to foreseeable ones, when the consequences are (1) direct and the damage, though greater than expected, (2) is of the same general sort that was risked/foreseeable.

o Damage of the same general sort, from the same forces whose existence required a greater exercise of care than was displayed, will create liability, even if exact developments and amount of damages was not foreseeable

o Deals more with magnitude than type of damage.

o If the damage had caused a doctor to be delayed and a patient died, this would not be proximate cause (different type of damage than that to be expected from negligently securing boat)

▪ Doughty v. Turner (UK), p.358: workers drop lid into molted chemical; caused huge explosion. Trial court found that Defs couldn’t have known that explosion would result from fall.

• Even though a splash of liquid might have been foreseeable injury from dropping lid, the result here was entirely different from foreseeable splash (explosion not of same type as foreseeable).

o Act was negligent because of risk of splash, not risk of chemical explosion (the latter not being foreseeable).

• Damage was not caused by the force of dropping the lid, but from chemical reaction (key distinction). No liability.

o Court characterizes the explosion as a separate act from the dropping of the lid.

• Based on rat case below, this one could really go the other way too

▪ Colonial Inn v. Gay, p.360: Def backs car into heater, thinking its just the wall. Causes gas leak and explosion. SJ for Def overturned.

• Court: not so unforeseeable to escape liability. Hearing audible crash is enough to make this type of damage foreseeable.

• If Def’s conduct is substantial factor in bringing about injury, it isn’t necessary that extent or exact manner could have been foreseen (Kinsman rationale). Building was like an eggshell skull Pl.

• Different from Doughty in its characterization of “general sort of damage” foreseeable. Also, here it was the force of the crash that caused injury, not some other force

▪ DiPonzio v. Riordan, p.361: guy leaves car running and it flips into gear and crashes. Pl alleges that Def gas station was negligent in not enforcing policy of turning off engines.

• Court: no liability. Policy was to prevent foreseeable gas fires. Damage caused was not of the general sort associated with risk of leaving car running at gas station (not foreseeable enough).

▪ United Novelty v. Daniels: Def company instructed employee to clean machines with gasoline in room with lighted gas heater. Rat running back and forth causes explosion. Liability? Like Doughty, injury was essentially the same as the type to be foreseen from the negligent conduct, but there was another freak occurrence that contributed. But this type of accident is the very reason that conduct was negligent: you created risk and injury happened is all that matters.

▪ Steinhauser v. Hertz p.362: Def causes car accident and Pl later develops schizophrenia. Doc says she was predisposed, but that accident set it off.

• Court finds liability. Egg-shell skull Pl—Def responsible for all the injuries flowing from negligent conduct. (issue of magnitude)

▪ The negligent conduct must have created the risk; NL just because negligent conduct put you in the place of an unforseeable occurrence

o Central of GA v. Rice, p.362: train negligently passes Pls stop. She gets off at next one and conductor puts her up in hotel that then negligently burns down.

• Court: no liability. Injury was caused by negligence of the hotel; not at all foreseeable to RR that this would have happened and skipping her stop was not natural cause of injury.

o Like intervening causation

o This type of injury could have happened even if she got off a right stop.

• Similar: Berry v. Sugar Notch: tree negligently falls on train, but Def claims train was speeding. Court rejects contributory negligence claim.

o Speeding itself didn’t make accident any more likely and risks of speeding don’t include falling tree limbs.

o Injury caused by aid rendered by third parties

▪ General Rule: where Def is liable for an initial injury, he is also liable for injuries resulting from the normal effort of third persons to aid, even if that aid was negligent (RS §457)

• But not answerable for extraordinary misconduct by third parties (evil nurse)

• If Def negligently injures you and then ambulance crashes, Def still liable.

• Def may also be liable for foreseeable injuries to rescuers

▪ If Def injures Pl and causes subsequent impairment which is then cause of a second injury, Def is liable for that too, if a normal consequence of such impairment (RS §460)

• NL if Pl tries to go down ladder on crutches, e.g.

o Posner on causation

▪ Where we don’t extend causation for lack of foreseeability reasons, we’re saying that injury was not part of the P*L that could have been prevented by taking B precautions (Hand). Or because cost of obtaining information about the possible risks was so high that B far exceeds P*L.

▪ Awarding damages for eggshell skull Pls (unforeseeable extent of damages) is compensating for all the rock skull cases.

o Intervening Causes

▪ General Rule: a separate, unforeseeable and independent act by a third party that directly causes the injury will negate liability for Def’s negligence.

• Ex: Intentional tort, malice

▪ But a typical occurrence that could have been foreseen = L.

• As does an involuntary act by another for self-preservation.

▪ RS§448: An intentional tort committed by a third party is a superceding cause of harm, even if actor’s negligence created opportunity for that tort, unless such conduct should have been foreseen by the actor

• RS§449: If the likelihood that a third party may act in a particular manner is the reason the actors conduct is negligent, he does not escape liability.

▪ Grady, on classification of intervening conduct issues

• 1. Def was negligent and no intervening act = L

• 2. Def’s negligence made Pl especially vulnerable to someone else’s negligence or emergency response= L

o Applies when rescuer injured in course of rescuing a person endangered by Def’s negligence

• 3. Def negligently created unusually tempting opportunity for irresponsible third parties to do harm = L

• 4. Third party saw risk and willfully didn’t take precaution = NL

• 5. Third party committed intervening and independent wrong = NL

▪ Brauer v. NY Central p.368: train crashes because of negligence, stuff scatters, RR detectives where on the train, but stuff still gets stolen. Liability.

• Rule: the act of an intervening third party will not excuse the original wrongdoer if such act ought to have been foreseen.

• The crash clearly resulted in the passengers being unable to protect their property, which would foreseeably result in theft. RR clearly foresaw this and employed detectives

▪ Malice is intervening cause: Watson v. Kentucky Bridge p.369: Def’s train negligently derails and spills gas. A outside party lights a match that causes fire.

• Rule: if fire was caused by third party lighting a cig, a normal event and risk to be expected, it’s not an intervening cause and could have been foreseen. But if third party did it on purpose out of malice, it is an intervening cause and not foreseeable

▪ Village of Carterville v. Cook p.370: city found liable for failing to put railing on sidewalk, even though Pl was injured because accidentally bumped by passer-by.

• The reason for having railings is to protect people from being jostled accidentally.

• Someone intentionally pushing someone into a hole left open by the city is an intervening cause: intentional torts typically intervene.

▪ The Squib Case p.371: firecracker thrown. It lands at the feet of a few people, each of whom tosses it away to protect himself. No intervening cause.

• Rule: a person is not an independent agent (intervening cause) when he is acting by compulsion to ensure his own safety (like involuntary act).

o Original thrower is liable as the cause.

• But NL where Pl recognized the risk caused by the negligence, could easily have saved herself, and didn’t. Then she herself becomes intervening cause. (The Roman Prince)

• Lack of agency issue: If Def’s clowns negligently distracted a driver who then causes a crash, Def is proximate cause (crasher was dependent on the negligence, not acting as independent agent)

▪ Hypos in “freak accidents”: which allow for Def to still be proximate cause?

• Johnson: Def negligently fails to remove gas before Pl begins work with a torch, but it is a lightning strike that causes fire.

o L: possibility of fire was reason act of leaving gas was negligent, was foreseeable damage

• Henry: Def negligently severs gas line and Pl is called to fix. Other employees release mosquito gas and another yells “Fire!”. Pl thinks there has been explosion and runs through fog and hits himself on pole.

o L: negligence created risk of explosion, which includes people getting hurt running away. The reason act was negligent was variety of potential injuries to people in area. (mistake doesn’t matter: you created risk and injury was of type foreseeable)

• Clark: Def leaves behind pail of glycerine in worksite. Son of farmer puts in graveyard and two years later kids find it and are told my uncle who says its probably animal fat. Explosion while they’re playing with it.

o L: the reason its negligent to leave behind bucket of explosive is because someone might stumble upon it and not know what it was.

• Richardson: Def negligently leaves bulldozer unlocked and drunk ppl take it and cause a crash.

o L: The reason for negligence was that other people might break in.

• Farmiliant: Pl tries to make changes to his itinerary, planes are sold out so takes train, gets sick on train ride and is hospitalized. Assuming airline was negligent in not having a seat for him, is there causation?

o NL: his probability of getting sick was likely the same, regardless of itinerary changes, so negligent act didn’t create the risk (like Prince hotel fire case). He himself was changing plans; was his own fault!

• Bell: Def negligently causes accident where trailer blocks road. Ppl gather and flash lights to cars to warn them. Driver with whiskey found in car doesn’t see lights and crashes into two attempted rescuers.

o NL: drunk driver was independent intervening act. Initial accident had come to a rest.

o L: From Def’s conduct was foreseeable that people would try to help—proximate cause can extent to injuries to rescuers.

▪ Palsgraf: Man rushing to get on subway; employees negligently push him through the door and he drops his package containing fireworks and explosion injures woman standing on platform.

o Issue: when you breach your duty of care to one person, and other people are also injured as a result, what is your liability to those other people?

▪ Majority thinks there was no duty of care between employees and woman?

▪ Dissent thinks its issue of proximate cause and there should be liability

• This view is more followed

DEFENSES

▪ Generally take two forms

o 1. Pl was himself negligent (contrib. or comparative neg)

o 2. Pl assumed the risk (3 subtypes)

▪ a. expressly

▪ b. primary: risk was inherent in activity that Pl chose to undertake

▪ c. secondary: Pl chose to encounter risk created by Def’s negligence

COMPARATIVE and CONTRIBUTORY NEGLIGENCE

▪ Does comp/contrib. negligence never matter for SL?

▪ Traditional common law rule of Contributory Negligence was that if Pl’s own negligence contributed at all to her injuries, she could not recover anything from a Def’s whose negligence also contributed. This rule has now been abandoned everywhere except AL.

o “All or nothing” harshness

o Does NOT prevent recovery if Def was reckless or intentionally harmful

o But loosened by courts in a few ways:

▪ Judging Pl’s conduct more generously

▪ Jury sympathizing with Pl’s who weren’t very negligent

▪ Last Clear Chance Rule:

• Pl can recover despite her contributory negligence, if the defendant had a good opportunity to avoid the accident at a point when the Pl did not. (E.g. Def saw the Pl but failed to avoid inflicting injury)

o Ex: Pl negligently leaves donkey by side of road and Def negligently runs over it. Pl can recover.

• RS§479: Last Clear Chance: Helpless PL

o Def is still liable despite Pl’s contrib. if immediately preceding the harm:

▪ Pl is unable to avoid it by reasonable care

▪ Def is negligent in failing to utilize opportunity to avoid harm

▪ When he knows or should have known of Pls situation

• RS§480: Last Clear chance: inattentive Pl

o Pl can still recover, even if she should reasonably have discovered and avoided harm from Def’s negligence if

▪ Def knew of Pl’s situation

▪ And realized or had reason to realize that Pl was inattentive

▪ And then is negligent in failing to utilize his opportunity to avoid the harm

o Different from above because deals with Pl’s negligent inattention, not inability to avoid the harm right before it happened

▪ Comparative Negligence (McIntyre v. Balentine)

o Two forms:

▪ 1. Pure: Pl’s recovery is reduced in proportion to his own negligence

▪ 2. Modified

• 49% rule: Pl can only recover any proportional amount if his negligence was less than Def’s

• 50% rule: Pl can only recover any proportional amount if his negligence wasn’t greater than Def’s

o this one is most common (half states). Rest split btw other two.

▪ *These are instructions given to the jury to determine in a special verdict (find total amount of damages, find % of liability for each, find Pl’s recovery)

o Considerations:

▪ Is this just drawing an arbitrary line to recovery?

▪ Do the modified rules incentivize Defs to be negligent up to a certain point?

▪ Does is just give Pls motive to sue for things that are mostly their own fault?

o Comparative negligence or causation?

▪ Most states think you should only compare how negligent each party was, not how much of each’s negligence caused the injury.

• I.e. really drunk bicyclist is more negligent than truck driver who is speeding slightly, even if force of truck caused most of injury

▪ But other states courts have avoided committing to one view and may consider both

o Conduct worse than ordinary negligence / public policy concerns:

▪ Often, Pl’s recovery may still be reduced if she was negligent, even if Def was worse than negligent. But certain public policy rules emerge.

▪ Manning v. Brown

• Where Pl has engaged in serious violation of the law from which her injuries directly resulted she will be precluded from recovering for another party’s negligence. (Def’s negligence ignored for public policy reasons)—similar to contributory negligence, even though a comparative neg jurisdiction.

▪ Fritts v. McKinne:

• Negligent Doc cannot claim comparative negligence because Pl had to undergo operation because of his negligence (drunk driving). Pl’s negligence ignored for policy reasons.

▪ Ouellette v. Carde:

• Def cannot claim comparative negligence from a Pl who was trying to rescue him. Only if an aiding Pl is “rash or reckless” will his recovery be limited. Ignore Pl’s ordinary negligence for policy reasons

▪ Hypo: Pl crashes because driving drunk. Sued Def car maker that injuries resulted from negligent design of car

▪ Express Assumption of Risk

o Dealing with liability releases. Stuff from brief

o Van Tuyn v. Zurich:

▪ Rule: for exculpatory release to be effective against a negligence claim, it must expressly state that it releases the party from negligence liability

o Manning v. Brown: parachute jumping. Release effective.

▪ Rule: where activity is not a necessary one to the party’s well-being and where there is no evidence that free choice was impaired, release is effective

o Common carriers:

▪ General rule is that releases purporting to exempt common carriers from negligence liability are void (necessity issues)

▪ Exception: if Pl has received compensation (free or reduced fare) in exchange for releasing liability, courts may enforce (Anderson)

o TUNKL 6 Part Test, p. 585

o Rule: liability releases are generally strictly construed against party seeking enforcement (Phillips Home Furnishings)

o RS§496B: A Pl who expressly agrees by contract to assume the risk of harm from Def’s negligence cannot recover, unless agreement is void for public policy

▪ Considerations:

• Pl must have known what he was agreeing to and given his assent

• Necessity of service / bargaining power / free choice

o Shorter v. Duyn: Pl is Jehovah’s Witness and signs release saying she doesn’t want blood transfusion during risky operation and releasing docs from any results from her refusal. Something goes wrong, doctors plead, but she still refuses blood. Her husband sues claiming that docs performed the operation negligently, so release didn’t apply.

▪ Probably can go to jury?

o Vodopest v. MacGregor: Pl goes on medical research hike to use breathing techniques against altitude sickness. Signs release for all liability. Gets sick and accompanying nurse tells her to use breathing technique instead of descend.

▪ Release effective?

▪ Primary Assumption of Risk

o Ruled: Pl is barred from recovering for injuries she suffers as a result of freely undertaking a dangerous activity.

▪ Not really a defense per se: where this rule applies, the Pl is prevented from making out a prima facie case (so inquiry into whether Def was negligent won’t occur)

▪ Amounts to saying that Def had no duty to protect the Pl from the harm suffered, or that duty wasn’t breached

▪ This is basically akin to a consent theory (Pl consented to the risk that created the injury).

o Paradigmatic case: Murphy v. Steeplechase, p.590

▪ Pl assumed the risk of falling off amusement ride whose entire purpose was to throw people, which was observed by Pl beforehand. One who takes part in such an activity accepts the dangers that inhere that are obvious and necessary

▪ Even if the machine had jerked unusually, this “would add little to the case,” since the only possible result was falling onto the padding, which Pl was aware of.

• This is weird, because theoretically, for Pl to argue that there was a mechanical failure in machine which was not an obvious risk, that would be a good claim.

▪ Would be different case if the danger was hidden or not to be expected, like if he fell on a nail or something.

▪ Also would be different if Pl claimed that accidents were so likely that operating the machine at all was negligent.

o Woodall v. Wayne Steffner, p.592: stuntman is going to do a human kite stunt. Is assured by production company that professional stunt driver will drive car. They hire amateur who causes accident.

▪ Rule: assumption of risk must be free and voluntary. Must appear from words or conduct that Pl consented to relieve defendant of duty to protect him. If Pl surrenders to the Def’s better judgment upon an assurance of safety, he does not assume the risk (unless danger is so obvious that no assurance could be reasonably accepted)

▪ Even though result (falling) is the same as what would have been caused by an obvious risk, what’s important is the thing causing the risk was not obvious because Pl was reassured (he didn’t consent to having amateur driver).

o Employment Risks / Contract Relationships

▪ Cohen v. McIntyre: Vet sees dog snap and then asks that he wear muzzle during operation. After operation, muzzle is removed and dog bites him. Vet sues owner.

• Court: Def owed no duty of care to the vet, unless she was engaged in active misrepresentation or her conduct was so reckless so as to fall outside the range of behavior expected from vet customers.

o I.e. vet assumed the risk of being bitten by dogs of his customers, especially those that had manifested a tendency

▪ Neighbarger v. Irwin: Def maintenance company causes gas leak. Pls were safety supervisors who try to close valve and are burned in fire that ignites.

• Firefighters rule: member of the public who negligently starts fire owes no duty of care to firefighters who come to combat it.

o Rationale: public needs firefighters for public welfare and pays them through taxes. Fires started by negligence are inevitable part of the job

• L: Court does NOT apply this rule to Pls—private factory safety supervisors

o Rationale: Def didn’t contract for Pls safety services (was third party). Injury-causing risks are not as inevitable part of the supervisors’ jobs.

o Def probably couldn’t claim that they were privy to the factory’s contract with the safety supervisors (privity case is really hard to make)

▪ *Note: workers’ comp now takes place of these claims

o Hendricks v. Broderick, p.595: By engaging in an activity, you don’t necessarily accept the risk of another person’s negligence

▪ Rule: hunter does not assume every risk possible by hunting in a forest. Has a right to assume that other hunters will exercise due care

• I.e. by hunting, you don’t assume the risk of being shot by another hunter

• Def can still attempt to establish contributory negligence, though.

▪ This case seems to show that you can try to argue that you didn’t assume the risk of Def’s negligence (that such conduct was outside the scope of what you consented to accept).

▪ Secondary Assumption of Risk

o Arises when defendant does have a duty to Pl and may have breached it, but asserts that Pl recognized the danger created by Def’s negligence and voluntarily chose to encounter it.

▪ Used to mean no recovery for Pl, but now, like comparative neg, will just lessen the Pl’s recovery in many jurisdictions

o It’s actually merged outright with comparative negligence in many jurisdictions, so the question becomes only how reasonable was the Pl’s encountering of the risk. (So as long as Pl was acting reasonably, they won’t be barred or lessened in recovery.) But not all courts do this:

▪ Cf. Kennedy v. Providence Hockey Club: Pl hit by hockey puck at game after having seen flying pucks at previous games.

• Rule: contributory negligence and assumption of risk do not overlap. As long as Pl acts knowingly in encountering the risk, it is immaterial whether he acted reasonably.

• Pl knew of risk that puck would fly into the crowd; the fact that her seats were only ones available does not make her choice less voluntary to sit there.

o Hennessey v. Pyne: Pl lived adjacent to golf course and her building was frequently hit by flying balls. One day she stopped to look at her flowers and was hit by one. SJ for defendant reversed.

▪ Court: the question of whether Pl voluntarily assumed the risk of injury when she stopped to look at flowers was a factual question for the jury.

▪ Compare to Kennedy: easy to say that Pl shouldn’t be at hockey game if she doesn’t like the risk; more burdensome to expect Pl here to move.

o Fagan v. Atnalta: Pl is customer in bar and sees fight break out. Tries to help female waitress so the fighting patrons beat him up. Pl asserts that barowner was negligent in not having better security given history of fights at bar. No liability.

▪ Rule: an adult of ordinary intelligence will be held aware of the manifest risk of injury when he deliberately and voluntarily enters a fight, as matter of law.

▪ Even if the bar was negligent in creating the risk, Pl observed that manifested danger and chose to enter into it.

▪ How does this relate to the fact that Def’s negligence is typically held to extend to those who come to rescue under proximate cause?

• In those cases, Def could perhaps try arguing assumption of risk (would be different from talking strictly about causation). But often the risk that injured the rescuer isn’t as readily apparent beforehand as it was here, so assumption doesn’t seem to apply.

▪ Distinguish from Eckert (kid on train tracks): Waitress not as helpless, more time to think, might have been other options.

o Marshall v. Ranne: Def’s boar gets loose on Pl’s property and is there for several weeks, repeatedly charging and trying to attack Pl. Pl leaves note for Def that he has to do something. One day Pl exits house thinking it safe and is injured by boar. Judgment for Pl as matter of law.

▪ Rule: where Def’s negligence forces the Pl to encounter the risk (esp. on his own property), it cannot be held a voluntary assumption of risk.

▪ Pl was strictly liable for the damage done by the boar, who had known vicious propensity (so any contributory negligence by Pl doesn’t apply). Though assumption of risk is a defense to SL, it doesn’t apply here.

▪ Court doesn’t find Pl’s option of shooting the hog earlier a reasonable alternative, since he then could have been subject to criminal liability by statute. (court trying to keep Pls from taking law into their own hands?)

o RS§496: assumption of risk and volunteers

▪ A Pl does not assume a risk of harm unless he voluntarily accepts the risk

▪ Not voluntary if Def’s tortious conduct has left him no choice but to encounter the risk

• In order to protect himself or another

o *seems out of line with Fagan.

• In order to exercise privilege/right that Def had no right to deprive him of.

▪ Comment: if Pl is compelled to encounter the risk by circumstances outside the Def’s negligence, it IS still voluntarily assumption of risk (e.g. renting in obviously dangerous apt building because you can’t afford something else—this now affected by statutory tenant laws?)

PRODUCTS LIABILITY

HISTORICAL DEVELOPMENT

▪ Moving Away from K regime: Macpherson v. Buick, p.447: Def made cars. Sold to retailer who then sold to Pl. Wheel collapses. Wheel not made by Def, but evidence that defect could have been discovered on reasonable inspection.

o Issue: did manufacturer owe duty of care to anyone but the immediate purchaser?

o Holding: yes

o Rule: To establish a duty of care between seller and someone other than immediate buyer, there must be:

▪ (1) nature of product is such that it is reasonably certain to be dangerous to life and limb when negligently made

• this may be issue for jury; note change from “inherently dangerous”

▪ (2) Def must have knowledge that product will be used by persons other than purchaser, and used without new tests

▪ (3) Proximity/remoteness can also be considered, but there need not be privity of contract.

o This case modified the old rule that there was no duty of care from seller to someone not in contract/privity with him, unless object was inherently dangerous. (Pl could only sue retailer, who could then due manufacturer).

▪ RIL: Escola v. Coca Cola, p.454: Coke bottle explodes in waitresses hand.

o Court: although it is not clear in this case whether the explosion was caused by an excessive charge or a defect in the glass, there is a sufficient showing that neither cause would ordinarily have been present if due care had been used. Also, Def had exclusive control over the bottles.

▪ =res ispa loquitor to supply inference of negligence

▪ Note that this isn’t totally doctrinally sound (wasn’t exclusive control over the coke bottle up until accident, e.g.)

o Traynor, dissent: thinks manufacturer should be strictly liable for all injuries resulting from products where manufacturer knows the products will be used without further inspection, as matter of public policy.

▪ Manufacturer best positioned to take precautions

▪ Consumers have faith in products

▪ Pls are on poor position to prove where negligence occurred and courts are in a bad position to evaluate.

▪ Can spread costs among customers (so is like a form of insurance, even against inevitable accidents)

• But if most customers wanted this insurance, wouldn’t the market have created a warranty? Paternalistic; lack of info.

▪ Not much practical difference between doing RIL (let’s just save all those hoops)

▪ Current Rule( SL: Greenman v. Yuba Power Products, p.457: Pl buys power tool that malfunctions and injures him. Traynor’s concurrence becomes the law.

o Rule: a manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without further inspection, proves to have a defect that causes injury.

▪ There need not be an express or implied warranty claim in contract

o “Reasonable time” requirement does not apply to Pl’s claim, since he was a remote buyer.

▪ *Note how SL relates to negligence waivers:

o In former, we’re putting fault on Def regardless of negligence; in latter we’re putting responsibility on Pl regardless of negligence.

o Might reflect general feeling that negligence inquiry is a tough one to do correctly, and can be reasonably avoided?

o Also think about how it effects the precautions that each party must take. (manufacturer in far better position, can spread cost among customers, etc)

▪ Inevitable accidents: Relating SL to the Hand Formula

o In former, we’re saying that even if from an omniscient social planning perspective, you did everything we’d want you to, we’ll still hold you liable, even for inevitable accidents.

o In Hand formula, we focus on encouraging the optimal level of precautions from a cost effective standpoint (social planner); where optimal precautions taken, we won’t hold you liable for inevitable accidents.

o So note that behavioral outcome will likely be the same under either regime: Pl will take the precautions that seem most cost-efficient. Wherever B>PL you won’t take the precaution.

▪ Activity level analysis

o Certain activities carry with them inevitable risks, even with due care; so risk goes up with level of activity

o Activity level analysis is not a formal consideration in a negligence regime( where courts want to use it, they’ll lean towards SL.

o SL encourages people to cut down on the activity( manufacturers will raise price and fewer people will buy the product, so less risky activity takes place.

▪ Do we want this? Can go both ways.

▪ Three general areas of products liability

o Manufacturing Defects

o Design Defects

o Failure to Warn

▪ Restatements Second §402

o One who sells a product in defective condition unreasonably dangerous to the consumer is strictly liable, IF

▪ Def is commercial seller of that product (not just casual sale)

▪ It is expected to reach consumer without substantial change

o Doesn’t matter if seller has exercised all possible care; doesn’t matter if Pl is remote buyer without contract with seller.

▪ Restatements, Third

o One who is in the business of selling products who sells defective products is liable for injuries caused by that defect.

o Defective products = manufacturing, design, or failure to warn defects

o Comment: this SL applies also to nonmanufacturing sellers (retailers, e.g.), though many jurisdictions have statutory provisions to protect these people from SL where manufacturer can be sued instead.

MANUFACTURING DEFECTS

▪ Strict liability on both manufacture and retailer of goods having a manufacturing defect that causes injury (RS Third §2)

▪ Welge v. Planters, p.464: Pl is injured when jar of peanuts breaks in hand. Sues retailer, peanut manufacturer and glass manufacturer.

o In these cases, it’s typically treated as joint/several liability between all the potentially liable parties in supply chain.( Pl just has to show defect was introduced before he bought it (different than majority RIL rule for multiple potential Defs)

o Issue: was the defect introduced in manufacture, or after it left the store?

o Court excludes all reasonable inferences from which the jar could have been damaged after leaving store

▪ Rule: invited misuse is not misuse (promotion inviting people to cut off barcodes to redeem rebate)

• any misuse would only reduce damages under comparative neg, wouldn’t erase strict liability, even for Defs that didn’t run the promotion (Planters and glass company).

▪ Pl is not required to exclude every remote possibility that the defect was caused by other than Defs—similar to rationale in RIL (must only have been really likely).

o Rule: if it is the kind of accident that wouldn’t have occurred without a defect and if it’s reasonably certain that defect wasn’t introduced after the sale, the accident itself is evidence that product was defective when sold.

o Rule: a seller falling under the SL products liability law is still liable even if the defect was introduced before he got it with no fault on his part (here, K-mart)

▪ Seller v. Service provider

o Magrine v. Krasnica p.471: NL for dentist who is sued when needle breaks off in patient’s mouth (no SL-PL; could still try for negligence)

▪ Policy reasons behind SL in products liability do not apply to dentist( essential service for society, not like a commercial seller of products

• We don’t want to decrease activity level of medical providers

• We don’t want medical providers to “recoup costs” by raising prices

▪ Pl can still sue needle manufacturer in SL. But won’t this still raise costs to dentist and patients? Idea is that by imposing SL on the party best positioned to avoid the risk these costs will be less.

o Newmark v. Gimbel: L for hair salon whose employee uses a perming product that causes injury on Pl’ head.

▪ Would clearly have been liability if the salon had just sold her the product; no different that they put it on her head

▪ Distinguishes Magrine: hair salon is commercial enterprise, dentist is a profession.

• Dentist doesn’t advertise and no implied warranty of cure.

• Paramount role is furnishing opinions and services.

• Dentist services are essential; not luxury

• *Note: interesting how less important cases can trigger SL, but essential services only qualify for negligence ( worries about prices and activity levels trump.

o Keen v. Dominicks: is grocery store SL for defective shopping cart? NL( grocery stores don’t sell the carts.

o Peterson v. Lou Bachrodt: Pl run over by car sold by Def’s used car lot. Alleges SL for defective breaks.

▪ Under Restatement, there would be L( dealership was seller of cars.

▪ But general rule is that used car dealers (or sellers of used products) are not “sellers” for purposes of SL.

• Background assumption is that brakes became defective under first owner; so Pl probably couldn’t recover against manufacturer; most states don’t hold used dealers responsible for inspecting the cars they sell

• Also, if we hold used car dealers SL for this stuff, ppl won’t sell used cars.

▪ (Caveat emptor theory?; ppl generally know to take used cars to mechanics to get them checked out( driver/buyer should be liable? (under negligence))

o Nutting v. Ford: HP buys cars for employees to use, then auctions them off. Pl buys one at auction and it’s defective. Court finds for SL against HP.

▪ If HP didn’t introduce the defect, they can later recover from Ford, since car was bought new.

▪ More likely that defect was introduced by HP employees, in which case it’s their fault.

▪ Food

o Mexicali Rose v. Superior Ct: Pl chokes on chicken bone in enchilada served at Def restaurant. NL.

▪ Legal test determined by whether consumer should have expected the substance to be there. If it’s natural to the food (like bone) they should have expected, and there is no claim in SL or implied warranty (but still can try for negligence in preparation).

o Majority of jurisdictions impose SL for foreign substances in food. For natural substances, inquiry is whether diner reasonably should have expected to find it there.

▪ There are good reasons for SL where only one party can realistically take measures to avoid injuries. This operates for foreign substances, not natural ones.

o Ingestion rule( NL for Pl merely seeing a bug in his food and fainting (not just no SL). You have to ingest the defective food for causation to be met.

▪ Klages v. General Ordinance: Pl buys mace pen because it says it will rapidly vaporize the face of assailant and stop them in their tracks. Doesn’t dispel attack and he gets shot in the head ( SL.

o RS §402: one who is in the business of selling chattels and makes a public representation of material fact concerning character or quality of a chalet is subject to liability for harm caused by customer’s justifiable reliance.

DESIGN DEFECTS

▪ Restatement, Third Comment (on design defects and failure to warn)

o One who is in the business of selling products is liable for injuries caused by:

▪ defective design (where foreseeable risks could have been reduced by adoption of reasonable design alternative)

o design/failure to warn defects= allegation that the product conforms to the intended design, but that design itself or its sale without adequate warnings, renders the product not reasonably safe.

o Note the use of reasonableness language sounds a lot like negligence, though most courts still refer to liability as “strict”

▪ Limit comparative fault defenses

▪ Negligence might be too forgiving; even smaller manufacturers should be held to expert standard of knowledge for manufacturing community (focus on product, not conduct)

▪ Retailers are still strictly liable.

▪ Reasonableness inquiry is necessary because the evaluation is an external one based on advantages and disadvantages of the design (risk-utility balancing)( focus on optimal precautions balanced with care to be exercised by the consumer, since in many products not all risk can be designed out without defeating the product’s whole purpose.

▪ How to determine if design is “defective”?

o Majority approach looks more like a negligence inquiry; other approaches look more like SL

▪ Majority Approach (risk/utility): Dawson v. Chrysler, p.479: cop is paralyzed in car crash. Produces evidence that a stronger body frame would have protected him and that this alternative design was feasible. Def argues that they complied with federal safety standards and that softer body frame is actually safer in many kinds of accidents. Also would raise price $300. Jury finds for Pl and appellate court affirms

o Rule: If at the time a seller distributes a product, it is not reasonably fit, suitable and safe for its intended or reasonably foreseeable purposes, so that users are injured, then seller is responsible for damages.

▪ Whether a product is reasonably safe for intended use is determined by risk-utility analysis = if magnitude of scientifically perceivable danger outweighs benefits of design (sounds a lot like B ................
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